BOSTON (AP) – The new commissioner of the state’s prison system said Tuesday he plans to re-examine the case of a convicted killer suing the Department of Correction to try to get a sex-change operation.

Prison officials have strenuously opposed a request from Michelle Kosilek to have the surgery, saying it could make her a target for sexual assault by other inmates.

But DOC Commissioner Harold Clarke, who took over the department in November, said he has not decided yet whether to continue to fight Kosilek’s request. “I need to take a look at the information presented before I arrived, and with a fresh set of eyes, closely scrutinize it,” Clarke said, following a status hearing in U.S. District Court on Kosilek’s lawsuit.

Robert Kosilek was sentenced to life in prison for murdering his wife, Cheryl, in 1990. Kosilek legally changed her name to Michelle in 1993 and has been living as a woman in an all-male prison in Norfolk.

Kosilek first sued the Department of Correction in 2000, claiming its refusal to pay for a sex-change operation violates her Eighth Amendment right against cruel and unusual punishment.

In 2002, U.S. District Judge Mark Wolf ruled that Kosilek had failed to adequately treat Kosilek’s gender identity disorder, but stopped short of ordering the state to allow the sex-change operation. Wolf found that the DOC had not violated Kosilek’s Eighth Amendment rights because Kosilek did not prove that the correction commissioner had shown “deliberate indifference” to Kosilek’s medical needs.

Kosilek, 58, sued again in 2005, saying the hormone treatments, laser hair removal and psychotherapy she has received since Wolf’s 2002 ruling were not enough to relieve her anxiety and depression.

For the last year, Wolf has been weighing whether to order the DOC to allow the surgery. Several medical experts who testified for Kosilek, as well as several doctors retained by the DOC’s health provider, said they believe the surgery is medically necessary for Kosilek, who has twice tried to commit suicide in prison.

But other experts hired by the DOC said Kosilek does not need the surgery.

Wolf ordered Clarke to attend Tuesday’s hearing after Kosilek’s attorneys said they wanted to hear Clarke’s position on the case. Kosilek’s lawyers noted that Clarke formerly headed the prison system in Washington state, which housed a transsexual murderer from New Hampshire.

Clarke said he was willing to testify in the Kosilek case, but an attorney for the DOC asked for more time so Clarke can review previous testimony in the case. Clarke is scheduled to testify on May 12.

Former DOC Commissioner Kathleen Dennehy, testifying in June 2006, said that if Kosilek is allowed to have a sex-change operation, it would pose “insurmountable” security risks. Dennehy said prison officials believe Kosilek would become a target for sexual assault in either a male or female prison.

Dennehy also said she would resign if she was ordered to allow Kosilek to have the surgery.

Clarke said he doesn’t believe it would come to that.

“I don’t think I’d resign if the court ordered it,” he said after the hearing Tuesday.

“It’s a very serious matter that I think deserves my close attention.”

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Editor’s Note: Denise Lavoie is a Boston-based reporter covering the courts and legal issues. She can be reached at dlavoie(at)ap.org

AP-ES-04-01-08 1550EDT

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