After dragging on for years, the request of Michelle Kosilek, a.k.a. Robert Kosilek, to have the state pay her medical costs for sex-reassignment surgery has finally reached the Court of Appeals for the First Circuit.
Back in 1990, Robert Kosilek (pictured above) killed his wife, Cheryl. He strangled her to death after she poured boiling tea on him. The details are pretty gruesome; Kosilek used a wire. He nearly decapitated her. He was found guilty of murder and sentenced to life in prison without the possibility of parole.
Kosilek is currently incarcerated in a Massachusetts prison, where he became she; Kosilek is now living as a woman “to the extent possible.” According to her lawyer, Frances Cohen, who I spoke to at some length last week, the "extent possible" translates to Kosilek growing her hair long and legally changing her name to Michelle.
Michelle is currently embroiled in a legal battle, which—after dragging on for years—has now reached the US Court of Appeals for the First Circuit—the judiciary tier right below the US Supreme Court. It's an interesting case and, because of its subject matter, has become national news. The two sides of the coin are equally compelling: On one side, you have the human rights of a prisoner. On the other, you have an individual who has severely violated that same code of morality.
Kosilek has sued the Massachusetts Department of Correction (DOC), saying that the agency must pay for sexual-reasignment surgery—the removal of the penis and the construction of female genitals—because she suffers from gender identity disorder. Denying medical treatment, Cohen tells me, violates the Eighth Amendment of the US Constitution, which bars cruel and unusual punishment.
“It’s not as if she’s being afforded something that's a luxury or elective or cosmetic,” she says. “It’s the prison doctors who have recommended this treatment.”
Unsurprisingly, the case has become a source of great controversy. The friends and family of Cheryl, Kosilek’s former wife and murder victim, have campaigned against the state paying for the surgery. Last autumn, then US Senator Scott Brown called a judge’s decision to go ahead with the surgery “an outrageous abuse of taxpayer dollars.”
Cohen, however, downplays the cost, saying medical services already paid for by the DOC would cover the surgery. A handful of surgeries, she says, “wouldn’t move the needle all that much.” She continued, saying that the only precedent the case would set would be “the DOC following the instruction of its own doctors.”
The ripple effect of the case is hard to gauge. In reference to Kosilek successfully suing for hormone treatment in 2002, Boston radio station WBUR reported that, “The case reverberated across the country. Inmates from Massachusetts to California started requesting hormone therapy, and a lot of them got it. In 2005, the Wisconsin state legislature passed a bill prohibiting that state’s corrections department from providing any treatment of the sort, and the law was swiftly challenged in court.”
Exact numbers are hard to come by. Cohen doesn't know how many inmates in the US suffer from gender identity disorder, and she's unsure if there is an international example of a state paying for a convicted murderer’s sex-change operation.
Then there’s the issue of where to house Kosilek should she become, anatomically speaking, a woman. Asked if Kosilek would be moved to a female prison if she had the surgery, Cohen says, “It’s too early to say.” The prison system’s lawyers have argued that the surgery could put Kosilek at increased risk of sexual assault. The department has also argued that the previous treatment, which included hormone pills and psychotherapy, should suffice.
Cohen disagrees. Gender identity disorder has lead Kosilek, who is now 64 years old, to attempt suicide, according to her lawyer. Kosilek has also attempted self-castration and self-mutilation in the past, says Cohen.
Last autumn, US District Court Chief Judge Mark Wolf declared that the state should pay for the surgery. Wolf, according to the Boston Globe, noted that a course of action "had been prescribed by Department of Correction doctors, and that the only justifications for denying the treatment were based on public opinion."
The department, which declined to comment when I got in touch, appealed the decision and a three-judge First Circuit panel heard arguments earlier this month. The panel is currently reviewing the matter and is expected to announce their decision before the end of summer, so place bets and hang on to the edge of your seat—or do whatever you normally do when you're awaiting interesting news—until then.
Follow Danny on Twitter: @DMacCash
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