Judge: Massachusetts must pay for murderer’s sex-change surgery

Massachusetts prison officials must provide a publicly funded sex reassignment surgery to an inmate serving a life sentence for killing his wife, a federal judge in Boston ruled Tuesday.

The decision, handed down by U.S. District Court Judge Mark Wolf, is believed to be the first such order by a judge in the nation, lawyer Frances S. Cohen of Bingham McCutchen LLP of Boston, said by telephone. Cohen is one of the attorneys representing Michelle Kosilek, who lives as a woman in an all-male prison.

State officials were reviewing the 126-page decision and “were exploring our appellate options,” said Diane Wiffin, director of public affairs for the state’s Department of Corrections, by telephone. She said she was barred by state law from discussing any of the specifics of the case.

Kosilek was born a man and, as Robert J. Kosilek, killed his wife in May 1990 and was convicted of murder. While an inmate serving a life sentence without the possibility of parole, Kosilek changed his name to Michelle and began legal proceedings against the state. Wolf in the past had ruled that Kosilek was entitled to be treated for gender-identity disorder, but stopped short of ordering surgery. In 2005, Kosilek sued, arguing that surgery was needed.

Wolf ruled that the evidence showed that Kosilek was a “transsexual – a man who truly believes that he is a female cruelly trapped in a male body. This belief has caused Kosilek to suffer intense mental anguish. This anguish has caused Kosilek to attempt to castrate himself and to attempt twice to kill himself while incarcerated, once while he was taking the antidepressant Prozac.”

There is no constitutional guarantee for healthcare, but the 8th Amendment prohibits cruel and unusual punishment for inmates, Wolf noted. Technically, Wolf issued an injunction backing Kosilek’s request for the surgery, arguing that it was “medical care for his serious medical need” -- severe gender identity disorder. Further, prison doctors have already decided that the surgery was “the only form of adequate medical care for his condition.”

In opposing the surgery, the state argued that it would create security concerns, but Wolf rejected that argument, saying it was insufficient to reject Kosilek’s position. The security concerns “are either pretextual or can be dealt with by the DOC. The court is allowing the DOC to decide how any real security issues, or other issues, should be addressed.”

Wolf stated that the conditions of the incarceration could come back to court.

“If the DOC decides that Kosilek must be segregated and locked up 23 hours a day to reasonably assure his safety, it is foreseeable that the court may be asked to decide whether that decision is reasonable and made in good faith.”

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