Wis. inmate rejects women's underwear, insists on sex change

MADISON, Wis. - A transgender inmate wants to reject an agreement that would make her the first in Wisconsin given state-issued women's underwear in a male prison and instead continue her lawsuit seeking a taxpayer-funded sex change.

The settlement, obtained by The Associated Press under the open records law, would end years of litigation involving the inmate formerly known as Scott Konitzer, who filed a lawsuit in 2003 challenging Wisconsin's practice of not paying for inmates' sex changes. But Konitzer, an armed robber who now calls uses the name Donna Dawn, is trying to back out alleging coercion was behind the agreement.

Konitzer, 45, has asked a judge to allow the lawsuit to continue. Transgender rights' advocates say Konitzer is trying to be the nation's first transgender inmate to obtain a court-ordered sex change. A Massachusetts inmate also has a case pending.

Wisconsin officials said Wednesday they have already started to implement the settlement and will oppose any attempt to reopen the case.

Ineligible for parole until 2026, Konitzer has received state-funded hormone therapy for years under the prison system's standard practice to treat gender identity disorder.

Konitzer believes she's a woman trapped in a man's body, and the hormones have led to the development of breasts and other feminine traits.

U.S. District Judge Charles Clevert ruled in May that Konitzer's lawsuit could proceed to trial. He wrote that a jury could find prison officials "were deliberately indifferent to Konitzer's serious medical need" when they failed to give Konitzer the real-life experience of living as a woman, the next step of treatment for gender identity disorder.

Prison officials had refused to allow Konitzer to wear female undergarments, saying that would make Konitzer a target for potential sexual assault and other inmates would want to follow suit.

"If you let one inmate wear a bra and panties, they'll all want to wear a bra and panties," a prison security official testified during the case.

Clevert rejected those arguments. He noted medical experts determined Konitzer needed a bra and that a vest provided didn't provide support and was painful.

The judge also struck down as unconstitutional a state law, the only one of its kind in the nation and passed in response to Konitzer's lawsuit, that specified tax dollars could not be used to pay for inmates' sex changes or hormone treatments. Attorney General J.B. Van Hollen has appealed.

After his rulings, Clevert ordered mediation to try to settle Konitzer's claims. Under an agreement reached in September, Konitzer would be allowed to select from prison catalogs the underwear available to Wisconsin's female inmates.

Larry Dupuis, a lawyer for the American Civil Liberties Union of Wisconsin, said the settlement would be "a step forward" for transgender inmates. Prisons elsewhere have shown they can allow transgender inmates to live in their preferred genders without jeopardizing security, he said.

Dupuis said the settlement would not have closed the door on sex-change surgery. The settlement said Konitzer's hormone therapy would continue and prison officials would hire an outside medical specialist to evaluate Konitzer and make treatment recommendations.

But Konitzer asked Clevert last month to throw out the agreement. Konitzer claimed being coerced into accepting the deal because the trial was set for two weeks after mediation, which did not leave Konitzer enough time to find a lawyer if there was no agreement. Konitzer's original legal team withdrew in June.

Wisconsin Department of Justice spokesman Bill Cosh said the state believes the settlement is a "binding contract" and will oppose reopening the case. Corrections spokesman Tim LeMonds said the state is carrying out its obligations.