Convicted murderer Michelle Kosilek has lost the latest round of is-she-or-is-she-not entitled to gender reassignment surgery.
On Tuesday, the full First Circuit Court of Appeals reversed a previous ruling stating that the Massachusetts Department of Corrections (DOC) was required to provide Kosilek the surgery that several doctors — including some hired by the DOC itself — have testified is medically necessary.
The Gay & Lesbian Advocates & Defenders (GLAD) reports that Tuesday’s decision was divided, with a 3-2 majority. In her dissent, Circuit Judge Thompson wrote, “I am confident that I would not need to pen this dissent, over twenty years after Kosilek’s quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral. Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction.”
In January of this year, the Court of Appeals ruled to uphold the finding of District Court Judge Mark L. Wolf that the DOC was violating Kokilek’s 8th amendment right to freedom from cruel and unusual punishment by denying her treatment through “pretense, pretext, and prevarication.”
After Tuesday’s ruling, Jennifer Levi, director of GLAD’s Transgender Rights Project, said, “There is no scientific or medical basis for denying transgender people their health care needs. The consensus position of the medical community is that surgery may sometimes be essential treatment.”
A disagreement over the essentiality of the surgery seems to be at the heart of this case. In an interview with Boston’s WGBH News, David Zimmerman, publisher of Boston Spirit magazine, who earlier this year ran an interview with Kosilek, 64, stated that “Gender identity disorder is a medical disorder, not a psychological disorder. It’s been categorized as a medical disorder, and the treatment for that medical disorder is gender reassignment surgery.”
Adds James Lopata, Boston Spirit‘s editor in chief, “Medical care is required by the state for prisoners. If she needed a hip replacement, she would get it. If she needed a cancer treatment, she would get it. Why is this transgender issue different?”
Kosilek, who — as Robert Kosilek — had a long history of criminal activity before strangling wife Cheryl McCaul to death in 1990, is serving a life sentence without the possibility of parole.
Watch the WGBH interview below.