Constitutional Law

Must state pay for sex-change surgery? Prison seeks en banc 1st Circuit review of panel ruling

After a decision earlier this month by a divided federal appeals court panel that the state of Massachusetts must pay for a prison inmate’s sex-change surgery, the Department of Correction has decided to seek en banc review by the full Boston-based 1st U.S. Circuit Court of Appeals.

If the 1st Circuit upholds the Jan. 17 panel ruling (PDF) that the surgery is medically—and hence constitutionally—necessary to treat Michelle Kosilek’s gender identity disorder, Massachusetts would become the first state in the country to be required by a court order to fund such surgery, the Boston Globe (sub. req.) reports. The Associated Press also has a story.

“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,” prison officials said in a written statement provided to the media on Friday. The state argued on appeal that Kosilek would be at risk of being raped in prison if the surgery is performed; she has been staying in a men’s prison in Norfolk.

Born Robert Kosilek, the defendant married Cheryl Kosilek and was convicted as a man of her 1990 strangulation death before becoming known as Michelle Kosilek. Although the the state has provided hormone treatment, Kosilek’s experts say it is not sufficient, and the gender-reassignment surgery is medically required.

See also: “Federal appeals court says state must pay for inmate’s sex-change operation”

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