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Judge orders Mass. to pay for inmate’s sex-change surgery

Kosilek in 1993, left, and in 1990, right.

Globe File Photos

Kosilek in 1993, left, and in 1990, right.

In the first decision of its kind, a federal judge has ordered state officials to provide a 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.

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“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 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.”

But transgender rights advocates welcomed Wolf’s decision, saying it recognized a standard of care set by national medical and psychological groups.

“These types of treatments are medically necessary, and we are looking forward to the day all transgender people can have full equal access to medically necessary care that they may need,” said Gunner Scott, of the Massachusetts Transgender Political Coalition.

Ben Klein, a senior attorney with Gay and Lesbian Advocates and Defenders, added that Wolf recognized that there is a high standard he must follow in ordering the surgery, but that he found that it was met in the case of Kosilek.

“The real issue is that if the denial of health care amounts to cruel and unusual punishment, then there’s an obligation to provide that treatment,” Klein said.

Wolf, who was nominated to the bench by President Reagan in 1985, has been known for issuing controversial rulings based on law, but that often go against public opinion. He was the judge, for instance, who ordered a retrial last year in the sentencing of convicted serial killer Gary Lee Sampson, after finding that a juror withheld information about his past.

He is also the judge who held the hearings that exposed the FBI’s scandalous relationship with James “Whitey” Bulger, and he has vacated convictions after finding prosecutorial wrongdoing.

In his ruling Tuesday, the judge said he expected the Department of Correction to follow the same standards of care that it would for any illness, noting he recently oversaw an agreement the state reached with prisoners’ rights advocates to provide better mental health treatment.

One of Kosilek’s lawyers, Frances S. Cohen, called the judge’s ruling courageous, and said “it was entirely consistent with recent decisions that have held that medical doctors should make decisions with respect to treatment for gender identity disorder.”

Joseph L. Sulman, another attorney, said, “The law has always been in our favor, and we thought once the law was applied to the facts, the judge really only could reach one conclusion.”

He added that he anticipates the state will “promptly arrange for Michelle Kosilek to receive her treatment.”

Globe researcher Jeremiah Manion contributed reporting. Milton J. Valencia can be reached at MValencia@globe.com. Follow him on Twitter @MiltonValencia
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