Friday, August 23, 2013

From Bradley to Chelsea: Gender Reassignment in Military Prison

On Wednesday, August 21, 2013, a military judge sentenced Army Private Bradley Manning—now “Chelsea” Manning—to 35 years in prison for sending hundreds of thousands of classified documents to WikiLeaks. The judge found Manning guilty of 20 charges, most of which related to espionage, theft, and fraud, but acquitted her of the most serious charge: aiding the enemy. But the conviction and sentence are old news—it’s Manning’s gender that’s grabbed all the attention.

No Treatment for Transgender People
After her sentence, Manning put speculation to rest by proclaiming that she identifies as a woman and wants to begin hormone therapy as soon as possible. Fort Leavenworth Army Prison, where Manning will serve her term, shot back with the announcement that the Army “does not provide hormone therapy or sex-reassignment surgery for gender identity disorder.” The vowed refusal apparently stems from broader military policy: The Army doesn’t allow transgender people to serve their country, considering them unfit.”  (The 2011 repeal of Don’t Ask, Don’t Tell, a policy barring openly gay people from military service, didn’t affect the transgender policy.)

The Army doesn’t provide hormone therapy or gender reassignment to its active personnel, so it shouldn’t be a surprise that it won’t willingly offer either to a prisoner. But it might not have a choice: Many non-military penal institutions currently have to provide gender-change treatment to their prisoners. For example, in 2011, with a push from the courts, the Federal Bureau of Prisons changed its policy, allowing transgender prisoners to receive medical treatment for gender identity disorder.

Gender Dysphoria
Gender dysphoria applies to individuals “whose gender at birth is contrary to the one they identify with.” It’s a diagnosis often treated in part by hormone therapy. Mental health experts warn that people who can’t access the gender reassignment they seek are at significant risk for depression and suicide. Courts are beginning to recognize the severity of diagnosed but untreated gender dysphoria, even invoking the Eighth Amendment’s cruel and unusual punishment clause.

Cruel and Unusual?
A prisoner who can prove “deliberate indifference to serious medical needs”—physical or mental—has a viable Eighth Amendment claim. So observed a federal district judge in 2012 when issuing an injunction that required the Massachusetts Department of Corrections (DOC) to provide male-to-female sex reassignment surgery to a prisoner. (Kosilek v. Spencer, 889 F.Supp.2d 190 (D. Mass. 2012).) The judge noted that inhumane conditions of confinement, including grossly inadequate medical care, constitute “cruel and unusual” punishment. The operative question in this regard is whether the inmate faces a “substantial risk of serious harm.”

In the federal lawsuit, physicians had diagnosed the prisoner in question with severe gender identity disorder; the DOC’s medical services contractor reported several times that failure to provide the requested surgery presented significant risks of suicide and self injury. Accordingly, the judge found a substantial risk of serious harm.

The judge then turned to treatment, which under the Eighth Amendment requires addressing the cause of the medical condition, rather than merely making a condition less painful. The judge cited legal precedent holding that the cost of appropriate medical care is essentially irrelevant to the determination of whether failing to provide that care is cruel and unusual. As a result, he concluded that the DOC had to provide the requested surgery.

Really Necessary?
Whether you accept the concept of failure to provide gender reassignment as cruel and unusual punishment depends on your level of skepticism. Many people, entirely unfamiliar with what gender dysphoria must feel like, have trouble getting behind the idea. They don’t want their taxpayer money spent on some kind of elective procedure. Others are quick to point out that hormone therapy and sex-reassignment surgery aren’t the kind of medical treatment that people seek on a whim.

One might contend that Private Manning should have sought the treatment before imprisonment, before the government would have to pay for it. That might be a viable argument—perhaps depending in part on the extent to which Manning’s dysphoria has evolved since her 2010 arrest. (She has reportedly had feelings of female self-identification since childhood. A military psychologist diagnosed her with gender dysphoria shortly before her arrest. And some, including her lawyers, have suggested that this dysphoria contributed to her illegal actions in the first place.)

Whatever the courts decide, medical professionals have already come to their conclusion. They give gender dysphoria enough credence to place it in the DSM-5 (which certainly isn’t free of critics). They’ve found that this condition, untreated, leads directly to anguish. To most of them, presumably, lack of treatment would be cruel.

For more on this topic, see Private Manning, Gender Reassignment, and Cruel and Unusual Punishment.