Conflict & Justice

Judge rules in favor of inmate's gender reassignment surgery


Michelle Kosilek has been living in an all-male prison as a woman since 1993. A judge in Massachusetts ruled yesterday that the Dept. of Correction should pay for gender reassignment surgery, saying that not addressing Kosilek's "serious medical need" would be a violation of her 8th Amendment rights.



In the first ruling of its kind, a judge in Boston has ruled that a transgendered inmate who identifies as female can receive gender reassignment surgery under the Eighth Amendment. 

Michelle Kosilek has been living as a female since being sentenced to life in prison after being convicted for murder. In 1993, Kosilek, then living as a man named Robert, strangled his wife, and has since changed her name to Michelle. She has attempted to self-castrate and commit suicide in prison, according to PinkNews.

US District Court Chief Judge Mark Wolf said yesterday in a 126-page ruling that not allowing Kosilek a medical procedure to address her "serious medical need" would violate her rights against cruel and unusual punishment, while noting that doctors had also been in favor of Kosilek receiving the procedure, reported

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“Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose,” Wolf wrote. “It is precisely the type of conduct the Eighth Amendment prohibits.”

The Associated Press reports, "Inmates in Colorado, California, Idaho and Wisconsin have sued unsuccessfully to try to get the surgery, making similar arguments that denying it violates the U.S. Constitution's protection against cruel and unusual punishment."

Gender Identity Disorder, or GID, is a medical — not a mental — illness generally described as being born the "wrong gender." People with GID associate with the opposite gender from that of their birth, and can seek corrective surgery to address it. It's also known as gender dysphoria, because many believe it's inappropriate to consider discomfort with gender identity a disorder, according to an ACLU factsheet.

Gunner Scott, executive director of the Massachusetts Transgender Political Coalition, said in statement yesterday, "As we have seen over the last few years with such organizations as the American Medical Association and the American Psychological Association, whose positions have included that gender reassignment, hormone therapy, and other medical treatments are medically necessary for transgender individuals and/or those who are suffering from gender dysphoria."

Judge Wolf is in line with the medical reasoning of the AMA and the APA, said Scott, who added that the MassTPC "looks forward to the day when all transgender individuals can have full and equal access and coverage to all medically necessary treatments, including gender reassignment surgery."

Massachusetts has consistently been a leader on transgender issues, and in November 2011, Governor Deval Patrick signed the Transgender Equal Rights Law, which protected transgender individuals from discrimination in employment, housing, education, and lending. However, gender reassignment surgery is not currently covered under Massachusetts state health insurance.

Kosilek first sued the Department of Correction (DOC) in 2000 to ask to have her medical needs addressed and paid for, just like any other medical problem another inmate might require treatment for.

"Everybody has the right to have their health care needs met, whether they are in prison or out on the streets," Kosilek said to AP last year. "People in the prisons who have bad hearts, hips or knees have surgery to repair those things. My medical needs are no less important or more important than the person in the cell next to me."

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The DOC, however, has repeatedly cited "security concerns," saying Kosilek would be open to violence and abuse from other prisoners, and DOC spokeswoman Diane Wiffin said of yesterday's ruling, "We are reviewing the decision and exploring our appellate options." 

Kosilek and her lawyer are pleased, says the AP, but the controversy over this ruling has already begun. The comments section on the Boston Globe's story alone are fiery, and Mass. Senator Scott Brown issued a statement calling the ruling an "outrageous abuse of taxpayer dollars."

"We have many big challenges facing us as a nation, but nowhere among those issues would I include providing sex change surgery to convicted murderers," Brown said. "I look forward to common sense prevailing and the ruling being overturned."