Judge hears final arguments in inmate's sex-change

AP News
Posted: Dec 21, 2009 5:02 PM

A lawyer for a convicted murderer suing the state for a sex-change operation said Monday that the surgery is the only treatment that will significantly reduce the inmate's depression and anxiety.

But the state Department of Correction said Michelle Kosilek is highly functional and does not have a "serious medical need" that requires her to have the surgery.

Kosilek, born as Robert, was convicted of killing his wife, Cheryl, in 1990. Michelle Kosilek has been living as a woman in an all-male prison after receiving hormone treatments.

Lawyers for both sides delivered closing arguments Monday in Kosilek's lawsuit, which claims that the refusal of prison officials to provide the surgery amounts to cruel and unusual punishment and violates Kosilek's constitutional rights.

Kosilek's lawyer, Frances Cohen, said several experts who testified during the trial agreed that the risk of potential suicide by Kosilek will increase if she does not get sexual-reassignment surgery.

"It is not an elective treatment. It is a medical treatment, and the state takes on those obligations," Cohen said.

But Richard McFarland, an attorney for the Department of Correction, said prison officials have a policy "not to give in" to an inmate who threatens to commit suicide or go on a hunger strike.

"That would be seen as a reward to manipulative behavior by the inmates and staff," he said.

McFarland said Kosilek is doing well under her current treatment plan, which has included hormone treatments, psychotherapy and electrolysis treatments.

McFarland also cited the testimony of current and former DOC commissioners who agreed that allowing Kosilek to complete her transformation into a woman through the surgery would present "insurmountable" security risks, including her becoming a target for sexual assault by other inmates.

He denied Kosilek's claim that the security issues are a pretext and that the real reason for denying Kosilek the surgery is the political repercussions of the state paying for a sex-change operation for a convicted murderer.

"These are legitimate security concerns," he said.

Kosilek, who legally changed her name to Michelle in 1993, first sued the Department of Correction in 2000.

In 2002, Wolf ruled that Kosilek was entitled to treatment for gender identity disorder, but stopped short of ordering surgery.

Kosilek sued again in 2005, saying the hormone and hair removal treatments were not enough to relieve her anxiety and depression and that she had a "serious medical need" for the surgery.

Wolf did not indicate when he would issue his ruling.