Massachusetts Inmate Sex-Change Ruling

BOSTON, MA. - In the first decision of its kind, a federal judge has ordered state officials to provide taxpayer-funded sex-change for a transsexual prisoner, after finding that the treatment is the only adequate care for the inmate’s gender identity disorder. District Court Chief Judge Mark L. Wolf said that the treatment for Michelle Kosilek, convicted of murder, had been prescribed by Department of Correction doctors. He said the only arguments for denying it were based on social bias against that type of surgery.

“This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized,” Wolf wrote in a landmark 127-page ruling Tuesday. “Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose. It is precisely the type of conduct the Eighth Amendment prohibits.”

Kosilek, now in her early 60s, was born Robert Kosilek, but by 1990 was transitioning to a female identity. She strangled her wife, Cheryl, in Mansfield that year.

During her trial, Kosilek wore women’s clothes and has legally changed her first name to Michelle. She has been staying in a men’s prison in Norfolk while taking hormones and developing female physical qualities. Under Globe policy, Kosilek is being referred to as a woman because that is the gender with which she identifies.

The judge did not say who should perform the surgery or where it should be conducted, leaving those decisions to state officials. The cost of the surgery ranges from $7,000 to more than $50,000, depending on the extent of cosmetic work, according to informational surgery and transgender websites.

It was not clear how much postsurgery care would have to be provided, though the state would bear that cost as well.

Wolf’s decision is the first time a judge has ruled that the sex change was necessary for a prisoner suffering from gender identity disorder, though it follows a series of rulings in Massachusetts and across a few parts of the country that have affirmed that some type of medical care is constitutionally required.

Last year, the US Court of Appeals for the First Circuit, the appellate court for much of New England, upheld a lower court decision ordering hormone treatment for a prisoner with gender identity disorder. Also last year, the US Court of Appeals for the Seventh Circuit struck down a Wisconsin law that prevented hormone treatment for inmates with the disorder.

Moreover, the US Tax Court in 2010 held that the costs of feminizing hormones and sex reassignment surgery for certain individuals were tax deductible, as they were necessary forms of medical care.

In Kosilek’s case, the care she has already received has been unsuccessful, she argued in court documents. When the case was first filed a decade ago, Wolf had ruled that treatment was necessary but stopped short of ordering the surgery. Kosilek sued again, saying the hormone treatments, laser hair removal, and psychotherapy she had received were insufficient to address severe anxiety and depression.

Kosilek has already tried to castrate himself and twice tried to commit suicide, once while taking the antidepressant Prozac. The Department of Correction’s own doctors have said that surgery is the only appropriate care for Kosilek.

In his ruling Tuesday, Wolf said that the department was acting “deliberately indifferent” in failing to provide the surgery now that Kosilek has continued to suffer “intense mental anguish,” a violation of his rights against cruel and unusual punishment.

“Prisoners have long been held to have a right to humane treatment, including a right to adequate care for their serious medical needs,” Wolf said, citing US Supreme Court rulings.

Wolf issued his ruling after he had held a trial in 2006 and several follow-up hearings in the years after, with testimony from doctors and specialists and state prison officials.

A spokeswoman for the state Department of Correction said Tuesday only that, “We are reviewing the decision and exploring our appellate options.”

The department, under multiple administrations, has opposed the surgery since Kosilek first brought the case. State legislators have long fought against it as well, arguing that taxpayers should not be funding a prisoner’s decision for a sex reassignment.

On Tuesday, US Senator Scott Brown released a statement saying: “This is an outrageous abuse of taxpayer dollars. We have many big challenges facing us as a nation, but nowhere among those issues would I include providing sex-change surgery to convicted murderers.”

Sources:
http://www.boston.com/metrodesk/2012/09/04/federal-judge-rules-state-mus...

http://www.globalpost.com/dispatches/globalpost-blogs/weird-wide-web/us-...

NIJO NOTES: Many courts have ruled opposite of this historically in determining deliberate indifference. Consult with your legal counsel to determine your own policies and procedures governing this issue. We will continue to keep you posted as news and other cases develop, as this will likely be appealed.

Read more: http://www.ksl.com/?sid=21999245&section=us

PUBLISHED: September 5, 2012
BY: The Associated Press - Denise Lavoie