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Appeals court upholds inmate’s right to have taxpayer-funded sex change surgery

For the first time in US history, federal judges in the US state of Massachusetts have upheld a court ruling entitling a tax-payer funded sex-change operation for a transsexual prisoner convicted of murder.

“Having carefully considered the relevant law and the  extensive factual record, we affirm the judgment of the district  court,” a three-judge panel of the US Court of Appeals for  the First Circuit ruled on Friday. The 2-1 ruling in favor of the  original decision can still be appealed in the US Supreme Court.

The federal decision refers to the ruling of US District Judge  Mark Wolf who in September 2012 directed that the state  Department of Correction (DOC) ought to provide sex-reassignment  surgery for Michelle Kosilek who is serving a life sentence for  murder.

Wolf’s verdict found that the surgery was the only adequate  treatment for Kosilek’s severe gender identity disorder, arguing  that denying medical treatment would violate Kosilek’s Eighth  Amendment right.
“Courts nevertheless must not shrink from their obligation to   ‘enforce the constitutional rights of all ‘persons,’ including   ‘prisoners.’ And receiving medically necessary treatment is one  of those rights, even if that treatment strikes some as odd or  unorthodox,” the appeals court said, as cited by
The appeals court also stated that Wolf was “well-placed to  make the factual findings he made,” ruling that the DOC has  violated Kosilek’s Eighth Amendment rights. “The court did  not err in granting Kosilek the injunctive relief she  sought,” the appeals court ruled.  Robert Kosilek, aka Michelle Kosilek, now 64, was found guilty of  strangling his wife in Mansfield, Massachussets in 1990. Kosilek  legally changed her first name to Michelle while awaiting trial.  The convict has been incarcerated in a male prison in Norfolk  where she is referred to as a woman not as a man.

In 2000, Kosilek filed a law suit against the DOC, claiming  violation of her Eighth Amendment rights that prohibit the  federal government from imposing, among other things, cruel and  unusual punishments, including torture. After winning the case in  2002, Kosilek obtained access to hormone replacement therapy and  psychotherapy to treat her condition.

In 2006, Kosilek again sued the DOC for refusal to provide sex  reassignment surgery which her defense argued constituted   “cruel and unusual punishment” under the Eighth  Amendment. After Judge Wolf’s ruling of 2012 for the DOC to  provide Kosilek with the surgery, the state authorities appealed  the decision.

The LGBT community has welcomed the decision. In a civilized  society “there is a baseline of care that has to be provided  to all prisoners, including prisoners who are transgender,”   Jenifer Levi, director of GLAD’s Transgender Rights Project told

Despite winning the case, it still remains unclear who and when  will operate on the inmate, as no surgeon in Massachusetts is  willing to perform such operation on Kosilek. One unidentified  out-of-state doctor has stepped forward, according to the DOC,  but the surgeon does not have the approval of the state Board of  Registration in Medicine to perform sex-change operations.



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