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A federal appeals court heard debate Tuesday about the potential for security problems if prison officials follow a Boston federal judge’s order to provide sex reassignment surgery to a convicted murderer diagnosed with severe gender identity disorder.

On April 2, the U.S. Court of Appeals for the First Circuit heard oral argument in Kosilek v. Spencer, the Massachusetts Department of Correction’s appeal of U.S. District Senior Judge Mark Wolf’s September order that the department provide the surgery to Michelle Kosilek.

Kosilek, whose first name originally was Robert, was convicted in 1992 and is serving a life sentence without the possibility of parole for murdering his wife.According to the record, she attempted self-castration and suicide while awaiting trial.

Numerous political and religious groups have weighed in as amici on both sides of the case.

Judges William Kayatta Jr., O. Rogeriee Thompson and Juan Torruella sat on the panel.

The discussion covered treatment options for the disorder, prison safety problems that might result if Kosilek underwent the operation and what deference the circuit must give Wolf’s findings.

Wolf ruled that the department violated the Eighth Amendment ban on cruel and unusual punishments when it denied Kosilek’s surgery request.

Both Thompson and Kayatta asked Department of Corrections senior litigation counsel Richard McFarland to talk about the case in light of the circuit’s standard for reviewing district court findings.

At one point, Kayatta noted that the department had not appealed the district court’s denial of its motion to challenge the plaintiff’s experts."How can we set aside fact-finding by the district court on this issue?" he asked.

"We believe…when you’re looking at a case that expands the Eight Amendment to new heights by placing new demands…on any department of correction as to the level of treatment required, it is an issue of law. [Here] an inmate has been 20 years in prison and by all accounts is doing quite well," McFarland replied.

Thompson later asked McFarland to address the plaintiff’s challenge to the department’s arguments about security risks. These include a higher escape risk should Kosikek be transferred to a women’s prison and other female prisoners’ reactions to Kosilek, who was convicted of a crime against a woman.

McFarland said the state offered arguments "reasonably" and without concern for public controversy.

Kosilek’s gender identity "is entirely female," said her lawyer,Frances Cohen, a Boston Bingham McCutchen partner. "She suffers mental anguish on a daily basis as a result of dissonance between her physical body and her mental state." Medical experts testified that the surgery is the only adequate treatment for her condition, she continued.

Thompson later asked how Cohen would address the defendant’s argument that they’ll be held hostage in the future to threats of suicide if they don’t allow the surgery.

"The district court found that it was incredible, simply not believable asa factual matter, that anyone would be willing to engage in sexual reassignment surgery and give up the male characteristics and male organs as a pretext," Cohen answered. "…The district court found that Michelle Kosilek was not feigning any condition."

In response to the security questions, Cohen noted that Kosilek turns 64 on April 10 and has no history of attempted escape. She also noted that Judge Wolf left it up to prison officials to decide where to house Kosilek post surgery.

She could be housed in a more restrictive setting or transferred to another state, Cohen said.
 

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