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Ruling on Mass. inmate’s sex change is fought

State disputes necessity for surgery

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 Tuesday to a federal appeals court.

US 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.

On Tuesday, Department of Correction lawyer Richard McFarland told the US Court of Appeals for the First Circuit 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’’ and has not attempted suicide in 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, 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 attempted suicide before ­trial, said Cohen.

Kosilek, formerly known as Robert, was convicted in the 1990 murder of his wife, Cheryl.

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.


‘‘She has been a model prisoner,’’ Cohen said.

The Department of Correction had argued that prison officials were concerned about protecting Kosilek from sexual assault if she were allowed to complete her transformation into a woman.

But Cohen told the court that Kosilek has received ­female hormone treatments and has lived at the state prison in Norfolk for more than 20 years ‘‘without incident.’’

McFarland, however, cited testimony from prison officials who said they were concerned about sending Kosilek back to the male prison after surgery. He disputed Wolf’s finding that the security concerns expressed by prison ­officials were ‘‘either pretextual or can be dealt with.’’

The Appeals Court took the case under advisement and is expected to rule within three months.

After the hearing, Cohen said the various treatments Kosilek has received have not been enough to ameliorate her disorder.