Murderer Wants State-Funded Sex Change
By MARY KATE BURKE, ABC News Law & Justice Unit
Sept. 15, 2006 —
When Michelle Kosilek was convicted of murder in 1993, she wasn't known as Michelle.
She was Robert and was sentenced as Robert to life without the possibility of parole for strangling his wife. While in prison, Kosilek, a self-identified transgendered woman, legally changed her name. Later, Kosilek also had her gender condition recognized by the court.
Now, Kosilek, 57, an inmate at a maximum security all-male prison in Norfolk, Mass., would like the Massachusetts Department of Corrections to pay for her sex-reassignment surgery.
Today, many legal and medical experts are getting behind her petition for a full sex change operation, citing the Eighth Amendment protection against cruel and unusual punishment. The decision now lies in U.S. District Court in Boston.
In 2002, Kosilek successfully petitioned the court to allow hormone treatment to facilitate female sex characteristics. Since the ruling, Kosilek also is permitted to receive electrolysis for the removal of facial hair as well as limited access to some female apparel and makeup.
Judge Mark Wolf ruled in the case that Kosilek did have a medical condition, in this case Gender Identity Disorder (GID), that was not being properly treated.
The recommended treatment at the time was hormone therapy, but Kosilek now says that is not enough and that if she is not able to undergo surgery, she will kill herself. Kosilek has already admitted an attempt at self-castration, ABC News has confirmed.
Medically Necessary?
Transgender activists support Kosilek's lawsuit as a precedent-setting event, but note that transgendered inmates still need to be treated on a case-by case basis.
"Of course I have absolutely no sympathy for this person on a personal level," said Shannon Minter, spokeswoman for the Transgender Law and Policy Institute and editor of the new book "Transgender Rights." "I think that with any transgender person there has to be an individual medical assessment. But for many, if not most, surgery is medically necessary."
Dr. Marshall Forstein, a psychiatrist who has treated more than 100 transgender individuals, believes that surgery is medically necessary in Kosilek's case.
Forstein was introduced to Kosilek during the 2002 proceedings. Brought into the case by the state, he came back with an opinion that Kosilek should indeed be treated and was then removed from the case. Forstein will testify for Kosilek in the inmate's federal trial.
"The state didn't like my evaluation [in 2002] so I was relieved of my role as testifying for the state. I thought it was over and then I was hired to testify on behalf of the plaintiff," Forstein told ABC News.
Forstein also notes that most people who oppose Kosilek's suit are generally against expensive medical care for a convicted murderer. Forstein tells ABC News that he believes this issues is about medical care for prisoners, not the issue of transgender rights.
"We have to wonder, if Saddam Hussein needed a transplant, would we give it to him?" Forstein said. Forstein's official recommendation is that Kosilek's surgery is necessary and is the most effective form of care for acute GID.
Massachusetts's state DOC mental health chief Dr. James Michaud has said that he does not believe the claim that sexual reassignment surgery is medically necessary. Opponents of the suit say that a sex change amounts to elective surgery and should not be funded by citizens.
Christopher Daley, spokesman for the Transgender Law Center, said surgery "is not appropriate in every case" of GID, but questions Michaud's assessment because, while a mental health official, he is not an expert in the narrow field of gender disorders.
"Whether or not it is elective surgery … that is up to the doctors. It's a very specialized field," Daley told ABC News. His organization has put out an extensive policy draft on how law enforcement should handle gender variant inmates.
The Future of Transgender Inmates
Policies on how to deal with transgender inmates vary from state to state and from prison to prison. As of now, Wisconsin is the only state that has a law specifically prohibiting the state from paying for such treatment, the Inmate Sex Change Prevention Act.
The law prohibits the use of "state funds or resources or federal funds to provide or facilitate that provision of hormonal therapy or sexual reassignment surgery … of a prisoner."
There have been similar acts proposed elsewhere but none that have passed and the ACLU is currently fighting the Wisconsin law.
As for Kosilek, her fate will be decided in federal court where Judge Mark Wolf, the same judge who ruled in her favor in 2002, will preside.
If granted the surgery, Kosilek's future prison housing remains uncertain but experts in transgendered law tell ABC News that prisoners are almost always housed based exclusively on genitalia.
The lawsuit will surely remind many people of the 1993 death of Cheryl Kosilek, but Michelle Kosilek claims in court that being trapped in a male body is like dying.
"The greatest loss is the dying I do inside a little bit every day," Kosilek has said.
Advocates such as Minter and Daley, however, hope that people unfamiliar with GID will not judge transsexual people based on the convicted killer.
"It is difficult to be her spokesperson," Shannon Minter said, "She is not typical of transgendered prisoners or transgendered people."
What do you think? 
