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to Section One | to Arts & Entertainment
posted Friday, March 20, 2015 - Volume 43 Issue 12
Trans prisoner appeals to SCOTUS for surgery
Section One
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Trans prisoner appeals to SCOTUS for surgery

by Mike Andrew - SGN Staff Writer

A Transgender prisoner serving a life sentence for murder has appealed to the U.S. Supreme Court to allow her to have sex-reassignment surgery.

Michelle Kosilek was convicted of killing her spouse, Cheryl McCaul, in 1990 and was sentenced to life in prison. At the time of the murder, she already identified as a woman and she has been fighting to complete her transition for 20 years while in prison. Kosilek is now 65.

Lawyers for GLAD (Gay and Lesbian Advocates and Defenders) filed her Supreme Court appeal, arguing that lower federal courts were mistaken in preventing her surgery.

In 2002 federal Judge Mark Wolf ruled that the Massachusetts Department of Correction did not need to provide surgery for her, but did need to offer her some transitional care. State prison officials then began to provide Kosilek with hormone treatments, electrolysis, woman's clothing, and other gender-appropriate personal items.

In 2005, Kosilek sued the Department of Correction again, arguing that sex-reassignment surgery was a medical necessity.

In 2012, Wolf became the first judge in the country to order sex-reassignment surgery as a remedy for an inmate's gender-identity disorder. Courts in other states have ordered hormone treatments, psychotherapy, and other treatments, but never surgery.

Wolf agreed with Kosilek's lawyers that the Department of Correction had violated the cruel and unusual punishment clause of the Eighth Amendment by failing to provide her with all necessary medical care.

A three-judge panel of the First U.S. Circuit Court of Appeals upheld Wolf's ruling, but the state appealed, asking for an en banc hearing at the First Circuit.

Prison officials said they could not guarantee Kosilek protection from possible sexual assault if she completed her transition in an all-male prison. In December last year, the First Circuit reversed Wolf's ruling by a 3-2 vote, denying Kosilek her surgery.

GLAD attorneys argue that the appeals court overstepped its bounds and essentially re-tried the case.

'Their role is to defer to the trial judge on issues of fact,' said Jennifer Levi, director of the Transgender Rights Project of GLAD.

'The meaning of the Eighth Amendment is only as rich as its application, so those words that require prisons to provide adequate medical care are hollow if you have a district judge that makes the kind of careful fact findings that Judge Wolf did who is then reversed on appeal without a demonstration of the error in his facts,' Levi added.

Kosilek's lawyers also argue that the Eighth Amendment prohibits prison officials from denying necessary medical treatment to an inmate for non-medical reasons, including security concerns.

The case has not yet been put on the conference docket for Supreme Court justices to discuss whether they wish to accept the appeal. The high court usually gets more than 7,500 appeals per term, and reviews only about 75 of them.

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