The state Department of Correction may face legal bills of roughly $2 million for unsuccessfully challenging what three prisoners say is their right to treatment for gender disorders.
The most high-profile of the cases is that of Michelle Kosilek, the convicted murderer who successfully sued for a sex change operation after doctors found it was the only appropriate treatment for a severe case of gender identity disorder. A judge earlier this month said he will order the state to pay $700,000 in legal fees to the inmate’s legal team.
But the state also raised challenges in at least two other similar cases — that of inmates
Sandy Battista and Ketheena Soneeya — losing both. If the inmates’ lawyers win the legal fees they are seeking, it could cost taxpayers an additional $1 million or more.
“The fact that they’re fighting these seems absurd,” said Neal E. Minahan, a lawyer with McDermott Will & Emery, who won a lawsuit forcing the state to provide hormone treatments for Battista, a convicted rapist who was born David Megarry. The Court of Appeals for the First Circuit upheld the decision last year in a ruling that lambasted the Department of Correction for refusing for years to provide treatment, even after it was prescribed by doctors.
“They have to see the writing is on the wall,” Minahan said. “They know where this is going, they know the law, they know what the doctors are saying.”
Asked about the challenges, the Department of Correction said it could not comment on pending litigation, but said in a statement that it uses “its best judgment when making decisions to appeal based on legal analysis, public safety, and justice interests, while also protecting the interests of the Commonwealth and its taxpayers.”
The department added, “Our appeals are based on beliefs that the courts have failed to recognize DOC’s legitimate safety and security concerns or to give due deference to the fact that the DOC has and continues to provide adequate medical treatment to inmates. We also strive to be responsible stewards of the public funds.”
And legal fees the Department of Correction could be forced to pay come in addition to the money it spends on its own lawyers and trial preparation.
The department has clearly gained some public support, with many — including family members of Kosilek’s murdered wife — questioning why the state should be paying for an inmate’s sex change operation.
But the court rulings are going against the state. When US District Court Chief Judge Mark L. Wolf said at a hearing two weeks ago that he will award more than $700,000 in legal fees to Kosilek’s defense team, it came after a decade of litigation. Although the Department of Correction’s appeal of Kosilek’s case would temporarily freeze the payments, Wolf warned, “the meter is running” while the appeal is pending.
Kosilek’s legal team, led by Frances S. Cohen of Bingham McCutchen LLP, has offered to forego the legal fees if the state chooses not to appeal the surgery, which can range from $10,000 to $50,000, but the state has refused.
In Sandy Battista’s case, her lawyer, Minahan, is seeking $748,000 in legal fees and $64,000 in reimbursement for several years litigating the case. The request is pending before US District Court Judge Douglas P. Woodlock.
Battista was involuntarily committed to a sexual treatment center in 2003. By then, she had started the process of transformation into a woman, according to court records. By 2004, she had seen doctors who agreed that she needed treatment for her disorder. But still, the department did not provide care, and instead sought a review by a new team of doctors. They, too, decided that treatment was required.
Then, the department cited security risks in refusing to provide the treatment.
Last year, the Court of Appeals found that it was “a pattern of delays.”
Minahan said the requests for the legal fees are not for profit — his law firm uses them to fund a charitable trust — but are meant to ensure that the constitutional abuses are not repeated.
“The point of these legal fees, the reason we seek them and the reason that provision exists is to try to change the mentality of challenging every constitutional claim through trial, and really costing time and dragging their feet in providing these constitutional rights to these prisoners,” he said.
In the third case, that of Soneeya, a team of lawyers is seeking $539,000 in fees and $29,000 in costs after a judge earlier this year ordered treatment, including counseling and hormone therapy if needed, for Soneeya, who was born Kenneth Hunt and was convicted in 1982 of murdering two women. That request is pending.
It is not unheard of for a prisoner to file a lawsuit asserting deprivation of constitutional rights, though laws such as the Prison Litigation Reform Act of 1996 help to filter cases so that only those with merit proceed in federal court.
And federal rules allow for a legal team to seek reimbursement for legal fees and costs if successful in proving that a plaintiff’s constitutional rights were deprived. The Disability Law Center for instance recently recovered $1.2 million in legal fees from a settlement it had reached with the Department of Correction over the treatment of mentally ill prisoners held in segregation.
The money will be split among the Disability Law Center and other nonprofit advocacy groups.
Kosilek’s case was unprecedented in that Wolf ruled that the sex change operation was the only appropriate treatment after other methods had failed. But the judge ruled a decade ago that the department had to provide some form of treatment, and other courts across the country have agreed in the years since, joining medical organizations in finding gender identity disorder to be a recognizable, debilitating illness.
Those rulings provided a harbinger for what seems to be the emerging legal standard on providing gender disorder treatment for prisoners.
Last year, the US Court of Appeals for the Seventh Circuit struck down a Wisconsin law that prevented hormone treatment for inmates with the disorder. The US Tax Court in 2010 held that the costs of feminizing hormones and sex reassignment surgery for certain individuals were tax deductible, as they were necessary forms of medical care.
Leslie Walker, executive director of Massachusetts Prisoners’ Legal Services, a prisoner-rights advocate group, said the courts have established that inmates are entitled to basic rights such as medical care against cruel and unusual punishment under the Eighth Amendment.
She acknowledged that the treatment of gender identity disorder for prisoners is a politically divisive issue. But she added that the Department of Correction has been gambling taxpayer money by choosing to challenge these cases, after the courts have already held that prisoners deserve treatment for medical disorders.
“We’re all lawyers, we’re all educated to the constitutional rights of prisoners,” she said. “These are not frivolous cases. But they are fighting them tooth and nail.”