Judge apologizes for delay in ruling on trans inmate’s case

Michelle Kosilek

Kosilek’s case demanding that the state pay for her gender reassignment surgery dates back to 2006

DENISE LAVOIE | Associated Press

BOSTON — A federal judge has apologized to a transgender inmate who has waited years for a ruling on whether she can get a taxpayer-funded sex-change operation.

Michelle Kosilek, a convicted murderer, first sued the Massachusetts Department of Correction 11 years ago.

Two years later, U.S. District Judge Mark Wolf ruled that Kosilek was entitled to treatment for gender-identity disorder, but stopped short of ordering surgery to complete Kosilek’s transformation into a woman.

Kosilek sued again in 2005, arguing that the female hormones she was receiving were not enough to relieve her anxiety and depression. Kosilek argued that the surgery was a medical necessity and that the Department of Correction was violating her constitutional rights by refusing to provide the operation.

Since 2006, Wolf has heard hundreds of hours of testimony from medical experts and others, but has not issued his ruling.

On Thursday, Aug. 18, as Kosilek’s lawyers made additional arguments citing recent rulings in other transgender cases, Wolf apologized for taking so long.

“I deeply regret that my decision in this case has not yet been issued,” he said.

Wolf, the chief judge at U.S. District Court in Boston, has handled a number of noteworthy cases recently.

He presided over the trial of former House Speaker Salvatore DiMasi, who was convicted in June of conspiracy, extortion and other charges.

He also is scheduled to rule on a request for a new trial in the federal death penalty case of Gary Sampson, a drifter from Abington who was sentenced to death after killing three people during a weeklong crime rampage in 2001.

Wolf told attorneys for Kosilek and the Department of Correction that he knows the case “is extremely important … to all parties.”

“I will continue to keep that in mind,” he said.

Kosilek, born as Robert, was convicted of killing his wife in 1990.

Kosilek, now 62, legally changed his name to Michelle in 1993. She has received hormone treatments and lives as a woman in the state prison in Norfolk, a medium-security, all-male facility.

During the Aug. 18 hearing, Kosilek’s lawyer, Frances Cohen, said a recent ruling by the 1st U.S. Circuit Court of Appeals in the case of another transgender inmate bolsters Kosilek’s claim that prison officials are violating her constitutional rights by denying her the surgery.

In the ruling, the appeals court upheld a lower court judge who found the state Department of Correction had shown deliberate indifference to inmate Sandy Battista’s medical needs by repeatedly denying her request for female hormone treatments.

The court found that the department’s claim that its decision was based on security concerns had been “undercut by a collection of pretexts, delays and misrepresentations.”

Prison officials have cited similar security concerns in the Kosilek case, saying that allowing her to have the surgery could make her a target for sexual assaults by other inmates.

Cohen said the security concerns were also a pretext in the Kosilek case.

“It is remarkably similar to what we’ve been hearing in this court for quite some time,” she said.

But Richard McFarland, a lawyer for the Department of Correction, said the prison officials are genuinely concerned about security problems if Kosilek is allowed to have the surgery.

He cited the testimony of former DOC Commissioner Kathleen Dennehy, who said the department’s decision to deny the surgery had nothing to do the costs — about $20,000 — or the political ramifications of allowing an inmate to have a taxpayer-funded sex-change operation.

McFarland said the DOC has given Kosilek hormone treatments, female items and psychotherapy to help her deal with gender-identity disorder.

“We argue that the treatment provided to Miss Kosilek is adequate” and the surgery is not a medical necessity, McFarland said.

Wolf asked both sides to submit additional arguments in writing by Sept. 16. He tentatively scheduled another hearing for Oct. 11.

—  John Wright

More companies covering transgender surgery

List expected to grow as HRC adds benefit to Corporate Equality Index

LISA LEFF | Associated Press

SAN FRANCISCO — When Gina Duncan decided to undergo the medical treatment that would make her a woman, she had plenty to fear. The reactions of her children, her professional colleagues and friends. How her body would respond to hours on the operating table. If, at the end of it, she would look female enough so strangers wouldn’t gawk.

What the Orlando mortgage banker didn’t have to be anxious about was how she would pay for two of her surgeries. Her employer of 10 years, Wells Fargo, included breast augmentation and genital reconstruction as coverable expenses under its employee health plan. Duncan was told the San Francisco-based bank already had had 16 other employees transition to new genders and assigned a benefits specialist to walk her through the process.

“They had a template in place, and it was surprisingly supporting and mentally encouraging,” said Duncan, 55, who four years later still works for Wells Fargo. “So much of what I’d heard involved people who ended up losing their job, losing their family, losing their friends, becoming destitute.”

With little fanfare, more and more large corporations, including Coca-Cola, Campbell Soup and Walt Disney, have expanded their insurance coverage to meet the needs of transgender workers. The trend follows a concerted push by transgender rights advocates to get employers and insurers to see sex reassignment the way the American Medical Association does — as a medically indicated rather than an optional procedure.

“We understand people simply get appendicitis, and it is something our community deals with through insurance,” said Andre Wilson, who counsels companies on transgender issues as a senior consultant with San Francisco-based Jamison Green & Associates. “That’s what we need to understand about transsexualism. Not everybody will be diagnosed with Gender Identity Disorder, and in fact, few people will be. But the people who are diagnosed with it really need treatment.”

Among the corporations providing transgender-inclusive health benefits are some leading Wall Street and Main Street brands.

American Express, Kraft Foods, AT&T, Yahoo!, Eastman Kodak, Sears, Morgan Stanley, Price Waterhouse, General Motors and State Farm are among 85 large businesses and law firms that cover the cost of at least one surgery, according to a 2010 survey by the Human Rights Campaign, the nation’s largest gay rights group.

The number is expected to spike this year, when HRC adds availability of surgery-inclusive medical benefits for transgender employees or transgender dependents to the criteria in its annual corporate diversity report card.

To maintain the coveted 100 percent rating when the next Corporate Equality Index is published in the fall, companies will have to offer at least one insurance plan that covers at least $75,000 worth of surgery and other treatments recommended by a patient’s doctor.

“A lot of people are pretty surprised that alongside the cosmetic and experimental treatments that are excluded from mainstream plans, you can see very broad exclusions related to transgender care,” said Deena Fidas, associate director of HRC’s Workplace Project. “In raising the bar…we are addressing the root cause of the problem.”

Stephanie Battaglino, an assistant vice president at New York Life Insurance, has been working with a senior executive at her company to add transgender health benefits to the employee insurance plan. Battaglino, 52, started her transition five years ago, becoming the first New York Life employee to do so openly. To finance her surgeries, which were on a list of procedures not covered by insurance, she borrowed from her retirement account.

“I’ve often said to friends, ‘My transition at work went really, really smoothly, and if I had to do it again, the only thing I would change would be if I had my surgery covered,”’ she said. “To know it was covered and completely reimbursed would have cast everything in a much different light.”

New York Life has been open to the changes and expects to have the expanded coverage in place soon, Battaglino said. But that doesn’t mean the learning curve has been easy to negotiate.

The company initially was uncomfortable agreeing to $75,000 of allowable coverage, she said. But she said that concern was alleviated when it was explained that only two or three employees would likely need the benefits.

“The big misconception is we are going to go broke and all these transgender people are going to come out of the woodwork asking for gender reassignment surgery,” she said.

Some businesses see covering the cost of transgender surgery as not only an important human resources statement, but good business sense.

“Wells Fargo elected to offer this benefit to be competitive as an employer and also to support our comprehensive corporate commitment to diversity,” company spokesman Mary Eshet said.

Joanne Herman, the author of Transgender Explained For Those Who Are Not, said both corporate America and insurers need to understand that genital surgery is not the be-all and end-all in making a person’s appearance match the way he or she feels inside.

For men becoming women, undergoing facial reconstruction may be even more important because it will affect how they are perceived and treated in public, Herman said. The same is true for female-to-male transsexuals and breast surgery. Yet standard insurance plans typically dismiss both as cosmetic, even though people with untreated Gender Identity Disorder are at high risk of suicide and those who get treatment become better workers.

“If you are transsexual, living as anything other than that is a very bleak experience. It’s amazing how much happier I am, how much more productive, social and involved I am as Joanne,” she said.

—  John Wright

Lambda Legal wins major victory in job discrimination case

Vandy Beth Glenn

Lambda Legal announced a victory this week in an employment discrimination case for Vandy Beth Glenn, an Atlanta transgender woman.

Glenn was fired from her job working as an editor and proofreader for the Georgia General Assembly when she told her supervisor that she was going to transition. The supervisor thought her transition would be inappropriate even though her health care provider had diagnosed her with Gender Identity Disorder.

The court relied on a ruling in a previous Lambda Legal case from Texas. In that decision, a court found in favor of a woman when a job offer was rescinded after the company learned she was transgender.

Although federal employment protections generally don’t include sexual orientation or gender identity, the court found in Glenn’s favor based on sex discrimination.

“The evidence was clear — Vandy Beth was fired because her boss didn’t like who she is, and that kind of treatment is unfair and illegal,” said Lambda Legal transgender rights attorney M. Dru Levasseur.

—  David Taffet