The Case for Manning’s Gender Reassignment in Prison

Two ongoing legal proceedings may pave the way for her treatment.

Army Pfc. Bradley Manning is escorted into a courthouse in Fort Meade, Md., before a hearing in his court martial.
National Journal
Brian Resnick
See more stories about...
Brian Resnick
Aug. 22, 2013, 9:35 a.m.

As of Thursday morn­ing, the per­son be­hind the largest leak of gov­ern­ment secrets of all time wants to be known as Chelsea Man­ning.

“I am Chelsea Man­ning,” she wrote to the Today show, shed­ding the name Brad­ley. “I am a fe­male. Giv­en the way that I feel, and have felt since child­hood, I want to be­gin hor­mone ther­apy as soon as pos­sible.” She re­quests to be called such in all ref­er­ences, save for of­fi­cial pris­on cor­res­pond­ences.

This an­nounce­ment is per­haps a long time com­ing for Man­ning. Be­fore the ar­rest, be­fore the tri­als, be­fore Wed­nes­day’s sen­ten­cing to 35 years in jail, Man­ning was a young Army private strug­gling with gender-iden­tity is­sues. As early as 2009, Man­ning reached out to an on­line coun­selor; Wired pub­lished the res­ult­ing tran­scripts from those chats in 2011. “Bra­dass87” is Man­ning.

 

Man­ning’s in­tern­al con­flicts, the de­fense law­yers ar­gued dur­ing the tri­al, factored in her de­cision to leak the more than 250,000 dip­lo­mat­ic cables and oth­er mil­it­ary files. Per­haps those pleas par­tially ex­plain why she only re­ceived a 35-year sen­tence. Pro­sec­utors were gun­ning for 60.

But due to cur­rent pro­ced­ures at Fort Leaven­worth, the Kan­sas fa­cil­ity where she will be serving her sen­tence, the com­plete gender trans­ition she is hop­ing for isn’t likely to hap­pen (at least without a leg­al in­ter­ven­tion). In an in­ter­view with the Court House News Ser­vice, a Leaven­worth spokes­per­son said, “The Army does not provide hor­mone ther­apy or sex-re­as­sign­ment sur­gery for gender-iden­tity dis­order.” Man­ning will, however, have ac­cess to oth­er forms of psy­chi­at­ric care.

“I’m hop­ing Fort Leaven­worth will do the right thing and provide that [treat­ment],” Man­ning’s law­yer told the Today show. “If Fort Leaven­worth does not, then I’m go­ing to do everything in my power to make sure they are forced to do so.”

And he may have the grounds to es­tab­lish one. Right now, two on­go­ing leg­al pro­ceed­ings about trans­gender treat­ment in pris­ons may pave the way.

**

Ophelia Azri­el De’lonta was born Mi­chael A. Stokes, and she has been in a Vir­gin­ia pris­on for 30 years. Per a 2004 leg­al vic­tory, she is al­lowed to dress in wo­men’s clothes and has re­cieved hor­mon­al-treat­ment ther­apy. But still, ac­cord­ing to court doc­u­ments, these in­ter­ven­tions haven’t quelled her de­sire for a com­plete sex change. She has at­temp­ted self-cas­tra­tion sev­er­al times.

“De’lonta’s com­plaint al­leges that, in light of their know­ledge of her on­go­ing risk of self-mu­til­a­tion, ap­pellees’ con­tin­ued deni­al of con­sid­er­a­tion for sex-re­as­sign­ment sur­gery con­sti­tutes de­lib­er­ate in­dif­fer­ence to her ser­i­ous med­ic­al need in vi­ol­a­tion of the Eighth Amend­ment,” the Fourth Cir­cuit Court of Ap­peals wrote in Janu­ary. The Eighth Amend­ment for­bids “cruel and un­usu­al pun­ish­ment.”

The World Pro­fes­sion­al As­so­ci­ation for Trans­gender Health sets the stand­ards for care for a per­son who is trans­gender. And it states that care cul­min­ates in sex-re­as­sign­ment sur­gery. After all, the judges reasoned, it would be cruel to deny sur­gery to a per­son who needed it for, say, a broken bone. If gender-iden­tity dis­order is in­deed a med­ic­al con­di­tion, it needs to fol­low the same guidelines. The judges wrote:

By ana­logy, ima­gine that pris­on of­fi­cials pre­scribe a paink­iller to an in­mate who has suffered a ser­i­ous in­jury from a fall, but that the in­mate’s symp­toms, des­pite the med­ic­a­tion, per­sist to the point that he now, by all ob­ject­ive meas­ure, re­quires eval­u­ation for sur­gery. Would pris­on of­fi­cials then be free to deny him con­sid­er­a­tion for sur­gery, im­mun­ized from con­sti­tu­tion­al suit by the fact they were giv­ing him a paink­iller? We think not.

While the judges did not or­der that Vir­gin­ia provide a sur­gery, they did say De’lonta had a val­id Eighth Amend­ment claim (which a lower court had thrown out).

And a second case, out of Bo­ston, might set the pre­ced­ent for trans­genders be­ing eli­gible for sur­gery while in pris­on (though Man­ning’s only cur­rent re­quest is the hor­mone treat­ment). In 1990, when Michelle L. Kosilek was still known as Robert, she murdered her wife. She’s now serving a life sen­tence. Over the past few dec­ades, her leg­al pro­ceed­ings have fol­lowed a sim­il­ar path as De’lonta’s. First in 2003, she suc­cess­fully sued to re­ceive hor­mone treat­ment. And in Septem­ber 2012, again cit­ing the Eighth Amend­ment, she won the right to a state-fun­ded sex change. The court ruled:

The Eighth Amend­ment does not per­mit the un­ne­ces­sary in­flic­tion of pain on a pris­on­er, either in­ten­tion­ally or be­cause of the de­lib­er­ate in­dif­fer­ence of the re­spons­ible pris­on of­fi­cial. Any such in­flic­tion of pain is deemed “wan­ton.” The wan­ton in­flic­tion of pain on an in­mate vi­ol­ates the Eighth Amend­ment. Pris­on­ers have long been held to have a right to hu­mane treat­ment, in­clud­ing a right to ad­equate care for their ser­i­ous med­ic­al needs.

The state quickly ap­pealed the rul­ing, and the case re­mains un­re­solved. It proved to be a tricky point for many, even Sen. Eliza­beth War­ren, D-Mass., a lib­er­al who sup­ports many gay-rights ini­ti­at­ives. “I have to say,” she said, “I don’t think that’s a good use of tax­pay­er dol­lars.”

If the ap­peal rules in Kosilek’s fa­vor, the Court’s de­cision can serve as an out­line for Man­ning’s law­yers. The judge spells out the five re­quire­ments for a tran­sexu­al to present to suc­cess­fully ar­gue for a sur­gery:

There­fore, in this case to ob­tain an or­der dir­ect­ing the DOC to provide sex-re­as­sign­ment sur­gery, Kosilek has been re­quired to prove that: (1) he has a ser­i­ous med­ic­al need; (2) sex re­as­sign­ment sur­gery is the only ad­equate treat­ment for it; (3) the de­fend­ant knows that Kosilek is at high risk of ser­i­ous harm if he does not re­ceive sex-re­as­sign­ment sur­gery; (4) the de­fend­ant has not denied that treat­ment be­cause of good faith, reas­on­able se­cur­ity con­cerns, or for any oth­er le­git­im­ate pen­o­lo­gic­al pur­pose; and (5) the de­fend­ant’s un­con­sti­tu­tion­al con­duct will con­tin­ue in the fu­ture.

And be as­sured: Man­ning will con­tin­ue to make head­lines, as her story high­lights not only the prob­lems trans­gender people face in the pen­al sys­tem, but also on the mil­it­ary’s stance on these is­sues. Since trans­gender is con­sidered by the mil­it­ary to be a “psycho­sexu­al dis­order,” it was ef­fect­ively left out of the “don’t ask, don’t tell” re­peal in 2012. And if it’s true that her struggles factored in­to her de­cision to leak the in­form­a­tion, maybe the mil­it­ary will take a keen­er look at trans­gender is­sues over­all.

{{ BIZOBJ (video: 4396) }}

What We're Following See More »
UTAH REPUBLICAN
Former Sen. Bob Bennett Dies at 82
6 hours ago
THE DETAILS

Former Utah Republican Sen. Bob Bennett died of pancreatic cancer on Wednesday after a long battle with pancreatic cancer. Bennett was defeated in a primary in 2010 by Tea Party–backed Mike Lee.

Source:
GOOGLE SEARCHES SPIKE
Libertarians Getting a Second Look?
12 hours ago
WHY WE CARE
VEEPSTAKES
Trump Floats Gingrich, Kasich as Running Mates
13 hours ago
THE LATEST

Newt Gringrich is actively positioning himself as a possible VP nominee for Donald Trump, according to National Review. After a New York Times piece mentioned him as a possible running mate, he said, "It is an honor to be mentioned. We need a new Contract with America to outline a 100-day plan to take back Washington from the lobbyists, bureaucrats, unions, and leftists. After helping in 1980 with Reagan and 1995 as speaker I know we have to move boldly and decisively before the election results wear off and the establishment starts fighting us. That is my focus." Meanwhile, Trump told CNN he'd be "interested in vetting" John Kasich as well.

NO MORE CUTS
House Dems Push on Puerto Rico, Citing Zika
14 hours ago
THE LATEST

"House Democrats are stepping up pressure on Republicans to advance legislation addressing Puerto Rico’s worsening debt crisis by issuing a report arguing that austerity cuts can’t be sustained and have made the island more vulnerable to the mosquito-borne Zika virus." Democrats on the House Natural Resources Committee released a report yesterday that argued "further sharp reductions in government spending can’t be a part of a legislative solution"—especially with a rainy season boosting the mosquito population and stressing an island health system already struggling to deal with the Zika virus.

Source:
WILL ANNOUNCE PICK BEFORE CONVENTION
Trump to Name VP Search Committee
15 hours ago
THE LATEST

"Donald J. Trump said on Wednesday that he expected to reveal his vice presidential pick sometime in July—before the Republican National Convention in Cleveland—but added that he would soon announce a committee to handle the selection process, which would include Dr. Ben Carson." He said he's inclined to name a traditional political figure, unlike himself.

Source:
×