FILE - In this Jan. 15, 1993 file photo, Robert J. Kosilek, now known as Michelle, sits in Bristol County Superior Court in New Bedford, Mass., where Kosilek was on trial for the May 1990 murder of his wife. Kosilek was convicted and lives as a woman in a Massachusetts prison serving a life sentence for murder. On Tuesday, April 2, 2013, a lawyer for prison officials asked a federal appeals court to overturn a 2012 ruling that would have granted a taxpayer-funded sex change for Kosilek. (AP Photo/Lisa Bul, file)
Tuesday, April 02, 2013 1:19 pm
Appeals court hears Mass. inmates sex change case
By DENISE LAVOIEAP Legal Affairs Writer
U.S. District Judge Mark Wolf ruled last year that the state Department of Correction must provide sex-reassignment surgery for Michelle Kosilek, who is serving a life sentence for murder.
On Tuesday, Department of Correction lawyer Richard McFarland told the 1st U.S. Circuit Court of Appeals that Kosilek has received adequate treatment for gender-identity disorder, including female hormone treatments, laser hair removal and psychotherapy. Those treatments, he said, have alleviated the stress and anxiety felt by Kosilek, who has been "highly functional" in prison and has not attempted suicide during the 20 years she has been in state prison.
"There was an effective treatment for that disorder," McFarland said. Wolf's ruling, he said, "expands the Eighth Amendment to new heights."
Kosilek's lawyer, Frances Cohen, however, told the three-judge panel that severe gender-identity disorder is a debilitating condition characterized by suicide attempts, castration and self-mutilation.
"She suffers ... mental anguish on a daily basis" and had attempted suicide before trial, said Cohen.
Kosilek, born Robert, was convicted in the 1990 murder of wife Cheryl Kosilek.
She first sued the Department of Correction in 2000. Two years later, Wolf found that Kosilek was entitled to treatment for gender-identity disorder but stopped short of ordering surgery. Kosilek sued again in 2005, arguing that the surgery is a medical necessity.
In his ruling in September, Wolf found that surgery is the "only adequate treatment" for Kosilek and there "there is no less intrusive means to correct the prolonged violation of Kosilek's Eighth Amendment right to adequate medical care."
Cohen said Kosilek, who turns 64 next week, has been living as a woman in an all-male prison throughout her incarceration, and corrects inmates and prison guards if they refer to her as a man.
"She has been a model prisoner," Cohen said.
The Department of Correction had argued that prison officials were concerned about protecting Kosilek from sexual assault if she were allowed to complete her transformation into a woman.
But Cohen told the court that Kosilek has received female hormone treatments and has lived at the state prison in Norfolk for more than 20 years "without incident."
McFarland, however, cited testimony from prison officials who said they were concerned about sending Kosilek back to the male prison after surgery. He disputed Wolf's finding that the security concerns expressed by prison officials were "either pretextual or can be dealt with."
The appeals court panel took the case under advisement and is expected to rule within three months.
After the hearing, Cohen said the various treatments Kosilek has received have not been enough to ameliorate her disorder.
"I think the Eighth Amendment imposes an obligation to provide medical services," Cohen said.
She said the surgery, which can cost anywhere from $10,000 to $50,000 or more, would be paid for under a contract the Department of Corrections has with its medical provider. The contract is based on the number of inmates, not the number of medical procedures provided, so would not increase the state's costs, she said.
"There's been no showing (the surgery) would move the needle at all," she said.