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High court rejects inmate’s appeal for sex-change surgery

 Michelle Kosilek
Michelle KosilekLisa Bul/AP File/Associated Press

The US Supreme Court has declined to hear an appeal from a convicted murderer from Massachusetts who sought taxpayer-funded sex-change surgery, a ruling that her supporters said would end her decades-long effort to change her gender while in prison.

The high court issued its decision in the case of Michelle Kosilek on Monday without comment.

“This is a terrible and inhumane result for Michelle,” said Jennifer Levi, director of the Transgender Rights Project for GLAD, the Boston group that represented Kosilek in the Supreme Court.

Kosilek was born Robert Kosilek and married Cheryl McCaul. He was convicted of killing her and is serving a life sentence. McCaul’s body was found in their Mansfield home in 1990. She had been strangled with a wire, nearly decapitating her, records show.

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The rejection of Kosilek’s appeals by the nation’s highest court appears to bring an end to Kosilek’s hope of getting the sex-change surgery at taxpayer’s expense, an idea that seemed inevitable after a groundbreaking ruling in 2012 by US District Court Judge Mark L. Wolf.

Wolf ordered the surgery after finding that the state’s failure to provide it to Kosilek violated the Constitution’s protections against “cruel and unusual punishment.” In his 127-page order, Wolf wrote that the surgery was the only adequate care for the inmate’s gender identity disorder and that Department of Correction doctors had prescribed the surgery.

The Department of Correction, which has fought with Kosilek in the courts for roughly 20 years, had identified a doctor willing to perform the surgery on Kosilek after Wolf issued his ruling.

A panel of the US Court of Appeals for the First Circuit in Boston backed Wolf and his order in favor of Kosilek. But the administration of former governor Deval Patrick appealed to the full circuit court and in a 3-2 ruling, it threw out Wolf’s order.

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On Monday, the Supreme Court left the 3-2 ruling intact.

Boston attorney Joseph S. Sulman, who has long been one of Kosilek’s lawyers, said in a statement with GLAD that Kosilek had endured “abominable” treatment from the state Correction Department whose leadership over the years has “defied their own experts in their eagerness to deny her desperately needed medical attention.”

Kosilek has legally changed her first name to Michelle, but continues to be held in a men’s medium security prison in Norfolk while taking hormones and developing female physical qualities. The Boston Globe identifies her as female because that is her preference.

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.

“We are satisfied with the court’s decision,’’ Correction Department spokesman Darren Duarte wrote in an e-mail about Monday’s Supreme Court action.

Courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs, but most have ordered hormone treatments and psychotherapy, not surgery.

Levi, of GLAD, said that will someday change.

“But it is just a matter of time before some prison somewhere is required to provide essential surgery, meeting the minimal constitutional obligations of adequate medical care for transgender people in prison,’’ she said in the statement.


Travis Andersen of the Globe staff contributed to this report. Material from the Associated Press was used in this report.

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