Prison Policy

How the Policy Might Be Changed

The military’s stand on transgender inmates has never been tested. But there’s a case to be made that it should be.

If Chelsea Manning’s request to be treated as a woman at Ft. Leavenworth seems like a longshot, that’s because it is — for now.

The prison’s spokeswoman quickly released a statement to NBC News making it clear that Leavenworth does not provide hormone therapy for transgendered inmates like Manning, formerly known as Bradley Manning, who was sentenced on Wednesday to 35 years in prison for leaking government documents. “The Army does not provide hormone therapy or sex-reassignment surgery for gender identity disorder,” prison spokeswoman Kimberly Lewis told NBC, although she did volunteer that psychological counseling might be available.

That’s policy. Cased closed.

But here’s the thing about that policy, say legal experts and transgender advocates: it’s never been tested. Manning’s is the first-known case of a transgender inmate in a military facility asking to receive such treatment. While the Army has a policy in place, no one has ever asked that it be reconsidered, or taken the obvious next step: file a lawsuit. This discussion hasn’t happened yet.

Now, it surely will. After Manning went public, LGBT advocates across the country immediately lined up alongside organizations like the ACLU to declare that Manning has a constitutional right to adequate medical treatment while in person, a right affirmed in civilian institutions in several recent court cases. Just because the law hasn’t been tested in the military arena doesn’t mean it’s invalid, experts tell The Daily Beast.

“The Constitution protects transgender people in the prison system,” says Dru Levasseur, transgender rights project director at Lambda Legal, which advocates for LGBT and HIV-infected individuals.

What should happen now, says Masen Davis, executive director of the Transgender Law Center, is a thorough evaluation of Manning’s health. Some transgender people are treated with psychology. Others require hormone therapy, or surgery. That should be a decision made by Manning and a doctor, not the prison flak.

“They already made a medical determination without even evaluating her,” Levassuer told The Daily Beast. “How do they know she’s only going to need psychological counseling?”

If the agreed-upon best course of treatment is hormones or surgery, then Manning’s doctor and her lawyer and transgender advocates across America are sure to lay pressure on the military to change that policy, in much the same way the Bureau of Prisons was forced to do after a 2011 ruling by the Seventh Circuit that struck down a 2005 Wisconsin state law banning hormone therapy and gender surgery for transgender inmates. The same year, the First Circuit in Boston upheld an earlier ruling that the Massachusetts Dept. of Correction had violated the constitution by repeatedly denying a transgender inmate’s request for female-hormone treatments. And last year, a district judge in Massachusetts ruled that the state violated Michelle Kosilek’s constitutional rights by denying her request for a sex reassignment surgery, ordering the Department of Corrections to provide it. The state is appealing.

Now, all federal prisons, halfway houses and prisons that contract with the U.S. Bureau of Prisons have been required to provide transgender inmates an evaluation and treatment plan for those who identify as transgender, including those who come forward after being incarcerated. Jennifer Levi, director of the Transgender Rights Project at the nonprofit Gay & Lesbian Advocates & Defenders organization, said she hopes the government will examine the issue, consider the recent case law and do the right thing.

“Every court to address this question has said the Eighth Amendment requires that people receive adequate medical care in prison,” Levi says. “I hope Lewis’s statement is kind of a kneejerk reaction” that will be reevaluated.

If not, expect a court battle. Manning’s attorney has already intimated he’ll sue on behalf of his client to get the proper treatment, and legal experts say there’s nothing about a military prison that would exempt it from the same constitutional requirements to which civilian prisons are held. The constitution is the constitution, they say. And the Eighth Amendment bans cruel and unusual punishment, “including deliberate indifference to a prisoner’s medical needs.”

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LGBT advocates even contend that Manning could wind up in a women’s facility. The military’s current policy is that prison inmates be assigned based on whatever gender they were at birth, much like most civilian prisons. But there is another, more recent law that could force that policy to be overturned too, said Levasseur: the Prison Rape Elimination Act.

That Act, passed in 2012, led to regulations from the federal Department of Justice to determine housing for transgender inmates on a case-by-case basis, “taking into account factors like personal preference and safety needs,” according to the ACLU, not solely based on their genitals. The act bans “protective custody” for transgender inmates, along with segregated LGBT housing units, and it requires staff to be trained on how to communicate with and treat transgender inmates, even including the ban of “genital searches of transgender inmates just to determine their gender.” Those rules, as of June, apply to all correctional facilities that require federal funding.

Manning’s notoriety and her public revelation about being transgender already put her at serious risk of harassment and/or rape at Leavenworth. No giant leap from there, then to argue that Manning would be best protected by the prison rape act by doing time in a women’s facility, Levasseur said.

LGBT advocates say while Manning’s case may be fairly unique, it’s a critical place to clarify transgender people’s constitutional rights. And they promise to fight for that. “I think this is the last frontier,” Levasseur said. “The Citadel will fall.”