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Judge Apologizes To Michelle Kosilek, Convicted Murderer Seeking Sex-Change

Michelle Kosilek

By DENISE LAVOIE   08/18/11 05:01 PM ET   AP

BOSTON -- A federal judge on Thursday apologized to a transgender inmate who has waited years for a ruling on whether she can get a taxpayer-funded sex-change operation.

Michelle Kosilek, a convicted murderer, first sued the Massachusetts Department of Correction 11 years ago. Two years later, U.S. District Judge Mark Wolf ruled that Kosilek was entitled to treatment for gender-identity disorder, but stopped short of ordering surgery to complete Kosilek's transformation into a woman.

Kosilek sued again in 2005, arguing that the female hormones she was receiving were not enough to relieve her anxiety and depression. Kosilek argued that the surgery was a medical necessity and that the Department of Correction was violating her constitutional rights by refusing to provide the operation.

Since 2006, Wolf has heard hundreds of hours of testimony from medical experts and others, but has not issued his ruling.

On Thursday, as Kosilek's lawyers made additional arguments citing recent rulings in other transgender cases, Wolf apologized for taking so long.

"I deeply regret that my decision in this case has not yet been issued," he said.

Wolf, the chief judge at U.S. District Court in Boston, has handled a number of noteworthy cases recently.

He presided over the trial of former House Speaker Salvatore DiMasi, who was convicted in June of conspiracy, extortion and other charges. He also is scheduled to rule on a request for a new trial in the federal death penalty case of Gary Sampson, a drifter from Abington who was sentenced to death after killing three people during a weeklong crime rampage in 2001.

Wolf told attorneys for Kosilek and the Department of Correction that he knows the case "is extremely important ... to all parties."

"I will continue to keep that in mind," he said.

Kosilek, born as Robert, was convicted of killing his wife in 1990. Kosilek, now 62, legally changed his name to Michelle in 1993. She has received hormone treatments and lives as a woman in the state prison in Norfolk, a medium-security, all-male facility.

During Thursday's hearing, Kosilek's lawyer, Frances Cohen, said a recent ruling by the 1st U.S. Circuit Court of Appeals in the case of another transgender inmate bolsters Kosilek's claim that prison officials are violating her constitutional rights by denying her the surgery.

In the ruling, the appeals court upheld a lower court judge who found the state Department of Correction had shown deliberate indifference to inmate Sandy Battista's medical needs by repeatedly denying her request for female hormone treatments. The court found that the department's claim that its decision was based on security concerns had been "undercut by a collection of pretexts, delays and misrepresentations."

Prison officials have cited similar security concerns in the Kosilek case, saying that allowing her to have the surgery could make her a target for sexual assaults by other inmates.

Cohen said the security concerns were also a pretext in the Kosilek case.

"It is remarkably similar to what we've been hearing in this court for quite some time," she said.

But Richard McFarland, a lawyer for the Department of Correction, said the prison officials are genuinely concerned about security problems if Kosilek is allowed to have the surgery.

He cited the testimony of former DOC Commissioner Kathleen Dennehy, who said the department's decision to deny the surgery had nothing to do the costs – about $20,000 – or the political ramifications of allowing an inmate to have a taxpayer-funded sex-change operation.

McFarland said the DOC has given Kosilek hormone treatments, female items and psychotherapy to help her deal with gender-identity disorder.

"We argue that the treatment provided to Miss Kosilek is adequate" and the surgery is not a medical necessity, McFarland said.

Wolf asked both sides to submit additional arguments in writing by Sept. 16. He tentatively scheduled another hearing for Oct. 11.

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06:53 PM on 08/23/2011
Ridiculous and a waste of taxpayer money!
10:48 PM on 08/22/2011
Then what about, law abiding transgender people who have not commit crime and can't afford the surgery. The government and taxpayers are not picking up their bill. So what makes it appropriate for taxpayer to paid for a surgery for some who has commit a crime. The law abiding citizen lives their life in turmoil because the can't afford the surgery. While the one in prison gets to fulfill their life long quest.
03:30 PM on 08/22/2011
Crime and surgery aside, all of this hateful speech towards transgender/transsexual people as a whole is uncalled for. For plenty of people who have gender dysphoria, surgery is medically necessary. It's medically necessary to prevent them from severe depression, and/or suicide. It's a preventitive measure. Also, it's not like she randomly woke up one day and decided she "felt like being a woman". It's not a "lifestyle choice", it's a recognized disorder. I can't think of anybody who would want to go through what trans people go through. Anyway, it's not necessary to call her "it, HE, He/she". No need to hurt and generalize a large group of people because you don't agree with one. I am not going to comment about whether or not I believe she should have the surgery covered. I just wanted to put out there that there has been a lot of unnecessary hateful words directed at trans people and not just Michelle.
11:05 AM on 08/22/2011
The whole thing is ridiculous. IF he weren't in prison he probably couldn't afford it so why does the state have to pay for it? Too bad that he is depressed. His wife is dead. As far as I am concerned he lost all his rights when he killed her. I can't believe the judge apologized to him/her.
10:10 AM on 08/22/2011
the DOC has given him hormone treatments and psychotherapy?!? proof the world has gone mad!
08:47 AM on 08/22/2011
Hey Michelle....NO..you lost your "rights" when you murdered your wife..divorce would have done the trick..hope your hormones are not right today..
01:16 AM on 08/22/2011
This is a perfect example of the state of the penal/judicial system in America today. Why did this request even make it out of his jail cell. Bread and water in...nothing comes out until it's a corpse.
07:46 PM on 08/21/2011
Why should this inmate have any rights. This person took away all the rights of the person he/she killed. Why should any rights or courtesy be shown this murderer. A convicted killer should be given exactly the rights and treatment recieved by the victim.........NONE. The victims children should be supported by the killer as well as all other care and maintenence required that would normally be provided them by the victim. The killer gets off easy. They go to jail, get all the meds for free, gets a whole lot more than 15 minutes of fame by constantly sueing and appealing. He killed to be the center of attention and is getting exactly what he craves. Everyone is paying him a lot of attention. He has it all. Why should he get anymore.....Like surgery............
06:06 PM on 08/21/2011
This person has already had a lot more years than their victim. I wonder how his wife (he was a he at the time of murder) feel about having her husband who murdered her now be able to get a sex change? I am all for people following their bliss, but he or she signed that right away, particularly on the tax payers dime, after committing murder. We're constantly told what bad shape the country is in financially. People are having problems feeding, sheltering and clothing themselves and their kids, but thousands need to be now spent on elective surgery for a convicted murderer? I get it's very important to this prisoner, but I wonder how important it is to tax payers who would be paying for it? Particularly the ones struggling right now.
05:48 PM on 08/21/2011
reply to Ankorite-This is why i said the term marxisum is politicaly incorrect. redistribution of wealth follows the same philosophy, forget party afiliation.how about this idea put the money into creating the new jobs this country needs. thats a win for all classes. including the gov to increase the tax base. it gives the poor jobs,the wealty buisness growth. it is a win win sitution. so it begs the question why has it not been proposed. perhaps because it is not the agenda.
05:06 PM on 08/21/2011
reply to Raltosk. history shows that any country that allows alien peeps to consume their resouces and take their jobs will eventually be taken over.history also shows that a democracy is a nation in decline. remember we started as a republic. one of the planks of the communist manifesto is. for nation leaders to always talk democracy, but grab power as quickly and as ruthlessly as you can.this can be equated to marxisum witch is a philosophy of lies that promises class equality.what it produces is class rivalry.while after redistribution of the wealth most of it is kept by the dictators to grow their oppressive over the people.
04:46 PM on 08/21/2011
SHE??????????
If "HE" had MURDERED his wife in Texas...... we wouldn't be having this conversation because "HE" would be where he deserves to be..... SIX FEET BELOW THE GRASS TAKING A DIRT BATH!
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06:04 PM on 08/21/2011
So true.
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04:45 PM on 08/21/2011
Aaaaaaaw, poor little murderer is depressed. How sad.
02:40 PM on 08/21/2011
I do NOT think this Killer should be allowed to have such a surgery. The condition is not life threatening, so hormone treatments should be enough. If and I MEAN IF it was a condition like Cancer or something like that, I might change my mind; but the tax payers should Not have to pay for an operation like that.
12:49 PM on 08/21/2011
I'm sorry, but the ONLY treatment this piece of human debris should get is lethal injection...
04:27 PM on 08/21/2011
lethal injection, is that the movie with Mel Gibson?