The federal judge who ordered a sex-change operation for a state prison inmate, ruling that the operation is the only appropriate remedy for a grave mental illness, agreed Tuesday to postpone enforcement of the decision until a higher court can hear an appeal.
US District Court Chief Judge Mark L. Wolf said in a hearing Tuesday that while he stands by his ruling and does not believe there are grounds for it to be overturned, it would be in the public’s best interest to postpone the irreversible surgery until the issue is decided by the US Court of Appeals.
Wolf ordered the surgery in a landmark ruling in September for Michelle Kosilek, a transgender inmate who as Robert Kosilek killed his wife in 1990.
“I recognized that the order is unprecedented,” Wolf said, adding that the case should be fully processed for the public’s benefit.
However, the judge ordered that the Department of Correction move forward with the operation swiftly if it loses its appeal. Moreover, the judge ordered the department to immediately make preparations for the surgery – “meaning, starting right now,” he said – by finding a location and doctor, for instance.
The department must also submit monthly letters to the court, so the judge can monitor its progress.
An attorney for Kosilek, Francis Cohen of Bingham McCutchen LLP, welcomed the judge’s order Tuesday, saying it will allow for the case to be fast-tracked by the Appeals Court. That court could hear oral arguments and possibly render a decision in six months, Cohen said.
“The Department of Correction is taking us to the First Circuit, and we are very confident we will get a full and fair hearing there,” she said, adding that Kosilek “is very grateful that she has had such a full, careful, and measured hearing in the District Court.”
Cohen said she did not challenge the stay of the judge’s ruling “provided there was a good-faith effort to take all necessary steps short of sexual reassignment surgery while the appeal progressed.”
The Correction Department could not be reached for comment on the decision. It is challenging Wolf’s September order based on two arguments: that the judge erred in disputing a former commissioner’s account that the sex change operation would create security risks and that there are alternatives to treating Kosilek other than the surgery.
Kosilek, 63, has argued she was undergoing the transformation into a woman at the time of the slaying of Cheryl Kosilek in Mansfield in 1990.
She was convicted as Robert Kosilek, but appeared at trial dressed like a woman, and she took the name Michelle in 1993.
She has been living as a woman in an all-male prison in Norfolk since she was convicted.
The Globe identifies Kosilek as a woman because that is her preferred gender.
In a separate decision on Tuesday, Wolf rejected Kosilek’s request to force the Correction Department and the court to use the female pronoun “her” when identifying Kosilek.
The judge also rejected a request Tuesday to force the department to provide electrolysis treatment, part of her gender transformation from male to female, saying the issue was not part of his September ruling.
He said Kosilek could file a request for the hair removal treatments as part of a second lawsuit.
The judge also scheduled a Dec. 19 hearing to decide whether he will award legal fees to Cohen.Milton J. Valencia can be
reached at MValencia@
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