In a 2-1 decision, the judges upheld a district court order that the state Department of Corrections must provide the surgery for Michelle Kosilek. Judge O. Rogeriee Thompson, writing for the majority, said the trial judge heard lengthy testimony and made a decision based on the evidence.
"Those findings -- that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations -- mean that the DOC has violated Kosilek's Eighth Amendment rights," she said.
Judge Juan Torruella, who dissented, said the district judge did not give adequate consideration to the problems of housing Kosilek after the gender change. He also suggested the surgery is beyond the bounds of the Eighth Amendment, which bans excessive fines and cruel and unusual punishment.
Kosilek, born Robert Kosilek, was convicted in 1993 of strangling his wife three years earlier.
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