Constitutional Law

En banc 1st Circuit ruling nixes state-funded sex-change surgery for prison inmate

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Reversing a federal district judge and a three-judge appellate panel, an en banc federal appeals court on Tuesday said Massachusetts does not have to pay for sex-change surgery for a prison inmate serving a life term for a domestic slaying.

Rejecting an argument that refusing needed medical treatment for Michelle Kosilek violates her Eighth Amendment right to be protected from cruel and unusual punishment, the Boston-based 1st U.S. Circuit Court of Appeals majority gave deference to security concerns raised by prison officials, the Boston Globe reports.

Kosilek, who was originally named Robert Kosilek, was convicted as a man in the 1990 strangulation death of his wife, Cheryl McCaul. Sentenced to life in an all-male prison without parole, Kosilek obtained a legal name change and has been living, as much as possible, as a woman. She has been 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.

Both sides acknowledged that Kosilek’s condition contributed to her depression and spurred her suicide attempts. However, the state department of correction argued that the surgery, which could potentially result in Kosilek’s being housed with women prisoners, was not the only appropriate medical option, pointing to disagreement among health care professionals.

Additionally, “the DOC’s security report reflected that significant concerns would also arise from housing a formerly male inmate—with a criminal history of extreme violence against a female domestic partner—within a female prison population containing high numbers of domestic violence survivors,’’ Judge Juan Torruella wrote in the majority’s opinion (PDF).

Two judges who voted in favor of requiring the state to pay for the surgery dissented separately, pointing to now-discredited decisions of a bygone era that OK’d racial discrimination and scientific support for the concept that hard-wired gender identity and physical anatomy may not correspond in some individuals.

It is not immediately clear whether lawyers for Kosilek can still hope to collect any of the $724,000 in legal fees the trial court planned to award them now that the case has been reversed and remanded.

Prior to the appeal, lawyers for Kosilek offered to waive their fees if the state accepted the district judge’s ruling in favor of their client.

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

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