A transgender inmate wants to reject an agreement that would make her the first in Wisconsin given state-issued women's underwear in a male prison and instead continue her lawsuit seeking a taxpayer-funded sex change.
The settlement, obtained by The Associated Press under the open records law, would end years of litigation involving the inmate formerly known as Scott Konitzer, who filed a lawsuit in 2003 challenging Wisconsin's practice of not paying for inmates' sex changes. But Konitzer, an armed robber who now calls herself Donna Dawn, is trying to back out by saying she was coerced into accepting the agreement.
Konitzer, 45, has asked a judge to allow her to continue the lawsuit. Transgender rights' advocates say she is trying to be the nation's first transgender inmate to obtain a court-ordered sex change. A Massachusetts inmate also has a case pending.
Wisconsin officials said Wednesday they have already started to implement the settlement and will oppose any attempt to reopen the case.
Ineligible for parole until 2026, Konitzer has received state-funded hormone therapy for years under the prison system's standard practice to treat gender identity disorder.
Konitzer believes she's a woman trapped in a man's body, and the hormones have made her develop breasts and other feminine traits. She says she is suffering cruel and unusual punishment by not being allowed to have surgery to complete the change to female.
U.S. District Judge Charles Clevert ruled in May that her lawsuit could proceed to trial. He wrote that a jury could find prison officials "were deliberately indifferent to Konitzer's serious medical need" when they failed to give her the real-life experience of living as a woman, the next step of treatment for gender identity disorder.
Konitzer complained that prison officials did not allow her to wear female undergarments, use makeup, body hair removal products and anti-baldness medicine or refer to her as a woman. Konitzer has attempted to commit suicide and to castrate herself in prison.
Prison officials had refused to allow Konitzer to wear female undergarments, saying that would make Konitzer a target for potential sexual assault and other inmates would want to follow suit.
"If you let one inmate wear a bra and panties, they'll all want to wear a bra and panties," a prison security official testified during the case.
Clevert rejected those arguments. He noted medical experts determined she needed a bra and that a vest she had been given didn't provide support and was painful.
The judge also struck down as unconstitutional a state law, the only one of its kind in the nation and passed in response to Konitzer's lawsuit, that specified tax dollars could not be used to pay for inmates' sex changes or hormone treatments. Attorney General J.B. Van Hollen has appealed.
After his rulings, Clevert ordered mediation to try to settle Konitzer's claims. Under an agreement reached in September, Konitzer would be allowed to select from prison catalogs the underwear available to Wisconsin's female inmates.
The settlement would keep Konitzer at a male prison, Columbia Correctional Institution in Portage, but give her a private toilet and shower. The state would not oppose Konitzer's name change, would forgive $5,000 in debt including some legal fees and restitution and provide her with a six-month supply of Propecia to fight baldness.
Larry Dupuis, a lawyer for the American Civil Liberties Union of Wisconsin, said the settlement would be "a step forward" for transgender inmates. Prisons elsewhere have shown they can allow transgender inmates to live in their preferred genders without jeopardizing security, he said.
Dupuis said the settlement would not have closed the door on sex-change surgery. The settlement said Konitzer's hormone therapy would continue and prison officials would hire an outside medical specialist to evaluate her and make treatment recommendations.
But Konitzer asked Clevert last month to throw out the agreement. She claimed she was coerced into accepting the deal because the trial was set for two weeks after mediation, which did not leave her enough time to find a lawyer if she did not reach an agreement. Her original legal team withdrew in June.
Wisconsin Department of Justice spokesman Bill Cosh said the state believes the settlement is a "binding contract" and will oppose reopening the case. Corrections spokesman Tim LeMonds said the state is carrying out its obligations.
"The settlement agreement stops a drain on taxpayer resources by ending a seven-year court battle and avoids further, potentially costlier litigation," he said.
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