Inmate's bid to bill state for sex-change rejected

BOSTON -- An inmate who claims he is a woman trapped in a man's body should receive treatment for gender identity disorder, but cannot force the state to pay for a sex-change operation, a federal judge ruled Wednesday.

Michelle Kosilek, formerly known as Robert Kosilek, is serving a life sentence without possibility of parole for murdering his wife. He sued the state Department of Correction, claiming its refusal to provide the surgery and treatment violated his Eighth Amendment right against cruel and unusual punishment.

Kosilek, 53, who has legally changed his name, claims he suffers from depression, anxiety and stress because he was denied treatment. He said he has attempted suicide twice.

U.S. District Judge Mark Wolf ruled that the state has failed to adequately treat Kosilek's gender identity disorder, but said the mistake fell short of an Eighth Amendment violation because the inmate did not prove Correction Commissioner Michael Maloney had shown "deliberate indifference."

Wolf ordered Maloney to allow medical professionals to evaluate Kosilek and recommend treatment, including, at a minimum, psychotherapy. If therapy fails to alleviate Kosilek's depression, Maloney should also consider allowing Kosilek to receive female hormones, he said.

The judge left open the possibility of Kosilek receiving an operation if medical experts deemed it necessary. Unless correction officials changed their minds about giving Kosilek the surgery, the inmate would have to go to court again to get it.

Kosilek first began asking correction officials for treatment in 1990, after he was arrested in the killing of his 36-year-old wife, Cheryl. A jury convicted Kosilek in 1993, finding that he strangled his wife and left her body in the back of a car parked at a mall.

Kosilek's lawyer, Fran Cohen, said she was pleased with the ruling. She said it "establishes the principle that if you have severe mental illness, you're entitled to treatment just as you would be for any other medical condition."

Department of Correction spokesman Justin Latini said officials had not yet had a chance to thoroughly review the 91-page ruling, but said they were pleased the judge found they did not violate the Eighth Amendment.

Wolf wrote that Maloney's reluctance to address Kosilek's disorder "has been rooted in sincere security concerns and in a fear of public and political criticism as well."

Concerns about the security of allowing Kosilek to live as a woman in a male prison are legitimate, he wrote, but "a concern about political or public criticism for discharging a constitutional duty is not."

Maloney has said he lacks the authority to transfer a person sentenced as a male to the state's female prison in Framingham.