Mass. Inmate's Sex-Change Demand Bolstered By Recent Rulings

In what could be a crucial, precedent-setting case in the history of sexuality and gender law, a prisoner wants the Massachusetts Department of Corrections to pay for a sex-change operation.

The story has been making headlines for more than a decade, but recent court rulings may have paved the way for Massachusetts to become the first state to pay for gender reassignment surgery.

Years Of Litigation

Jane Flavell Collins has been drawing courtroom sketches of Michelle Kosilek since the days when the name was "Robert" Kosilek.

"His hair makes him so remarkable," Collins said. "It's almost down to his waste and very wavy and curly and his nose is prominent."

Collins' sketch from yesterday's hearing featured Kosilek's ruby-red lips, fashionable pink-rimmed glasses and pronounced cheekbones.

"I thought they looked masculine, really," Collins said. "I guess that's part of my job to make him look exactly like he looks."

This case goes back more than 20 years. That's when Robert Kosilek got into a fight with his wife and strangled her to death with a wire. Later, while serving a life sentence in Norfolk County Jail, Kosilek legally changed his name to Michelle and began living as a woman. (We'll refer to her with the feminine pronoun from here on.)

Diagnosed with gender identity disorder (GID) by prison doctors, Kosilek sued the state corrections department for not providing her gender reassignment therapy. In 2002, she won, on the basis that the Eighth Amendment requires prisons to pay for all medical care deemed necessary. She's been receiving female hormone injections ever since.

"What Michelle Kosilek wants is what the Department of Corrections' clinicians and retained treatment experts have prescribed for her."

Frances Cohen, Kosilek’s lawyer

Pretty soon, though, Kosilek was back in court, claiming that the hormones weren't enough; she wants gender reassignment surgery. It was a golden gift to cable talk shows everywhere.

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.

Meanwhile, Kosilek's federal suit plodded along in Boston. It had been over a year since anything had happened when all the parties met in court Thursday. The presiding judge, Mark Wolf, chief judge of the Massachusetts District, has been a little busy lately with the Salvatore DiMasi and "Whitey" Bulger trials.

"I never forget this case, because I have four boxes relating to it next to my desk," Wolf grumbled bashfully from the bench.

As the judge has lingered over his decision, the legal landscape has changed around him, most recently in the case of Sandy Battista, a convicted child rapist who was born a man and who has been in prison since 1983.

Massachusetts denied Battista hormone therapy to treat GID on the basis that it would make her more vulnerable to sexual assault. But the U.S. First Circuit Court of Appeals sided with Battista.

"What you have in the Battista case is the First Circuit affirming a finding by the district court that there was a pattern and a predisposition of prejudice against gender identity disorder and that prison officials dragged their feet in responding to requests," said Frances Cohen, Kosilek's lawyer.

In plain English, the First Circuit said prison officials were hiding behind trumped-up concerns so as to avoid doing something they just didn't want to do. Cohen was in court yesterday making that same argument for her client.

“I understand the crime. I understand life in prison. It’s a different kind of prison to be imprisoned in the wrong body.”

Cynthia Tavilla, Kosilek's friend

"What Michelle Kosilek wants is what the Department of Corrections' clinicians and retained treatment experts have prescribed for her," Cohen said.

"And she's been living at [MCI-Norfolk as a woman] without incident?" Judge Wolf asked.

"That's my understanding," Cohen replied.

But it's not just about safety. The state argues the operation Kosilek wants is not medically necessary. In past hearings, both sides have brought in dueling medical experts to argue this point.

At Thursday's hearing, Wolf apologized that the process has taken so long. He asked for some new briefs and set another hearing in October.

'Imprisoned In The Wrong Body'

Arthur Leonard is a professor at New York Law School and an expert in GLBT law. He says if Wolf rules in Kosilek's favor, "that's a pretty big deal. Because so far, the courts have been reluctant to order prison authorities to provide gender transition surgery."

In fact, it's never happened before. But, Leonard says, times have changed.

"Let's say maybe 15, 20 years ago, judges would consider the whole idea of transsexualism, at least some judges would consider it to be sort of freakish and unbelievable, and many courts were just not convinced that this was something that was real," Leonard said.

Since then, medical experts have testified in numerous cases that GID is real and carries serious risks, including depression, self-mutilation and suicide. The National Commission on Correctional Health Care issued guidelines stating that sex reassignment surgery is a valid treatment option when deemed necessary by a doctor.

Remember that Wisconsin law banning prisons from paying for sex changes? A federal judge struck it down as unconstitutional, and just last week, that decision was upheld by the Seventh Circuit Court of Appeals.

"This is a point that the appeals court made in the Wisconsin case," Leonard said. "They said, 'We've seen evidence in this case that prison systems spend a lot of money on health care for a lot of different conditions, and that in fact, gender reassignment surgery is not out of ballpark for other things that they pay for.'"

Of course, if Wolf orders the taxpayers of Massachusetts to provide Michelle Kosilek with a sex-change operation, some people will cry foul. Outside the Moakley Courthouse in South Boston Wednesday, Cynthia Tavilla, a longtime friend of Kosilek's, answered the critics.

"I understand the crime," Tavilla said. "I understand life in prison. It's a different kind of prison to be imprisoned in the wrong body."

But even if Michelle Kosilek is released from her bodily prison, there will remain the matter of her brick-and-mortar prison. Where do you house a fully-transitioned, male-to-female transsexual? In the men's prison where she is now, or in a women's facility? At yesterday's hearing, Judge Wolf said he won't be surprised if that question results in a whole new round of litigation, if he rules in Kosilek's favor.