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Massachusetts appeals ruling on prisoner sex change

By Pauline Kim, CNN
September 28, 2012 -- Updated 1349 GMT (2149 HKT)
STORY HIGHLIGHTS
  • The state says it's giving Michelle Kosilek adequate treatment for her disorder
  • A federal judge ruled Sept. 6 that sex-change surgery was the only adequate treatment
  • Kosilek twice attempted to castrate herself, court documents show

(CNN) -- Massachusetts is appealing a federal judge's ruling that the state must pay for the sex-change surgery of a transsexual prison inmate.

"Following a thorough review of the decision, we believe the court failed to give due deference to the fact that the Department (of Correction) has and continues to provide adequate medical treatment to address inmate Kosilek's gender identity disorder," said Diane Wiffin, public affairs director for the Massachusetts Department of Correction, in a statement Wednesday.

In an unprecedented court order earlier this month, U. S. District Court Chief Judge Mark L. Wolf determined that sex-reassignment surgery was the "only adequate treatment" for Michelle Kosilek, who was previously known as Robert. Kosilek has been incarcerated in an all-male prison, serving a life sentence without parole for murdering his wife in 1990.

Wolf ruled "that there is no less intrusive means to correct the prolonged violation of Kosilek's Eighth Amendment right to adequate medical care."

State to finance inmate's sex change

Kosilek's attorney's office declined to comment Thursday, citing the pending appeal.

The ruling September 6 sparked some heated reaction.

U.S. Sen. Scott Brown, R-Massachusetts, said the court's decision was "an outrageous abuse of taxpayer dollars."

State Senate Minority Leader Bruce Tarr commended the Department of Correction in a statement Wednesday "for standing up and opposing this outrageous request and for taking the necessary action to prevent it from being legitimized by a legal decision."

There was no immediate reaction from the office of Gov. Deval Patrick.

Many from the transgender community say the ruling should stand.

"Prisoners have a right to necessary medical care, and this is indisputably medical care, as the very strong district court decision established. There really is no legal ground for this appeal," Jennifer Levi, the director of the Gay and Lesbian Advocates and Defenders' transgender rights project, said in a statement released Wednesday with the Massachusetts Transgender Political Coalition.

"Care that is medically necessary for prisoners cannot be denied based on public opinion," said Gunner Scott, executive director of the Massachusetts Transgender Political Coalition.

It wasn't until 1999, when Kosilek first filed suit after repeatedly asking the prison for treatment for her disorder, that the court recognized her medical needs, according to Frances Cohen, one of Kosilek's lawyers.

In 2002, the court found that the Department of Correction had refused to provide Kosilek with the proper medical treatment she needed, as had been prescribed by the department's doctors.

That year, Kosilek began to receive psychotherapy and hormone treatments.

According to the American Society of Plastic Surgeons, with all operations, therapy, hormone injections and electrolysis, the cost of sex reassignment surgery can range from $30,000 to $80,000.

Court documents show Kosilek attempted to castrate herself and tried to commit suicide twice while incarcerated in an all-male prison in Norfolk. The court ruling left it up to the Department of Correction to decide where Kosilek will be incarcerated after the surgery.

Treatment guidelines for Gender Identity Disorder in development

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