Chelsea Manning's win not necessarily a big win for trans rights

AP

With roughly 72 hours left of his term, President Barack Obama announced on Tuesday he would commute Chelsea Manning's prison sentence, ensuring her release from prison on May 17 of this year.

Manning has already served nearly seven years of a 35-year sentence for leaking classified government documents to WikiLeaks in 2010. Her lawyers later called it the "most severe punishment received by any other whistleblower in American history." 

Her sentence was made all the harsher given that Manning, who announced after the sentencing that she is a transgender woman named Chelsea, would be serving her time in a men's military prison.

Her time there has been defined by a constant struggle to be herself: to wear her hair long, to receive hormone therapy and to undergo the gender affirming surgery she said was vital to her mental and physical well-being. 

Manning attempted suicide in July, after which time she was threatened with indefinite solitary confinement. Two months later, she went on a five-day hunger strike to protest prison conditions. Though the government had allowed her to legally change her name and obtain hormone therapy, Manning still had to cut her hair to comply with male military standards. 

Tuesday's commutation marks the end of a long, relentless fight for Manning. And, to be sure, Obama's action is a big win for Manning and her supporters, many of whom advocate for the thousands of trans inmates who will remain behind bars long after Manning walks free.

A demonstrator holds up a "Free Chelsea" sign at San Francisco's 2016 gay pride parade.Source: Josh Edelson/Getty Images
A demonstrator holds up a "Free Chelsea" sign at San Francisco's 2016 gay pride parade.  Josh Edelson/Getty Images

But it isn't immediately clear that Manning's victory is one that will turn the tides of change. In fact, trans prisoners may not feel the effects of what seemed on the surface like such a hugely important event at all.

"Highlighting the issue of what trans people face in prison is a good thing," Flor Bermudez, Detention Project director at the Transgender Law Center, said. "Freeing a trans person in prison is a good thing. Will it lead to other people being free? I don't think so."

Bermudez isn't being pessimistic — Obama's granting clemency, however well meaning, does little to forge a path for trans rights beyond emphasizing the urgency of the matter. Presidential pardons or commutations, after all, are not policy changes or court decisions. They accomplish nothing in the way of establishing legal precedent and are often viewed as being above the law altogether. 

Justin Mazzola, a researcher at Amnesty International, agreed. Obama had highlighted an issue, raised it to the highest level of public recognition even, but he offered no concrete change for trans prisoners whose names aren't Chelsea Manning.

"We saw all the obstacles preventing Manning from even just presenting as female and to get the treatment she needed and deserved," Mazzola said Tuesday. "But I don't know if her release her commutation would have any real impact."

Trans people in the criminal justice system can expect to face unequal treatment from the moment of their arrest, Mazzola explained. If authorities need to strip search a suspect who is trans, they often won't make any consideration to the gender of the officer conducting the search, and whether it conflicts with the suspect's gender identity. If convicted, a trans prisoner may, like Manning, be ordered to serve out a sentence in a facility at odds with their gender. 

Obama had highlighted an issue, raised it to the highest level of public recognition even, but he offered no concrete change for trans prisoners whose names aren't Chelsea Manning.

And that marks the peak of a slippery slope. "The entire penal and corrections systems are gendered, and if trans people are not placed according to gender identity they will, by default, not be respected by their gender identity," Bermudez said. "Everything else follows from that."

Trans people who are incarcerated in a wrong-gender prison may find that officers don't acknowledge their chosen names or pronouns; they can face threats of solitary confinement and disproportionate sexual abuse from other inmates as well as prison officers. 

In March, the Department of Justice released new guidelines for corrections facilities incarcerating trans inmates, prohibiting officers from assigning them to cells based on their genitalia. These guidelines aligned with federal regulations established in 2012, similarly requiring prisons to acknowledge inmates' gender identities; at the time, however, many agencies continued to abide by policies that only recognized gender assigned at birth.

Progress in these areas moves along in fits and starts. It requires trans inmates to endure years of suffering and mistreatment, and to have access to crackerjack legal teams who can help fight for them, fight with them.

This is where Bermudez believes Manning's case on its own could incite broader change for trans inmates. She hopes the victory inspires attorneys across the United States to offer their services pro bono to trans people in legal trouble.

Bermudez is trying to get ahead of the curve, launching a new program called the Trans Immigration Defense Effort, which is currently recruiting pro bono lawyers to help trans and gender nonconforming immigrants.

"Manning had a great team of lawyers, but there are thousands of trans people in prison who have no lawyers to challenge their condition," Bermudez said. 

"Chelsea's story is not unique," she continued. "There are thousands of trans people in prison whose constitutional rights are being violated every day."