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to Section One | to Arts & Entertainment
posted Friday, January 24 2014 - Volume 42 Issue 04
Gender reassignment is necessary medical care, federal court says Massachusetts ordered to pay for prisoner's surgery
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Gender reassignment is necessary medical care, federal court says Massachusetts ordered to pay for prisoner's surgery

by Mike Andrew - SGN Staff Writer

A federal appeals court ruled on January 17 that the state of Massachusetts must pay for gender reassignment surgery for an inmate in the state prison system because the surgery is necessary medical care.

A three-judge panel of the First Circuit Court of Appeals upheld a 2012 Federal District Court decision that the Massachusetts Department of Corrections was required to pay for inmate Michelle Kosilek's surgery.

'Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court,' Judge Rogeriee Thompson wrote for the First Circuit.

Thompson was appointed to the First Circuit by President Obama after a career as a Rhode Island District Judge.

Kosilek, now 63, was named Robert Kosilek at birth, and has been trying to get gender reassignment surgery for more than a decade. She is serving a life sentence for murder.

Kosilek was convicted of killing her then-wife in 1990, after the wife discovered Kosilek wearing the wife's clothes.

Born into an abusive alcoholic family, Kosilek had a precarious childhood. By age 12, Kosilek reported, she was working as prostitute, although she was never sexually attracted to men. By 14 she had acquired a secret stash of women's clothes and befriended another Trans woman who taught her how to dress and apply makeup. By 16, she was addicted to heroin.

Although Kosilek earned a degree in psychology, found work as a substance abuse counselor, and was briefly on hormone therapy, she was never able to remain clean and sober.

In the 1970s, she was in prison, and housed with male inmates who raped her on several occasions. To avoid being targeted as a visibly Trans person, she stopped taking hormones about 1972.

Kosilek met and eventually married Cheryl McCaul. McCaul knew Kosilek identified as a woman, but believed their relationship could change Kosilek's gender identification. The couple had one son together, but Kosilek continued to identify as a woman and to dress in woman's clothes when McCaul was absent.

In a 1992 interview, Kosilek said that one day McCaul had returned home unexpectedly, found her dressed as a woman, became enraged, and threw boiling tea at her. In the ensuing scuffle, McCaul threatened to kill Kosilek with a kitchen knife, but Kosilek knocked her down and strangled her.

Kosilek first filed suit for the right to gender reassignment in 2000. In 2002 she won the right to hormone therapy and psychological counseling, but not surgery.

Federal District Judge Mark Wolf ruled in 2012 that Massachusetts had violated Kosilek's rights by denying her request for surgery, noting that the Corrections Department's own doctors had recommended it as necessary treatment for gender identity disorder.

The Department of Corrections challenged the decision, claiming that their refusal to provide gender reassignment surgery did not constitute inadequate medical care.

Prison officials claimed they were concerned for Kosilek's security, saying that allowing her to have the surgery would make her a target for sexual assaults by other inmates.

In a 2011 telephone interview with Associated Press, Kosilek said the surgery was a medical necessity, not a frivolous desire to change her appearance.

'Everybody has the right to have their health care needs met, whether they are in prison or out on the streets,' Kosilek said. '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.'

The National Center for Transgender Equality hailed the First Circuit's decision in the case.

'Today's decision affirms the increasing consensus among the courts that transgender-related healthcare is just healthcare and that people behind bars, including transgender people, have a constitutional right to healthcare,' NCTE Director Mara Keisling said in a statement.

'Decisions about treating serious healthcare decisions like sex reassignment surgery need to be made by doctors and patients, not prison authorities.'

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