BOSTON (AP) —A federal appeals court on Friday upheld a judge’s ruling granting a taxpayer-funded sex change operation for a transgender inmate serving a life sentence for a murder conviction, saying receiving medically necessary treatment is a constitutional right that must be protected “even if that treatment strikes some as odd or unorthodox.”
U.S. District Judge Mark Wolf ruled in 2012 that the state Department of Correction must provide sex reassignment surgery for Michelle Kosilek, who was born Robert Kosilek and is serving a life sentence for the killing of wife Cheryl McCaul, in 1990.
The Department of Correction challenged the ruling, arguing Kosilek has received adequate treatment for gender identity disorder, including female hormones, laser hair removal and psychotherapy. Prison officials said those treatments have eased the stress and anxiety felt by the 64-year-old Kosilek. They brought in experts who supported their argument that it was unnecessary to heed advice from independent medical experts who recommended she undergo the sex change surgery as the next step in treating her gender identity disorder.
The Department of Correction also argued it was concerned about protecting Kosilek, who is in an all-male prison, from sexual assaults if she were allowed to complete her transformation into a woman.
But judges cited a prison security review conducted after Kosilek lived safely as a woman with male prisoners, wearing women’s clothing, using women’s cosmetics and taking hormones that caused her to develop breasts. They said no security issues cropped up.
U.S. 1st Circuit Court of Appeals Judges O. Rogeriee Thompson and William Kayatta Jr. said in their ruling that courts must not shrink from their obligation to enforce the constitutional rights of all people, including prisoners.
“In sum, where at least three eminently qualified doctors testify without objection, in accord with widely accepted, published standards, that Kosilek suffers from a life-threatening disorder that renders surgery medically necessary, and the factfinder is convinced by that testimony, we are at a loss to see how this court can properly overrule that finding of fact. “
“And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” they wrote.
One member of the three-judge appeals panel, Judge Juan Torruella, disagreed, saying in a separate opinion the ruling went beyond the boundaries of protections offered under the Eighth Amendment.
Still, Kosilek’s lawyer Joseph Sulman said they were very happy her right to receive the treatment was affirmed.
“This decision is really about more than sexual reassignment surgery,” Sulman said. “It’s about the state’s requirement to treat all prisoners equally regardless of their gender identity or regardless of the circumstances.”
Kosilek was convicted of killing Cheryl Kosilek, a volunteer counselor at a drug re habilitation facility who thought she could cure Kosilek's gender identity disorder.
Kosilek first sued the Department of Correction in 2000. Two years later, the U.S. District Court judge found Kosilek was entitled to treatment for gender identity disorder but stopped short of ordering surgery. Kosilek sued again in 2005, arguing the surgery was a medical necessity.
Kosilek’s attorney Frances Cohen had previously said the surgery, which can cost more than $50,000, would be paid for under a contract the Department of Correction has with its medical provider. She said the contract is based on the number of inmates, not the number of medical procedures provided, so the surgery wouldn’t increase the state’s costs.
Democratic Gov. Deval Patrick had no immediate comment on the appeals court ruling or whether a further appeal to the U.S. Supreme Court was possible, a spokeswoman said. The Department of Correction was reviewing the court decision.
Gay & Lesbian Advocates & Defenders (GLAD) welcomed the First Circuit Court of Appeals ruling that the Commonwealth cannot deny Michelle Kosilek, an incarcerated transgender woman, gender reassignment surgery to treat her severe gender identity disorder.
“Like the district court before it, the First Circuit has affirmed that constitutional rights belong to everyone,” said Jenifer Levi, director of GLAD’s Transgender Rights Project. “The Appeals Court affirmed that the District Court properly found that Michelle Kosilek needed this lifesaving medical care. If she needed treatment for cancer or heart disease, this case would never have wound up in court. If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender. We hope that Michelle will now get the treatment that she desperately needs.”
Levi added, “Not appropriately treating a patient with gender dysphoria can lead to self-harm, and Michelle has in fact mutilated herself and attempted suicide twice while being denied care. This decision is important not just for Michelle, but for all transgender people who have been denied the health care they need.”
“This case is about nothing less and nothing other than the 8th Amendment of the U.S. Constitution, which provides inmates a right to medically necessary treatment,” said MassEquality executive director, Kara Coredini. “This constitutional guarantee applies to all inmates – including transgender inmates. Three doctors hired by the Massachusetts Department of Corrections concluded that sex reassignment surgery was medically necessary for this particular inmate, and MassEquality is encouraged that she will finally be afforded the course of treatment that she needs.”
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