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 that prison 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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