A panel of appeals court judges will hear arguments this week in the case of a transgender inmate who won a decision to have sexual reassignment surgery while in prison.
Lawyers for the state Department of Correction and Michelle Kosilek will present arguments to the First U.S. Circuit Court of Appeals in Boston Tuesday morning. The state has appealed last year's controversial decision by former Chief Judge Mark Wolf that the DOC must provide Kosilek with a sex change because she suffers from a mental illness that must be treated.
"The district court's findings regarding the applicable standard of care and the subjective motivations of DOC officials are classic findings of fact that cannot be disturbed on appeal unless they are clearly erroneous," lawyers from the American Civil Liberties Union wrote in a brief supporting Kosilek.
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.
Wolf ordered in November that the sex change be put on hold while the appeal takes place. He stipulated that the DOC must provide monthly reports on their progress concerning the surgery should the appeal fail. In a filing earlier this year, the DOC said it has found five surgeons from out of state that can perform the surgery and willing to become licensed in Massachusetts to do the procedure here.
Both sides will have 15 minutes to deliver their oral arguments to the appeals court judges Tuesday. A decision will likely take months.
Follow Michael Naughton on Twitter @metrobosmike.