Inmate asks Supreme Court to reverse ruling denying sex-reassignment surgery



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FILE - In this Jan. 15, 1993 file photo, Michelle Kosilek, sits in Bristol County Superior Court, in New Bedford, Mass. On Monday, March 16, 2015, Kosilek's lawyers asked the U.S. Supreme Court to overturn a judge's ruling denying a request for taxpayer-funded sex-reassignment surgery for the inmate born as Robert Kosilek, who was convicted of murdering his wife in 1990. (AP Photo/Lisa Bul, File)


BOSTON — Lawyers for a transgender inmate convicted of murder asked the U.S. Supreme Court Monday to overturn a ruling denying her request for sex-reassignment surgery.

A federal judge ordered the Massachusetts Department of Correction to grant the surgery to Michelle Kosilek in 2012, finding that it was the "only adequate treatment" for Kosilek's severe gender dysphoria, also known as gender-identity disorder. That ruling was overturned in December by the 1st U.S. Circuit Court of Appeals.

Lawyers with Gay & Lesbian Advocates & Defenders told The Associated Press they asked the Supreme Court to grant a hearing or to reverse the ruling by the appeals court. They argue that the appeals court did not find "clear error" in the judge's ruling granting the surgery and therefore had no legal basis to overturn it.

Kosilek, born Robert Kosilek, is serving a life sentence for killing spouse Cheryl McCaul in 1990.

Now 65, Kosilek has fought to get the surgery for two decades. In 2002, Judge Mark Wolf found that the treatment Kosilek was receiving in prison was inadequate, but stopped short of ordering the surgery, finding that the Department of Correction had not violated her Eighth Amendment right against cruel and unusual punishment. After that, prison officials began to provide hormone treatments, electrolysis to remove facial hair, female clothing and personal items.

In 2005, Kosilek sued the Department of Correction again, arguing that the surgery was a medical necessity.

In 2012, Wolf became the first judge in the country to order sex-reassignment surgery as a remedy for an inmate's gender-identity disorder. Courts in other states have ordered hormone treatments, psychotherapy and other treatments, but not surgery. Wolf found that the Department of Correction had violated the cruel and unusual punishment clause of the Eighth Amendment by providing inadequate medical care to Kosilek.

A three-judge panel of the 1st U.S. Circuit Court of Appeals upheld Wolf's ruling, but the state appealed, citing security concerns about protecting Kosilek from sexual assaults if she completes her gender transition. She is currently housed in an all-male prison, but hopes to be transferred to the state's women's prison after the surgery.

In December, a divided appeals court overturned the ruling by a 3-2 vote.

Kosilek's lawyers argue that the appeals court overstepped its bounds and essentially re-tried the case.

"Their role is to defer to the trial judge on issues of fact," said Jennifer Levi, director of the Transgender Rights Project of GLAD, the Boston-based legal group that brought the lawsuit that led to Massachusetts becoming the first state in the country to legalize gay marriage.

"The meaning of the Eighth Amendment is only as rich as its application, so those words that require prisons to provide adequate medical care are hollow if you have a district judge that makes the kind of careful fact findings that Judge Wolf did who is then reversed on appeal without a demonstration of the error in his facts," Levi said.

Kosilek's lawyers also argue that the Eighth Amendment prohibits prison officials from denying necessary medical treatment to an inmate for non-medical reasons, including security concerns.

A message seeking comment was left Monday for the Department of Correction.

It is unclear when the Supreme Court will decide whether to hear the case. The court receives between 7,500 and 8,000 new cases in a term and agrees to review roughly 1 percent of those appeals.

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