Last Updated:November 29 @ 05:55 pm

Inmate seeking gender change eligible for paid legal fees

By Denise LaVoie

BOSTON (AP) - A convicted murderer in Massachusetts who won the right to get a state-funded sex change is also eligible to have legal fees — expected to top $500,000 — paid as well, a federal judge ruled.

In a landmark decision, U.S. District Judge Mark Wolf earlier this month ordered the state Department of Correction to provide sex-reassignment surgery to Michelle Kosilek. Wolf found thatprison officials had violated Kosilek's Eighth Amendment right to protection against cruel and unusual punishment, and that the surgery is the "only adequate treatment" for Kosilek's gender-identity disorder.

Wolf has now found that Kosilek is also entitled to legal fees.

"Kosilek has prevailed on his claim that the defendant has violated his Eighth Amendment rights and is continuing to do so. Therefore, he is eligible to be awarded his reasonable attorney's fees and costs," Wolf wrote in an order entered in court Sunday.

Wolf's ruling does not say how much in legal costs Kosilek is eligible for, the case dates back years and the amount is "likely to be large," Wolf wrote.

Kosilek's attorney, Frances Cohen, said she has not yet done a final calculation or submitted a request for fees, but estimates that attorneys' fees will be comparable to the approximately $500,000 sought in the case of another transgender inmate who also sued the Department of Correction for treatment of gender-identity disorder.

Cohen said she and another lawyer who worked on Kosilek's case have offered to forego their fees if the Department of Correction agrees not to appeal Wolf's ruling. The lawyers would still seek reimbursement for an undetermined amount paid in out-of-pocket expenses, including the fees paid to their experts.

"The judge has discretion to make an award on the basis of a fee application. This has been a hard litigated case, and the law firms ... have spent a lot of time on the case," she said.

"The firms have offered to waive their fees in exchange for Miss Kosilek getting court-ordered relief without further appeal," Cohen said Monday.

DOC spokeswoman Diane Wiffin declined to comment, saying the department is still reviewing Wolf's ruling on legal fees. Wiffin said the department has not made a decision yet on whether to appeal Wolf's ruling ordering sex-reassignment surgery for Kosilek. The department has until Oct. 9 to file a notice of appeal.

In his ruling, Wolf gave Kosilek's lawyers until Oct. 4 to file a motion for attorneys' fees. He also ordered Department of Correction attorneys to meet with Kosilek's attorneys to see if they can come to an agreement on the amount of fees to be paid.

Kosilek, 63, was born male but lives as a woman in an all-male prison. Kosilek was named Robert when married to Cheryl Kosilek and convicted of murdering her in 1990.

Wolf's ruling marks the first time a judge has ordered prison officials to provide sex-reassignment surgery.

Kosilek first sued state prison officials 12 years ago. Two years later, Wolf ruled that Kosilek was entitled to treatment for gender-identity disorder, but stopped short of ordering surgery. Kosilek sued again in 2005, arguing that the surgery was a medical necessity. Kosilek has made two suicide attempts.

In opposing Kosilek's request, prison officials have repeatedly cited security concerns, saying that allowing her to have the surgery could make her a target for sexual assaults by other inmates.

Wolf, however, found that the DOC's security concerns are "either pretextual or can be dealt with."

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  1. BillzillaComment by Billzilla
    September 18, 2012 @ 1:03 pm

    Insanity! An incredibily idiotic ruling! What is this “judge” smoking?

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    • billwvComment by billwv
      September 18, 2012 @ 2:25 pm

      How do you spell i-m-p-e-a-c-h?

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    • BobinmsComment by Bobinms
      September 18, 2012 @ 8:17 pm

      Why don’t they just turn him/her loose?

      The state can no longer afford him.

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  2. lizzietookanaxeComment by lizzietookanaxe
    September 18, 2012 @ 4:44 pm

    So a senior citizen on a fixed income is a burden to society but this person is not?

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  3. sexysadieComment by sexysadie
    September 18, 2012 @ 5:15 pm

    Ummmm…where is this he/she going to be housed?? Next, it will be demanding to be transferred to a woman’s prison–maybe that is what it has wanted all along. UGH!

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    • billwvComment by billwv
      September 18, 2012 @ 5:37 pm

      Sadie from the picture I saw of this freak; he could not fool anyone that he’s a male [started to say a 'guy']. This is one sick dude and the judge is [aka] one sick dude.

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    • realitynowComment by realitynow
      September 19, 2012 @ 1:36 pm

      In some states, Indiana for one, transgender inmates are housed in administrative segregation at the women’s prison. I know only because I used to work in the DOC there, I do not believe for one minute though that the state would pay for gender reasignment surgery for an inmate or anyone else. This is in Massachusetts though where they do have state run health care so the question then becomes; would the state run health care system pay for this type of surgery for anyone and everyone who wanted it? I may be wrong but I just don’t see that happening. In any other state a judge wouldn’t be able to muddy up the thinking with the “cruel and unusual punishment” arguement because the inmate would not be getting the surgery on the outside either unless he/she was able to pay for it. In this case the arguement only works if the state would indeed have paid for the surgery had he/she not been incarcerated and as such,incarceration is preventing him/her from obtaining the desired “medical care”.
      I for one don’t believe that a convicted murderer should have the same rights as other citizens but in this country they do have the right to health care, so where do you draw the line?
      This look like a perfect example of liberalism run amuck. I think Romney himself sees the caveats inherent in any kind of state run health care system but this is what the voters in that state wanted AT THAT TIME.

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  4. Robert LaCoeComment by Robert LaCoe
    September 18, 2012 @ 5:27 pm

    This is what happens when we do not get involved in local elections. This judge was trained somewhere in the progressive line to destroy the country. Fits right in with communist goals of 1963.

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    • mofoComment by mofo
      September 19, 2012 @ 2:18 am

      This judge was appointed by Ronald Reagan, so you think Reagan was a big ole communist? Then the other comment not by you ” Can you spell impeach?”. Impeach who? Reagan? A little late for that! Would sure be nice to see at least one or 2 people with some common sense on here. For or against this ruling, it is small potatoes, why is no one talking about the $2.3 trillion dollars that Donald Rumsfield declared missing, unaccounted for, from defense department. He made this announcement the day before 9-11 and ever since hardly a mention in the news, who is too busy talking about welfare queens (no pun intended), and immigrants ruining our economy. I would much rather get an answer or at least someone asking the question where did those trillions go?

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    • billwvComment by billwv
      September 19, 2012 @ 10:04 am

      mofo: for your exclusive information Federal judges can be i-m-p-e-a-c-h-e-d. Oh, but you knew that all the time!

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  5. gavinwcaComment by gavinwca
    September 19, 2012 @ 12:15 pm

    Impeach this idiot judge now, congress do your job for once, judges are to interpret the law’s and constitution , not rewrite them.when crongress refuses to keep these judges in line. They loose there power to do so. And we loose our Freedom.

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  6. demarree1Comment by demarree1
    September 19, 2012 @ 2:07 pm

    What hell ever happened to common sense? This lunatic judge needs to be removed from the bench now!

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