U.S. appeals court denies prisoner's right to tax-funded sex change

Reuters News
Posted: Dec 16, 2014 2:31 PM

By Scott Malone

BOSTON (Reuters) - A U.S. appeals court on Tuesday overturned a lower-court decision that a Massachusetts prisoner suffering from gender identity disorder was entitled to receive a taxpayer-funded sex change operation.

The state's prison system is not violating the prisoner's rights under the Eighth Amendment to the U.S. Constitution, which protects inmates from cruel and unusual punishment, by not providing gender reassignment surgery to Michele Kosilek, who was convicted of murder in 1992, the 1st U.S Circuit Court of Appeals ruled.

The inmate, who was born Robert Kosilek and has legally changed her name, is receiving hormone therapy and mental health treatment from the state Department of Corrections. Kosilek in 1990, prior to the name change, murdered his wife after she found him wearing her clothes.

"The DOC's decision not to provide SRS (sex reassignment surgery) does not illustrate severe obstinacy or disregard of Kosilek's medical needs," the appeals court ruled in a decision overturning a January ruling that Kosilek had been entitled to the surgery.

Kosilek twice attempted suicide while awaiting trial and filed her first suit seeking the surgery over 20 years ago.

Kosilek, now in her mid-60s, is at an all-male state prison about 20 miles (32 km) southwest of Boston. The appeals court found prison officials raised reasonable concerns about the security issues that would be raised by Kosilek if the surgery were performed.

"A denial of care may not amount to an Eighth Amendment violation if that decision is based in legitimate concerns regarding prisoner safety and institutional security," Judge John Torruella wrote.

A U.S. district judge ruled in 2012 that prison officials had violated Kosilek's rights and ordered the state to have the operation performed, although that order was suspended to give the state time to appeal.

In a dissenting opinion, Judge Rogierre Thompson said the court's decision was colored by Kosilek's decision to seek a surgery "that many see as strange or immoral."

"This decision will not stand the test of time," Thompson wrote.

While Kosilek was one of the first U.S. prisoners to make a high-profile plea for gender treatments, she is not alone.

Chelsea Manning, who served in the U.S. Army as Bradley Manning and was convicted last year of releasing classified documents to WikiLeaks, has also sought gender identity treatment.

The U.S. military said in July it would begin providing that treatment while Manning serves a 35-year sentence at Fort Leavenworth, Kansas.

(Reporting by Scott Malone; Editing by Bill Trott and Peter Cooney)