Court upholds inmate’s right to sex change

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.

A federal appeals court upheld Friday a landmark order that the state must provide a taxpayer-funded sex change for a transgender prisoner convicted of murder, after finding that the surgery is the only adequate care for her gender identity disorder.

The US Court of Appeals for the First Circuit in Boston backed a lower court’s decision in 2012 that the treatment is necessary and that Massachusetts officials violated the prisoner’s constitutional rights by failing to provide the surgery. It would be the first court-ordered, state-funded sex change for a prisoner in the country.

The appeals court pointed out that the US Supreme Court has found that courts “must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners.”

“And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” the court said.

The 80-page decision paves the way for the urgent surgery for Michelle Kosilek, who was born a man and is serving a life sentence at the men’s prison in Norfolk. In his initial decision ordering the surgery in September 2012, US District Court Judge Mark L. Wolf ordered the state Department of Correction to make arrangements with a surgeon in advance, so that an operation could occur immediately if the appellate court upheld his decision.

The Department of Correction issued a brief statement Friday saying that it is reviewing the decision “to determine next steps.”

The department has been submitting monthly updates to the court, reporting that it is working to secure a temporary medical license for an unidentified out-of-state doctor to perform the surgery in Massachusetts.

Joseph L. Sulman, one of Kosilek’s attorneys, welcomed the decision as an affirmation of “our client’s right to be treated like any other prisoner who needs medical surgery, and we just look forward to her getting that surgery.”

He expressed concern, however, that the state has been delaying its effort to secure a license for a surgeon, and he called for a quick hearing so “they can explain what their intentions are.”

The cost of the surgery ranges from $7,000 to more than $50,000, depending on the extent of cosmetic work, according to international surgery and transgender websites. The state could be forced to pay more than $700,000 in legal fees to Kosilek’s lawyers.

The appeals court decision was split by a 2-to-1 vote. Circuit Judge Juan Torruella wrote a dissenting opinion saying the state was providing some treatment for Kosilek and that the failure to provide surgery did not rise to the level of cruel and unusual punishment defined by the courts. The state can ask the full court to hear the case.

Kosilek, now 64, was born Robert Kosilek. The Globe is referring to Kosilek as a woman because that is the gender with which she identifies.

She was convicted of murdering her wife, Cheryl, in Mansfield in 1990.

While in prison, Kosilek has lived as a woman and has changed her name to Michelle. She wears women’s clothes and cosmetics. She twice tried to commit suicide and attempted to castrate herself and began suing the state for treatment for a sex disorder 20 years ago.

Relatives of Kosilek’s wife, Cheryl, could not be reached for comment Friday, but have lashed out at Wolf’s decision, saying the state should not have to pay for her surgery.

The courts have long held that prisoners deserve medical care and necessary treatments, and in recent years the courts have recognized gender identity disorder as a “psychological condition involving a strong identification with the other gender.”

In a separate case in 2011, the appeals court in Boston had ordered the state to provide gender identity disorder treatment, including psychotherapy and hormone treatment, for a prisoner convicted of rape.

But Wolf, after holding two trials over the last decade and hearing from dozens of witnesses, found in Kosilek’s case that the state had provided psychotherapy and hormone treatment, but that the treatment was not adequate for her condition and that surgery was the only appropriate form of care.

The appeals court upheld his decision, concluding that Wolf “engaged in a careful and close analysis of the trial evidence.”

The court also supported Wolf’s finding that the state was “deliberately indifferent” in violating Kosilek’s constitutional rights against cruel and unusual punishment, the standard the judge would have to apply in ordering the surgery.

“There was evidence that the [Department of Correction] knew that Kosilek’s medical providers were recommending surgery, and in response the [department] dallied and disregarded,” the court said.

The group Gay & Lesbian Advocates & Defenders issued a statement hailing the ruling.

“Like the district court before it, the First Circuit has affirmed that constitutional rights belong to everyone,” said Jennifer Levi, director of GLAD’s Transgender Rights Project.