A man serving a life sentence for the murder of his wife is asking a federal judge to order the state to pay for a sex-change operation for him, saying that denying him the surgery amounts to cruel and unusual punishment.
A psychiatrist testified Tuesday that he believes Robert Kosilek will kill himself if state correction officials refuse to allow the surgery and Kosilek is unable to complete his transformation into a woman.
Kosilek, 57, was convicted of strangling his wife, Cheryl, in 1990.
In 2002, U.S. District Judge Mark Wolf ruled that Kosilek — who now goes by the name of Michelle — was entitled to treatment for gender identity disorder, but stopped short of ordering the state to pay for the sex-change operation.
Since then, Kosilek has received psychotherapy, female hormone treatments and laser hair removal. Kosilek, who wears his hair long and tucked behind his ears, has developed larger breasts since beginning hormone treatments.
Operation ‘medically necessary’
Kosilek sued the Department of Correction for the second time last year, saying that numerous psychiatrists who had examined him — including two of the DOC's own experts — had determined that a sex-change operation is "medically necessary."
"We ask that gender identity disorder be treated like any other medical condition," said Kosilek's attorney, Frances Cohen.
Kosilek sat quietly in court Tuesday as his attorney and an attorney for the state Department of Correction made opening statements in a trial that is expected to last up to two weeks. Kosilek opted to have the case heard by Wolf instead of a jury.
During the 2002 trial, Kosilek testified that he has suffered from gender identity disorder since the age of 3. He said he had twice tried to kill himself and also tried to castrate himself.
The DOC's attorney, Richard McFarland, said that DOC Commissioner Kathleen Dennehy made the decision to deny surgery for Kosilek based on "significant safety and security concerns."
Risk at men’s, women’s prisons
McFarland said correction officials fear that if Kosilek has the surgery and returns — as a woman — to the all-male, medium-security prison in Norfolk where he is now serving his sentence, he could be a target for assault by male inmates. If he is transferred to the women's prison in Framingham, there are concerns he will pose a risk to female inmates there, McFarland said.
Two psychiatrists will testify that Kosilek functions "at a very high level" and that a sex-change operation is not medically necessary, McFarland said.
Neither side gave an estimate on the costs of the sex-change operation. Kosilek's attorney told Wolf she believes the DOC could argue that the surgery should be covered by the DOC's provider under its overall mental health contract.
Dr. George Richard Brown, a psychiatrist who said he has treated more than 1,000 patients with gender identity disorder since 1979, acknowledged that Kosilek's depression and anxiety have improved since he began receiving female hormones. But he said that improvement was based on Kosilek's sense of hope that he will be allowed to become a woman.
"I believe that she would kill herself," Brown said, when asked by Kosilek's attorney what would happen if Kosilek does not have a sex-change operation.
"I don't believe she would consider life worth living without hope for completion of her treatment plan," he said.