BOSTON — An appeals court has overturned a lower court ruling that ordered the state of Massachusetts to pay for the sex change operation of a man who was convicted of murder over 20 years ago.

As previously reported, Robert Kosilek has been serving a life sentence since the early 1990’s after being convicted of murdering his wife Cheryl. While in incarceration in an all-male prison, Kosilek decided to become a woman, and began going by the name “Michelle.” He also received hormone treatments so that he could start to feel more feminine.

Kosilek first sued the Massachusetts Department of Corrections in 2000, but the court only declared that the man had gender identity disorder, and would not go so far as to grant him a sex change operation. He sued again in 2005 after he stated that the hormones he was taking were not enough.

According to court documents, Kosilek “attempt[ed] to castrate himself and attempt[ed] twice to kill himself while incarcerated.”

U.S. District Judge Mark Wolf, nominated by then-President Ronald Reagan in 1985 and confirmed by a Republican majority, ordered the state in 2012 to pay for Kosilek’s operation. Wolf outlined that taxpayers should foot the bill for the $20,000 surgery, because denial of the operation would equate to a violation of the 8th Amendment, which prohibits cruel and unusual punishment.

“[Kosilek is] a man who truly believes that he is a female cruelly trapped in a male body,” Wolf wrote in the 126-page decision. “This belief has caused Kosilek to suffer intense mental anguish.”

“[S]urgery is the only adequate treatment,” he continued. “[T]here is no less intrusive means to correct the prolonged violation of Kosilek’s Eighth Amendment right to adequate medical care.”

The Massachusetts Department of Corrections (DOC) appealed the ruling to the First Circuit Court of Appeals, and in January, the three-judge panel upheld Wolf’s conclusion. But the decision was then appealed to the full bench en banc, and on Tuesday, the court overturned Wolf’s order 3-2, finding that the DOC did not violate Kosilek’s rights in granting the surgery and had valid concerns about safety ramifications as he wished to be transferred to a women’s prison post-op.

“After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment,” wrote Judge Juan R. Torruella, also nominated by Reagan, on behalf of the majority. “The district court … erred by substituting its own beliefs for those of multiple medical experts.”

“The DOC’s security report reflected that significant concerns would also arise from housing a formerly male inmate—with a criminal history of extreme violence against a female domestic partner—within a female prison population containing high numbers of domestic violence survivors,’’ he also noted.

The panel then reversed Wolf’s order and remanded the case back to the district court with instructions to dismiss Kosilek’s case. Judges O. Rogeriee Thompson and William J. Kayatta Jr. dissented.

Transgender organizations decried the ruling as being “appalling,” but the DOC applauded the decision.

“The Massachusetts Department of Correction won its appeal in the Michelle Kosilek case today,” wrote Public Safety Secretary Andrea Cabral. “The First Circuit Court of Appeals ruled that the medical and mental health care provided to Kosilek by the DOC did not violate the Eighth Amendment of the U.S. Constitution.”

“While we acknowledge the legitimacy of a gender identity disorder diagnosis, DOC’s appeal was 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,” she added.

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