Chelsea Manning, now in a military jail in Kansas for leaking classified documents, will not receive hormone treatment to continue her gender transition, the Army has announced. If Chelsea Manning sues, and the case is accepted, it could be groundbreaking. Here’s why.
Pte Manning, who is currently serving a 35-year prison, made her transition public at the time of her sentencing in July of last year. She had been diagnosed with gender dysphoria by a number of military doctors throughout her army career. Since her incarceration, Manning has asked that she be allowed access to gender alignment treatment, such as hormone therapy. This month, the US Army answered that request with a flat-out denial: Manning would not be allowed this treatment as the US military, it said, has no obligation to provide optional medical care.
The issue of whether transgender inmates should be given access to hormone therapy has come before the courts on a number of occasions, and in recent years the weight of court opinion appears to have shifted from a refusal to even consider hormone therapy a human right to treat a medically recognized health issue*, to the courts saying that if hormone therapy was started prior to entering the prison service then the prison service must allow the prisoner to continue treatment as to do otherwise violates the prisoner’s Constitutional rights. The issue of trans inmates who were previously diagnosed with gender dysphoria but have not yet started hormone treatment, and whether they should have access, is still a hotly debated one in the courts, but the weight of legal opinion at this time seems to say no.
In various US states, prison services has fought against even continuing hormone therapy for trans inmates, but slowly there is consistency emerging at both the state and federal level that this should be a standard practice. These, however, have been the civilian courts. As we know, the military has different laws.
Currently, the United States military bans all trans personnel. If a military member were to disclose their identity by, say, seeking psychological help to understand and work through their gender dysphoria, they could be discharged from the military. This is because military regulations class trans identity as a “psychosexual disorder” despite the fact that leading healthcare bodies in the United States have, through the DSM, made it abundantly clear that trans identity should no longer be classed as a “disorder” at all, but rather a physical/mental mismatch that can, with the right treatment, be answered and one that does not, of itself, impact a person’s capacities in any other regard.
There are hints that, on this, the military rules may change in the relatively near future though, with mounting pressure for change and the defense secretary Chuck Hagel saying that the ban should be under “continual” review. Speaking to the press earlier this month, he said “I’m open to those assessments, because every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it.”
Yet the military has never faced the kind of lawsuit that Manning appears to be moving toward: a demand that she be given hormone therapy as a basic human right because the military, she will contend, is by its own rules required to offer medical treatment to its soldiers. Indeed, the Veterans Affairs department is estimated to have treated around 2,567 veterans with “transgender-specific care” in 2013. The VA does not provide for gender confirmation surgeries but does help with the costs of things like hormone therapy and basic medical care. Manning cannot access this while in prison, but as soon as her sentence is over, she might be eligible.
Obviously then, this tackles the issue of whether the military can ban trans individuals for no other reason than the US Army having an outdated definition of what being trans means even as it recognizes that there are trans servicemembers to whom the US owes a debt.
Manning’s lawyers contend that, given that the military has been aware of Chelsea Manning’s gender identity for a number of years (it even featured as part of the Wikileaks trial), and that military doctors were the ones to diagnose her, the military cannot deny that the claim is genuine, and therefore the refusal of treatment represents an act of knowingly violating Manning’s rights and, they appear to say, adds up to cruel and unusual punishment.
There is evidence to suggest the military would like to sidestep this issue by transferring Manning to a civilian federal prison. No final official word has been offered in that regard yet as this was floated as a (rather ironic) Pentagon leak, and has been quickly qualified by the Pentagon itself as something that will be carefully considered. If Manning were to be transferred to a federal civilian prison, it would be unusual as, while it is standard practice for many military prisoners, highly sensitive cases like Manning’s are not usually given approval.
Naturally, Manning’s lawyers will oppose the move because they contend that, due to Manning’s high-profiled status, she would in a civilian prison be at particular risk. They have also called it “a trick” due to the timing that seems to coincide with Manning’s appeal for hormone therapy being rejected.
The United States Army cannot have missed the fact that Manning is uniquely placed to pressure the military into changing its policy on how it and the United States as a whole treats trans prisoners. Trans individuals are regularly housed according to their birth assigned sex and not their gender, meaning they must often live in solitary confinement for the duration of their sentence so as to avoid harassment. Despite this, they are also subject to physical and sexual abuse.
Manning’s case could be the high-profiled lawsuit that is needed to at the very least bring the issue of trans prisoners and their treatment to the wider public stage. There is a fear that her notoriety may taint that battle, though, since whether she is perceived as a hero or villain, Manning undeniably has a certain celebrity now that could cloud the case.
Still, advocates for change hope that any suit Manning does bring will generate action to help provide a basis to change both how the military treats trans personnel and how the prison service dehumanizes trans prisoners by denying them their basic medical needs.
*There is a danger of pathologizing trans identity, and that should be guarded against. However, as Manning’s lawyers and Manning herself is using the angle of her hormone therapy being a medical necessity, as it is for many but not all trans people, this article refers to gender dysphoria and trans identity in conjunction, even though we are aware that they do not necessarily go hand in hand.
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