ANALYSIS/OPINION:

Sixty-three-year-old Robert Kosilek sits in jail serving a life sentence without parole for the 1990 murder of his wife, Cheryl. In an unprecedented ruling, a federal district judge in Massachusetts ordered authorities of the Massachusetts Department of Corrections to provide Kosilek with a sex change operation at taxpayer expense.

In his 126-page opinion, Judge Mark Wolf held that the department’s refusal to provide the surgery constitutes “cruel and unusual punishment” in violation of the United States Constitution’s Eighth Amendment. He explained that he based his ruling on the recommendations of doctors at the Department of Corrections who believe that “sex reassignment” surgery is the “only form of adequate medical care” for Kosilek, who has been diagnosed with a severe gender identity disorder.

In 2000, Kosilek filed a lawsuit requesting treatment for his disorder. Judge Wolf ordered medical treatment but refrained from specifically ordering surgery at the time. Subsequently, in 2005, Kosilek filed another petition demanding a sex change operation, claiming that it was “medically necessary.”

Prison officials oppose the surgery, citing the fact that they would be unable to provide sufficient protection for him, in anticipation of the increased security risks that the surgery would pose. At least one study has shown that inmates who receive sex reassignment surgery are 13 times more likely to get sexually assaulted than inmates in the general population. Despite this fact, the judge proclaimed that security concerns are either “pretextual or can be dealt with.” The judge left it to the Department of Corrections‘ discretion to determine where Kosilek should be incarcerated post-surgery.

As it turns out, Robert Kosilek is already living as a woman in an all-male prison. Having received female hormone injections and psychotherapy since 2003, he now goes by the name “Michelle.” Nevertheless, he has tried to disfigure himself and twice attempted to commit suicide while in jail.

Ironically, convicted murderers and other felons are already guaranteed rights to health care that law-abiding citizens do not enjoy. A 2011 Supreme Court case ruled that the provision of adequate medical care for inmates is constitutionally required per the Eighth Amendment and that anything else is “incompatible with the concept of human dignity.” It is less clear that the Supreme Court would view transsexual operations as medically necessary.

Ben Klein, a senior attorney for Gay and Lesbian Advocates and Defenders, acknowledged this is the first time a court ordered a sex change operation as “necessary treatment for a transsexual inmate.” He claimed that the denial of various medical treatments is often based on “bias against transgender people rather than on science.”

The American Society of Plastic Surgeons estimates that the total cost of a sex change operation ranges from $30,000 to $80,000, including hormone injections and therapy.

Sen. Scott P. Brown of Massachusetts and some other Republican legislators are urging the Department of Corrections to appeal the ruling, pointing out that the decision is “an outrageous abuse of taxpayer dollars.”

In a follow-up ruling, Judge Wolf held that Kosilek is also entitled to have reasonable legal fees and other costs paid for by the state. As the case has been ongoing for years, Kosilek’s legal fees are expected to be upward of half a million dollars.

Francis Cohen and another of Kosilek’s attorneys offered to forgo their legal fees on the condition that the Department of Corrections refrains from exercising its right to appeal. They would, however, still seek reimbursement for out-of-pocket expenses, including fees paid to experts.

Department spokeswoman Diane Wiffin stated that the department is exploring its options and is thus far undecided as to whether or not it will appeal. Its deadline to file a notice of appeal is Oct. 7.

Some might consider male alteration to be cruel and unusual punishment. But in 2012, the Orwellian Court of Massachusetts has deemed that taxpayer-funded transsexual operations can be a constitutional right and the withholding of alterations can be “cruel and unusual.” This is American taxpayer dollars at work.

Deborah Weiss is a lawyer and co-author of “Saudi Arabia and the Global Islamic Terrorist Network” (Palgrave Macmillan, 2011).

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