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
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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.

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