Private Chelsea Manning, more famously known by her birth name as Private Bradley Manning, is having a rough week. On August 21 a military judge sentenced Manning to 35 years in prison for sending over 700,000 war log documents to Wikileaks, the vast majority of which were irrelevant to the war crimes and cover ups that she sought to expose.
During the court proceedings, Manning's trial outed her as transgender. Because the trial was such a public ordeal, Manning's gender identity has become closely scrutinized by the media. This prompted her to release a statement on August 22: "I am Chelsea Manning. I am female. Given the way that I feel, and have felt since childhood, I want to begin hormone therapy as soon as possible. I hope that you will support me in this transition."
Predictably, the military, which does not even provide hormone therapy or gender reassignment surgery to its actively serving personnel, is refusing to supply Manning with a vital mental health treatment. Manning's unprecedented request in the military prison system faces an uphill battle as transgender inmates in the non-military prison complex have faced mixed results in receiving hormone therapy and surgery. The typically conservative military will likely be no more accommodating. Nonetheless, hormone therapy for transgender inmates is a health care necessity and failing to provide that treatment amounts to unconstitutional neglect of the inmate's well being under the Eighth Amendment's "cruel and unusual punishment" clause.
As with other minorities, transgender people face disproportionately high incarceration rates within the criminal justice system. According to the 2011 National Transgender Discrimination Survey, 16% of 6,500 respondents declared that they had been incarcerated. This rate is far higher than the 2.7% incarceration rate for the general American public.
Transgender rights advocates typically litigate the right to hormone therapy and gender reassignment surgery for transgender prisoners under the Eight Amendment. The courts define "deliberate indifference" on the part of prison officials as a violation of the amendment's prohibition on "cruel and unusual punishment." Thus, transgender rights advocates argue that neglecting to provide necessary medical treatment to inmates is a clear instance of deliberate indifference and therefore unconstitutional.
Psychiatrist Dr. Jack Drescher, who specializes in sexual and gender identity disorders, warns that some people go as far as to attempt suicide if denied access to transition to the gender they actually identify as. The medical community classifies this as gender dysphoria, a diagnosis which generally allows the patient to receive access to therapy and medical treatment.
Although classifying a discrepancy between one's sex and gender as a "disorder" is regressive, bringing to mind the days when homosexuality was classified as a mental disorder, it allows transgender individuals to access psychological and physical treatment. Because insurance companies cover transgender medical operations, the fact that the prison system does not cover these medical necessities, despite its constitutional obligation to do so, is a glaring double standard and a blatant example of systematic transphobia.
Michelle Kosilek, a transgender woman in Boston, attempted to castrate and kill herself while held in an all-male facility and denied access to gender reassignment surgery. In 2012 a federal judge finally acknowledged that the prison system was violating Kosilek's constitutional rights, forcing the Masachussetts Department of Corrections to provide her with gender reassignment surgery.
Kosilek is in prison for murdering her wife. Manning is in prison for unveiling an extraordinary amount of military documents, some of which contained evidence of war crimes, military corruption, and cover ups. If the federal government provides gender reassignment surgery for the mental and physical health of a convicted murderer, it logically follows that Manning deserves hormone therapy and adequate health care as a ward of the federal government.
In North Carolina, another transgender inmate, Vanessa Adams, filed a lawsuit against the state for denying her transitional treatment. Adams settled the lawsuit outside of court, successfully ensuring that all transgender inmates in the state receive hormone therapy.
In May 2011 the Bureau of Prisons sent a memorandum to its wardens instructing them to individually assess and evaluate all inmates desiring hormone replacement therapy without regard to their treatment, or lack thereof, before their imprisonment. Nonetheless, this memo has little legal power and despite these very recent advances, not all states provide transgender prisoners with their constitutionally mandated health care. Wisconsin, for instance, has a law on the books that explicitly bans the use of government funds to provide hormone therapy or sex reassignment surgery for inmates, outright ignoring the impact on prisoner health.
Military prisoners are still protected by the constitution and thus still have the same rights to health care as non-military prisoners. Furthermore, transgender prisoners should have the same rights to decent health care as their cisgender counterparts. Chelsea Manning is no exception and refusing to provide her with hormone therapy undermines her protection from cruel and unusual punishment.
Many people will justifiably point to transgender people outside of the prison system. Law-abiding transgender individuals usually have to pay premiums out of pocket, via their own insurance policies, for hormone replacement therapy and prohibitively expensive gender reassignment surgery. Rather than arguing against adequate health care for prisoners, the American public would be better served by advocating for affordable health care for all.
Despite the U.S. prison-industrial complex's many horrid realities, few will argue that the state should not be involved in the incarceration of criminals. If a society accepts the necessity of a criminal justice system, then it must also accept that the tax payers must necessarily foot the bill for basic necessities such as food and healthcare.