For the First Time, Appeals Court Approves Taxpayer-Funded Sex Change for Convicted Murderer

Tuesday, January 21, 2014
Michelle Kosilek

A man convicted of murdering his wife more than 20 years ago should receive a sex change at taxpayer expense, a federal appellate court has ruled in a landmark decision.


The case involves Michelle L. Kosilek, who was known as Robert Kosilek when he strangled his wife in 1990. Shortly after his conviction, Kosilek asked state prison officials for surgery that would turn him into a woman.


He sued the state of Massachusetts in 2000 after officials denied his request. Among the reasons the state Department of Corrections gave for their refusal was that if Kosilek changed sex he would be subject to sexual assaults since he would still be housed in an all-male prison.


Kosilek’s first lawsuit was thrown out of court. He tried again with another lawsuit, which resulted in a favorable ruling in September 2012 by District Court Judge Mark Wolf.


The judge approved the surgery on grounds that Kosilek had a serious medical condition, gender identity disorder. Wolf added that to deny him the opportunity to become a woman would constitute a violation of his Eighth Amendment rights that prohibit cruel and unusual punishment.


The state appealed the ruling to the First Circuit Court of Appeals, which ruled in a split decision (2-1) last week that Wolf was correct in ordering the surgery, which will be paid for by taxpayers. The cost of the surgery has been estimated to be around $50,000.


The majority opinion stated the courts must enforce the rights of all people, including convicted criminals serving time.


“And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” the court said.


Dissenting Judge Juan R. Torruella disagreed, stating Wolf went too far in concluding Kosilek’s constitutional rights were being violated.


“The Eighth Amendment proscribes punishment, including punishment in the form of medical care so unconscionable as to fall below society’s minimum standards of decency,” Torruella wrote.


He added: “Its boundary simply does not reach, however, to instances of care that, although not ideal, illustrate neither an intent to harm nor the obstinate and unwarranted application of clearly imprudent care.”

-Noel Brinkerhoff


To Learn More:

Federal Appeals Court Upholds Mass. Inmate’s Right To Taxpayer-Funded Sex Change Surgery (by Martin Finucane, John R. Ellement and Milton J. Valencia, Boston Globe)

Appeals Court Upholds Sex Change for Mass. Inmate (by Rodrique Ngowi, Associated Press)

Michelle Kosilek (Wikipedia)


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