By Joe Palazzolo
- Associated Press
- In this January 1993 photo, Robert Kosilek sits in Bristol County Superior Court, where Kosilek was on trial for murdering his wife.
In a first-of-its-kind ruling, a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner
Chief U.S. District Judge Mark Wolf said he based his ruling on the recommendations of doctors at the commonwealth’s Department of Correction who prescribed sex-reassignment surgery as “the only form of adequate medical care” for Michelle Kosilek.
Kosilek, who used to go by “Robert,” is serving life in prison without the possibility of parole for the 1990 murder of his wife.
Judge Wolf, describing his 126-page order as “unprecedented,” said that denying Kosilek the surgery was a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
Prison officials opposed the operation, saying they couldn’t provide security for Kosilek were he to receive a sex change — an argument Judge Wolf described as “pretextual.” Several state legislators publicly opposed using taxpayer funds to pay for the sex-reassignment surgery.
Specialists have diagnosed Kosilek with severe gender identity disorder, and since 2003 he has been receiving female hormones. Kosilek lives in the general population of an all-male prison in Norfolk, Mass.
Despite the hormone treatment and psychotherapy, Kosilek has attempted to castrate himself and twice tried to commit suicide, according to court documents.
“It is unusual to treat a prisoner suffering severely from a gender identity disorder differently than the numerous inmates suffering from more familiar forms of mental illness,” wrote Judge Wolf, an appointee of President Ronald Reagan. “It is not permissible for prison officials to do so just because the fact that a gender identity disorder is a major mental illness not understood by much of the public and the required treatment for it is unpopular.”
Judge Wolf acknowledged that Mr. Kosilek, a convicted murderer, may receive better care for his disorder than many law-abiding Americans.
“It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care,” he wrote, pointing to a 2011 Supreme Court decision that said providing anything less was “incompatible with the concept of human dignity.”
Judge Wolf said correction officials, not himself, should decide where the surgery should take place, who should perform it and where Kosilek should be incarcerated after the surgery.
A spokeswoman for the Massachusetts Department of Correction, Diane Wiffin, said, ”We are reviewing the decision and exploring our appellate options.”
Sen. Scott Brown (R., Mass.) called the decision “an outrageous abuse of taxpayer dollars” and encouraged state officials to appeal the decision.
A lawyer for Kosilek, Frances Cohen of Bingham McCutchen LLP, said she was “pleased and gratified that we got such a thoughtful and full decision from the chief judge.”
Ms. Cohen said federal courts have considered about two dozen requests by prisoners for general treatment to gender identity disorder. Only a handful of courts have considered sex-reassignment surgery, she said.
Transgender