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After 20 Years, Transgender Inmate Is A Step Closer To Surgery

Originally published on Fri January 24, 2014 4:32 pm

Ever since she was convicted of a brutal murder in 1992, Michelle Kosilek has known that she'd be stuck in prison for the rest of her life.

That she can live with. The harder part was feeling she was stuck for life in the wrong body, says her attorney, Joseph Sulman.

"It's horrible," Sulman says. "I don't like to use the word 'torture,' but it's, you know, emotional claustrophobia and ... constant anxiety."

He says the only thing that kept Kosilek going was the hope of gender reassignment surgery. Born Robert, Kosilek began taking hormones and transitioning to a woman decades ago but has been waiting to take the last step.

"She signs all of her letters to me 'still smiling' ... based on the hope that one day she'll get the surgery she needs."

After a 20-year struggle, says Sulman, it was a huge relief to Kosilek when a federal appeals court ruled in her favor last week, backing a lower court decision that a prisoner's constitutional right to medical treatment applies "even if that treatment strikes some as odd or unorthodox." The appeals court also chided the state for having "dallied and disregarded" doctors' orders.

This would be the first time a prisoner in the U.S. gets gender reassignment surgery by court order. Massachusetts officials are considering whether or not to keep fighting the order; Sulman is now asking the court to force officials to schedule the surgery.

"The court, from my understanding, expects them to take all actions necessary — to do this as if they want to do this, whether or not they want to or not."

Prison officials have argued they have safety concerns and couldn't protect Kosilek after surgery. They also argued that by offering hormone treatment, they have met their obligation for adequate care. Advocates say transgender inmates frequently come up against arguments that their treatment is not medically necessary, but four federal appeals courts have ruled the other way.

It's becoming harder for prisons or private insurers to deny coverage for gender dysphoria, says Jennifer Levi, transgender rights project director for the group Gay and Lesbian Advocates and Defenders.

"The courts have said that the underlying condition is real and serious, and you can't simply deny medical care because of bias, stigma, public opinion," Levi says.

The original ruling mandating the surgery came just before the 2012 election, and it drew fire from both Republicans and Democrats in Massachusetts. Advocates hope Massachusetts Gov. Deval Patrick opts to drop the legal fight, while opponents are urging the administration not to throw in the towel — and to press the case up to the U.S. Supreme Court.

"We think it's frankly outrageous," says Peter Sprigg, senior fellow for policy studies at the Family Research Council. "I don't care how many doctors testify. This is not medical treatment; this is satisfying a social and political agenda. And I certainly hope that it would cause people to say, 'This has gone too far; let's call a halt to this.' "

But advocates counter that it's the court battle that's gone too far and wasted taxpayers' money. Sex change surgery can cost from $10,000 to $50,000, but the state is spending much more to make its case. And on top of that, since Kosilek won, the state also has to pay her legal fees, estimated at around $700,000.

Her lawyers have offered to waive that fee if the state would just drop the appeal and provide the surgery.

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Transcript

MELISSA BLOCK, HOST:

In Massachusetts, state officials are weighing whether to keep fighting a court order to provide sex change surgery for a transgender prisoner. A federal appeals court in Boston has upheld a lower court decision that the inmate is entitled to the surgery she's been fighting for, for 20 years.

As NPR's Tovia Smith reports, it would be the first time a prisoner in the U.S. would get the procedure by court order.

TOVIA SMITH, BYLINE: Michelle Kosilek has known, ever since she was convicted in 1992 of a brutal murder, that she'd be stuck in prison for the rest of her life. That she can live with. The harder part, says her attorney Joe Sulman, is feeling she was stuck for life in the wrong body.

JOSEPH SULMAN: It's horrible. I don't like to use the word torture, but it's, you know, emotional claustrophobia and emotional - constant anxiety.

SMITH: The only thing keeping Kosilek going, Sulman says, was hope for gender reassignment surgery. Born Robert, Kosilek began taking hormones and transitioning to a woman decades ago, but has been waiting to take the last step.

SULMAN: You know, she signs all of her letters to me still smiling and, you know, it's smiling based on the hope that one day she'll get the surgery she needs.

SMITH: Sulman says it was a huge relief to Kosilek when the appeals court ruled in her favor last week, backing a lower court decision that a prisoner's constitutional right to medical treatment applies, quote, "even if that treatment strikes some as odd or unorthodox." The appeals court also chided the state for having, quote, "dallied and disregarded" doctors' orders. Sulman is now asking the court to force officials to schedule the surgery.

SULMAN: The court, from my understanding, expects them to take all actions necessary, to do this as if they want to do this, whether or not they want to or not.

SMITH: Prison officials have argued they had safety concerns and couldn't protect Kosilek after surgery. They also argued that by offering hormone treatment, they had met their obligation for adequate care. Advocates say transgender inmates frequently come up against arguments that their treatment is not medically necessary, but four federal appeals courts have now ruled the other way. And advocate Jennifer Levi says it's becoming harder for prisons or private insurers to deny coverage for gender dysphoria.

JENNIFER LEVI: The courts have said that the underlying condition is real and serious, and you can't simply deny medical care because of bias, stigma, public opinion.

SMITH: The original ruling mandating the surgery just before the 2012 election drew fire from both Republicans and Democrats in Massachusetts. But advocates are hoping Massachusetts Governor Deval Patrick may opt now to just drop the legal fight. Opponents are urging the administration not to throw in the towel, as one put it, and to press the case up to the U.S. Supreme Court.

PETER SPRIGG: We think it's frankly outrageous.

SMITH: Peter Sprigg is with the Family Research Council.

SPRIGG: Frankly, I don't care how many doctors testify. This is not medical treatment. This is satisfying a social and political agenda. And I certainly hope that it would cause people to say, this has gone too far. Let's call a halt to this.

SMITH: But advocates counter it's the court battle that's gone too far and wasted taxpayers' money. Sex change surgery can cost from 10 to $50,000, but the state is spending much more than that to make its case. And since Kosilek won, the state also has to pay her legal fees, estimated at some $700,000. Kosilek's lawyers have been offering to waive that fee if the state would just drop the appeal and provide the surgery. Tovia Smith, NPR News, Boston.

ROBERT SIEGEL, HOST:

This is ALL THINGS CONSIDERED from NPR News. Transcript provided by NPR, Copyright NPR.