, Salem, MA


April 3, 2013

Appeals court hears inmate's sex change case

BOSTON — A ruling ordering Massachusetts officials to provide sex-change surgery for a transgender inmate takes prisoners' constitutional rights to adequate medical care to "new heights," a government lawyer argued yesterday to a federal appeals court.

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.

Yesterday, 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.

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