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

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."

Enlarge this image toggle caption Lisa Bul/AP Lisa Bul/AP

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.