Inmate sex-change request gets new look

updated 8:37 p.m. ET April 1, 2008

BOSTON - The new commissioner of the state's prison system said Tuesday he plans to re-examine the case of a convicted killer suing the Department of Correction to try to get a sex-change operation.

Prison officials have strenuously opposed a request from Michelle Kosilek to have the surgery, saying it could make her a target for sexual assault by other inmates.

But DOC Commissioner Harold Clarke, who took over the department in November, said he has not decided yet whether to continue to fight Kosilek's request.

"I need to take a look at the information presented before I arrived, and with a fresh set of eyes, closely scrutinize it," Clarke said after a status hearing on Kosilek's federal lawsuit.

Robert Kosilek was sentenced to life in prison for murdering his wife, Cheryl, in 1990. Kosilek legally changed her name to Michelle in 1993 and has been living as a woman in an all-male prison in Norfolk.

Kosilek first sued the Department of Correction in 2000, claiming its refusal to pay for a sex-change operation violates her Eighth Amendment right against cruel and unusual punishment.

In 2002, U.S. District Judge Mark Wolf ruled that prison officials had failed to adequately treat Kosilek's gender identity disorder, but he stopped short of ordering the state to allow the sex-change operation. Wolf found that the DOC had not violated Kosilek's Eighth Amendment rights because Kosilek did not prove that the correction commissioner had shown "deliberate indifference" to Kosilek's medical needs.

Kosilek, 58, sued again in 2005, saying the hormone treatments, laser hair removal and psychotherapy she has received since Wolf's 2002 ruling were not enough to relieve her anxiety and depression.

For the past year, Wolf has been weighing whether to order the DOC to allow the surgery. Several medical experts who testified for Kosilek, as well as several doctors retained by the DOC's health provider, said they believe the surgery is medically necessary for Kosilek, who has twice tried to commit suicide in prison. But other experts hired by the DOC said Kosilek does not need the surgery.

Kosilek's request was strenuously opposed by Clarke's predecessor, Kathleen Dennehy, an appointee of Republican former Gov. Mitt Romney. Romney's successor, Gov. Deval Patrick, a Democrat, appointed Clarke.

Wolf ordered Clarke to attend Tuesday's hearing after Kosilek's attorneys said they wanted to hear Clarke's position on the case. He is scheduled to testify on May 12.

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