Constitutional Law

Federal appeals court says state must pay for inmate's sex-change operation

In what is being billed as the first such decision by a federal appeals court, the Boston-based 1st U.S. Circuit Court of Appeals on Friday agreed with a trial court judge that the state of Massachusetts must pay for an inmate’s sex-change operation.

Upholding a 2012 decision by U.S. District Judge Mark Wolf, the majority said relevant law and an “extensive factual record” supported his ruling that the state must pay for inmate Michelle L. Kosilek’s surgery because it is medically necessary to treat her gender identity disorder, the Boston Globe reports.

Kosilek, now 64, was convicted as a man in the 1990 strangulation death of his wife, Cheryl McCaul, and was sentenced to life in an all-male prison without parole. While in prison, Kosilek obtained a legal name change and has been living, as much as possible, as a woman and seeking the sex-change operation for nearly 20 years. Gender identity disorder is recognized by psychiatrists, and physicians have said the surgery is appropriate and needed medical treatment for Kosilek, today’s opinion (PDF) notes.

At issue in the ruling was whether the prison in which Kosilek is being held violated the Eighth Amendment prohibition against cruel and unusual punishment by failing to provide adequate medical care.

A dissenting judge said the treatment the state correction department is already providing to Kosilek, including hormones, psychotherapy, electrolysis and female clothing and personal items is adequate.

“It is undisputed that surgery for Kosilek would be an appropriate option for treating her GID,” the dissent writes. “This fact is far from determinative, however, of whether a choice not to provide the surgery gives rise to a deprivation of constitutional magnitude.”

See also: “In Landmark Ruling, Federal Judge Says Sex-Change Surgery for Murder Inmate Is Medically Necessary” “Judge Tentatively Awards $724K in Attorney Fees for Inmate’s Successful Sex-Change Suit” “Counsel Will Waive Hefty Legal Fees If Mass. Doesn’t Appeal Inmate’s Sex-Change Surgery Award”

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