A lawyer for the state Department of Correction said that a judge's controversial ruling forcing the agency to allow a transsexual inmate to have sexual reassignment surgery "expands the Eighth Amendment by new heights."
Attorney Richard McFarland made the argument during a hearing before a panel of judges for the 1st U.S. Circuit Court of Appeals. The panel heard arguments Tuesday morning on whether to reverse a district court judge's ruling that inmate Michelle Kosilek's sex change must be allowed to treat her gender identity disorder. The Department of Correction appealed the decision to the higher court.
Kosilek's attorney, Frances Cohen, argued that the sex change was recommended by various medical professionals including the psychiatrist heading the program contracted by the DOC.
"She lives with mental anguish on a daily basis," Cohen said, adding that Kosilek has lived the lifestyle of a woman for more than a year, as recommended for people considering a sex change.
Cohen said that Kosilek, 63, has been a model prisoner and that she corrects fellow inmates and corrections officers when they fail to use the correct pronouns.
When asked by reporters after the hearing, Cohen refused to comment on how much the surgery would cost. She said there's no evidence that the surgery would increase the cost of the plan the state purchases to cover its thousands of inmates.
Kosilek, who was born Robert, killed her wife in Mansfield more than two decades ago. The initial ruling that forces the state to allow and pay for the sex change stemmed from a lawsuit that Kosilek filed against the DOC claiming that refusing to provide her with the surgery violated her Eighth Amendment rights.
The ruling was put on hold while the appeal takes place.
A decision by the appeals court will likely take months.
Follow Michael Naughton on Twittter @metrobosmike.