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Court denies inmate’s sex-change surgery

Reverses ruling in 2012 Kosilek case; Sex-change surgery funding is at issue

A divided federal Appeals Court in Boston on Tuesday overturned a lower court’s ruling that a Massachusetts prison inmate serving a life sentence for killing her spouse is entitled to sex-change surgery funded by taxpayers.

The 3-2 ruling from the US Circuit Court of Appeals for the First Circuit reversed a 2012 decision by US District Court Judge Mark L. Wolf, who ordered the surgery after finding the state’s failure to provide it to Michelle Kosilek, 65, violated the Eighth Amendment protection against cruel and unusual punishment.

Kosilek is serving a life sentence at MCI-Norfolk for killing her wife, Cheryl McCaul, in 1990, when Kosilek was known as Robert. She has lived as a woman in prison, and The Boston Globe identifies her as female because that is her preference.


“After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC [Department of Correction], we conclude that the district court erred,” Judge Juan R. Torruella wrote in the majority opinion.

Joseph L. Sulman, an attorney for Kosilek, blasted the ruling. He said Kosilek has not decided whether to seek a hearing before the US Supreme Court, which would be her final avenue of appeal.

“It’s a tragic decision on a personal level for Michelle Kosilek,” Sulman said. “But on a more global level, it’s a horrendous decision for many reasons. . . . It invites the Department of Correction to hire outside experts [to tesify against an inmate] whenever they want to deny a prisoner medical treatment.”

Sulman said Kosilek is holding up well after the legal setback. According to the majority ruling, she attempted suicide and self-castration while awaiting trial, but has not tried to harm herself in the past 20 years.

“She’s obviously disappointed,” Sulman said. “She’s remaining optimistic.”


McCaul’s family could not be reached for comment on Tuesday.

In January, a three-judge panel of the Appeals Court upheld Wolf’s decision, but the state then asked for an additional bench review, which led to Tuesday’s finding.

Wolf ruled in 2012 that the only medically appropriate treatment for Kosilek's condition of gender identity disorder was the surgery, which would be publicly funded since Kosilek is a state prison inmate.

But the Appeals Court ruled Tuesday that Wolf wrongly substituted his own judgment for that of medical professionals, who did not unanimously endorse the surgery as the only appropriate solution.

Wolf also went too far by “circumvent[ing] the deference owed to prison administrators’’ when the issue is the safety of inmates, Torruella wrote.

Prison officials have long conceded the legitimacy of Kosilek’s gender identity disorder and have provided care including therapy, hormone treatment, permanent facial hair removal, and female clothing and personal effects, court records show.

Andrea J. Cabral, secretary of the state Executive Office of Public Safety and Security, which oversees the state prison system, said in a statement that the state’s appeal “was based on the lower court’s significant expansion of the standard for what constitutes adequate care . . . and on substantial safety and security concerns regarding Ms. Kosilek’s postsurgery needs.”

In a passionate dissenting opinion, Judge O. Rogeriee Thompson questioned the security concerns and wrote that prejudice and “fear of the unfamiliar have undoubtedly played a role in this matter’s protraction.’’

“The precedent the majority creates is damaging,” Thompson wrote. “It . . . aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.’’


Advocates on both sides also weighed in.

The Massachusetts Family Institute, a conservative advocacy group that opposed Kosilek’s request, welcomed the ruling. “We hope that public officials will follow the court’s lead, recognizing it is not necessary to provide special accommodations for those with gender identity issues,” said Andrew Beckwith, its president.

But Jennifer Levi, director of the Transgender Rights Project of Gay & Lesbian Advocates & Defenders, called the decision “a testament to how much work remains to be done to get transgender people’s health care needs on par with others in the general public. ”

Previous coverage:

Mass. to appeal decision that convict is entitled to sex change

Yvonne Abraham: Ruling on prisoner’s sex-change a matter of principle

Court upholds inmate’s right to sex change

Hospital signals interest in Kosilek surgery

Martin Finucane of the Globe staff contributed to this report.