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Federal appeals court reinstates prisoner's sex-change lawsuit

NEW YORK (Reuters) - A federal appeals court on Monday reinstated a lawsuit brought by a transgendered prisoner against Virginia authorities for refusing to allow her to undergo a sex-change operation.

The 4th U.S. Circuit Court of Appeals found that Ophelia Azriel De'lonta, born Michael Stokes, can argue that denying her the surgery violates the Eighth Amendment's prohibition against cruel and unusual punishment.

The ruling comes six months after a federal judge in Boston ordered Massachusetts to pay for a sex-change operation for a convicted murderer who, like De'lonta, suffers from gender identity disorder.

The disease is "characterized by a feeling of being trapped in a body of the wrong gender," Judge Albert Diaz wrote for a unanimous three-judge panel.

While such cases can sometimes be treated with hormone therapy and living as a member of the opposite sex, the most serious cases require sex reassignment surgery, the court said, citing the World Professional Association for Transgender Health.

"In these cases, the surgery is not considered experimental or cosmetic; is it an accepted, medically indicated treatment," Diaz wrote.

In reversing a lower court's decision to dismiss the case for failing to state a cause of action, the 4th Circuit did not order that De'lonta receive the surgery. Instead, it simply found that her lawsuit was viable under the Eighth Amendment and sent the case back down to the district court for further proceedings.

"We do not decide today the merits of De'lonta's claim," Diaz wrote.

The Virginia attorney general's office, which defended against the lawsuit, could not be reached for comment on Monday.

The case represents the second time De'lonta, serving 73 years for bank robbery, has sued the state over her treatment. In 1999, she filed a lawsuit claiming the prison had failed to provide her treatment for her disorder in violation of the Eighth Amendment.

A federal judge tossed out the lawsuit, but the 4th Circuit revived it in 2003. De'lonta and state authorities then reached a settlement that would give her hormone therapy and psychological treatment.

But De'lonta's latest lawsuit claims she still suffers from the uncontrollable urge to castrate herself despite the treatments and needs the surgery to prevent serious self-mutilation.

The case is De'lonta v. Johnson et al., U.S. Circuit Court of Appeals for the Fourth Circuit, No. 11-7482.

(Reporting by Joseph Ax; Editing by Mohammad Zargham)

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