BOSTON — Massachusetts prison officials on Friday said they will appeal a decision that would force them to provide taxpayer-funded sex-reassignment surgery for an inmate serving a life sentence for murder.
The state Department of Correction said it will request a hearing by the full 1st U.S. Circuit Court of Appeals in the case of Michelle Kosilek.
Two weeks ago, a three-judge panel of the same court upheld a judge’s decision granting Kosilek’s request for the surgery. The rehearing would be before the full court of six justices.
The appeals court panel said receiving medically necessary treatment is a constitutional right that must be protected “even if that treatment strikes some as odd or unorthodox.” The department’s own medical experts have testified that they believe surgery is the only adequate treatment for Kosilek, who has twice tried to commit suicide.
There is no firm estimate of how much the surgery will cost, but it could be up to $50,000. Her attorney has said it would be covered by a Department of Correction contract with a medical provider and would not increase the state’s costs, but the Department of Correction has not confirmed that.
Michelle Kosilek, born Robert Kosilek, was convicted in the killing of spouse Cheryl Kosilek in 1990.
Kosilek sued, and after a lengthy legal battle, U.S. District Judge Mark Wolf ruled in 2012 that the state Department of Correction must provide the surgery.
Prison officials argued that Kosilek had received adequate treatment for gender identity disorder, including female hormones, laser hair removal and psychotherapy. They also cited security concerns, saying they were concerned about protecting Kosilek from sexual assaults if she is allowed to complete her gender transition. She is currently housed in a male prison but hopes to be housed in a female prison after the surgery.
“While we acknowledge the legitimacy of a gender identity disorder diagnosis, DOC’s appeal is based on the lower court’s significant expansion of the standard for what constitutes adequate care under the Eighth Amendment, and on substantial safety concerns regarding Ms. Kosilek’s post-surgery needs,” the DOC said in a statement Friday.
Kosilek’s attorney, Joseph Sulman, said he does not believe there is any reason for the appeals court to hold a rehearing and disagreed with the DOC’s claim that Wolf’s decision broadened the meaning of adequate care.
“The law has been established for a long time about what adequate care means under the Eight Amendment, and in this case, Judge Wolf simply applied the facts to the law and reached his decision,” Sulman said.
State Senate Minority Leader Bruce Tarr, R-Gloucester, praised the decision to appeal the ruling.
“Providing extraordinary surgery for someone who has committed first-degree murder isn’t a wise decision for state taxpayers and certainly doesn’t serve the interests of justice in Massachusetts,” Tarr said in a statement.