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Boston Appeals Court Sets Back Trans Prison Rights

(CN) - Transgender Massachusetts inmate Michelle Kosilek's two-decade quest for medical care in prison steered backward this week, as an appeals court in Boston reversed a decision that would have allowed her to have gender-reassignment surgery.

And a passionate dissent predicted that history will rank the majority's holding among such infamous decisions deeming "separate but equal" segregation (Plessy v. Ferguson) and Japanese-American internment (Korematsu v. United States) constitutional.

Kosilek's murder trial and subsequent attempts at health care in prison have been a source for sensational coverage in Boston for decades.

In 1990, Kosilek - known then as Robert - slit her wife's throat and hid her body in the trunk of their car.

The victim, Cheryl McCaul, had also been Kosilek's drug counselor. They married in the mistaken belief that a "good woman" could stamp out Kosilek's transgender identity, according to court papers.

After this attempt failed tragically, Kosilek's life, freedom and repressed identity unraveled through very public proceedings in Boston criminal court, where salacious reports of her female attire and requests to be known as Michelle filled the press.

Although she was condemned to spend life in prison two years after her crime, Kosilek's constitutional battles for the right to live as a woman behind bars have been in and out of court for decades since then.

U.S. District Judge Mark Wolf bucked the Department of Corrections "freeze frame" policy - allowing transgender inmates to continue, but not initiate, treatment - when he ordered the court to provide her hormone therapy in 2002.

Finding this treatment inadequate, Kosilek tried to commit suicide and attempted surgery on herself in prison.

A year later, University of Massachusetts doctor David Seil warned, "If transitioning to female is not within her control, Kosilek may take control of the situation by ending her own life."

Wolf took that prognosis to heart in a decision last year, ordering the prison to give Kosilek her sex-reassignment surgery (SRS) if her doctors deemed it necessary.

The 1st Circuit Court of Appeals reversed that ruling in a 117-page, 3-2 decision on Tuesday.

"We are not tasked today with deciding whether the refusal to provide SRS is uncompassionate or less than ideal," U.S. Circuit Judge Juan Torruella wrote for the majority. "Neither finding would support Kosilek's claims of a constitutional violation."

The majority accused Wolf of "substituting his own beliefs for those of multiple medical experts."

Wolf's earlier decision found that Corrections Department doctors had been substituting medical consensus surrounding gender dysphoria with their own religious beliefs.

Paul McHugh, a Johns Hopkins adviser to the prison's social worker Cynthia Osborne, urged the Vatican to condemn SRS as "religiously abhorrent," Wolf said.

But Torruella wrote that it was not the court's role to "second guess medical judgments" of the department when two options exist.

The majority's decision is an outlier among courts that have heard similar issues.

The 7th Circuit struck down a Wisconsin law that denied medical care to transgender prisoners in Fields v. Smith, and the 4th Circuit ordered that Ophelia Azriel De'lonta be allowed to surgically transation as a woman last year.

Circuit Judge Ojetta Rogeriee Thompson, who witnessed segregation growing up as a black teenager in segregated South Carolina, cited these cases in a stinging dissent that compared the majority's holding to the decision that forced her to attend high school in New York.

She chided her colleagues for turning "a blind eye to binding precedent." Like "separate but equal" policies, guidelines that refuse to provide state-funded medical care for transgender prisoners are fueled by bigotry, Thompson wrote.

"I am confident that I would not need to pen this dissent, over 20 years after Kosilek's quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral," Thompson wrote. "Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction."

Though she predicted the majority's decision "will not stand the test of time," Thompson added: "I only hope that day is not far in the future, for the precedent the majority creates is damaging."

Her colleague William Kayatta wrote a separate dissent lamenting that the majority's decision "locks in an answer that binds all trial courts in the circuit," as long as Massachusetts prisons remain in the charge of its current doctors.

Kosilek's lawyer did not immediately respond to a request for comment.

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