U.S. Supreme Court Declines to Hear Case of Murderer Seeking Sex Change Operation

KosilekWASHINGTON — The United States Supreme Court has declined to hear appeal from a male convicted murderer who is seeking a sex change operation behind bars and to be transferred to a women’s prison facility.

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.”

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The Massachusetts Department of Corrections (DOC) appealed the ruling to the First Circuit Court of Appeals, and in January 2014, the three-judge panel upheld Wolf’s conclusion. But the decision was then appealed to the full bench en banc, and in December, 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.

“[W]e 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.

But the ruling was then appealed to the U.S. Supreme Court, which declined to hear the case on Tuesday without comment, leaving the appeals court’s denial intact.

“The treatment of Michelle has been cruel and unusual,” Kosilek attorney Joseph Sulman remarked to the Boston Herald. “The DOC’s behavior has been abominable as they have repeatedly defied their own experts in their eagerness to deny her desperately needed medical attention.”

The Massachusetts DOC said that it agrees with the court.

“We are satisfied with the court’s decision,’’ spokesman Darren Duarte told the Boston Globe.

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