Mass. to appeal decision that murder convict Michelle Kosilek is entitled to sex change surgery

FILE - In this Jan. 15, 1993 file photo, Robert J. Kosilek, now known as Michelle Kosilek, sits in Bristol County Superior Court in New Bedford, Mass., where Kosilek was on trial for the May 1990 murder of his wife. Kosilek was convicted and lives as a woman in a Massachusetts prison serving a life sentence for murder. A federal appeals court on Friday, Jan. 17, 2014 upheld a judge's ruling granting a taxpayer-funded sex change operation for Kosilek, saying receiving medically necessary treatment is a constitutional right that must be protected “even if that treatment strikes some as odd or unorthodox.” (AP Photo/Lisa Bul, file)
A 1993 photo of Robert J. Kosilek in Bristol Superior Court in New Bedford, where Kosilek was on trial for the May 1990 murder of his wife.
Lisa Bul.File/AP

The Massachusetts Department of Correction said today it would appeal a decision by a federal appeals court that murder convict Michelle Kosilek is entitled to sex change surgery.

The department said it would appeal to the full bench of the US Court of Appeals for the First First Circuit. A three-judge panel of the court had ruled in Kosilek’s favor earlier this month, upholding a district court’s finding that the surgery was needed to address Kosilek’s gender identity disorder.

“While we acknowledge the legitimacy of a gender identity disorder diagnosis, DOC’s appeal is based on the lower court’s significant expansion of the standard for what constitutes adequate care under the Eighth Amendment, and on substantial safety and security concerns regarding Ms. Kosilek’s post-surgery needs,” the department said in a brief statement.

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The panel’s ruling on Jan. 17 upheld a 2012 decision by US District Court Judge Mark L. Wolf, who found that state officials had violated Kosilek’s rights to adequate prison medical treatment, which are guaranteed under the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Kosilek’s attorney, Joseph L. Sulman, said in a statement, “We’re disappointed, but we do not expect the full appeals court to grant the petition as the decision was based on well-established law. If the appeal is heard, we’re confident that the panel’s decision will be affirmed.”

The surgery would be the first court-ordered, state-funded sex change for a prisoner in the country.

The panel’s opinion, written by Judge O. Rogeriee Thompson, noted that the US Supreme Court has said courts “must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners.”

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

The state had argued before Wolf that the sex change would pose security problems because, among other things, the prison system would have to either place Kosilek as a woman in a men’s prison or as a former man who had killed his wife in a women’s prison. The state also argued that it was not wise to give into inmate threats of suicide (Kosilek had threatened suicide).

But the panel said it would not overturn Wolf’s findings that the state’s security claims were “largely false and greatly exaggerated.”

Kosilek, 64, was born Robert Kosilek. She is still anatomically male but has long held the belief that she is a woman trapped in a man’s body. Her wife, Cheryl, thought she could cure the gender identity disorder, the panel said in its opinion, but Kosilek’s desire to be female did not abate.

Kosilek murdered her wife in Mansfield in 1990 and was convicted in 1992. She began her legal battle for sex change surgery that year. The Globe is referring to Kosilek as a woman because that is the gender with which she identifies.