The convicted soldier's quest for gender reassignment treatment may invoke the cruel and unusual punishment clause.
by: Micah Schwartzbach, Attorney
The phrase “cruel and unusual punishment” often relates to sentences for criminal defendants. But it can also apply to conditions those defendants face once they are imprisoned. Lack of food, physical abuse, and sleep deprivation are examples. But there’s an altogether new form of cruel and unusual punishment that courts have begun to recognize: failure to provide gender reassignment treatment to transgender inmates.
The Case of Private Manning
In July of 2013, a military judge convicted then Private Bradley Manning of 20 charges relating to his releasing hundreds of thousands of classified documents to WikiLeaks. Most of the convictions related to espionage, theft, and fraud. The judge acquitted Manning of the most serious charge of aiding the enemy. In August of the same year, the judge sentenced Manning to 35 years in prison. But it’s what came after the sentence that really stirred debate.
Shortly after the sentence, Manning announced that she would go by the name Chelsea and hoped to begin hormone therapy as soon as possible. The prison set to hold Manning quickly responded, pointing to military policy against “hormone therapy or sex-reassignment surgery for gender identity disorder.” The prison might not have a say in the matter, though, since the Eighth Amendment to the U.S. Constitution might require treatment.
Cruel and Unusual Punishment
The Eighth Amendment prohibits “cruel and unusual punishments.” In a 2012 federal case, Kosilek v. Spencer, a federal judge ruled that the Amendment mandated that the Massachusetts Department of Corrections (DOC) provide male-to-female sex reassignment to a prisoner. (889 F.Supp.2d 190 (D. Mass. 2012).) Medical professionals had diagnosed the prisoner with severe gender identity disorder and warned that suicide and self harm might result from non-treatment.
Prisoners have rights to basic life necessities, such as food, shelter, clothing, and medical care. So, prison officials showing “deliberate indifference to serious medical needs” violates the cruel and unusual punishment clause. Prisoners who can show a “substantial risk of serious harm” from lack of medical care—regardless of the care’s cost—will prevail on a cruel and unusual punishment claim. And the clause requires that prison officials treat the root of any medical problem, rather than treat it only to make it less painful. With these tenets, the judge in Kosilek held that the DOC had to provide sex reassignment to the prisoner in question.
Hope for Manning?
It’s difficult to say what will happen in Chelsea Manning’s case. First, medical professionals must confirm that treatment is medically indicated. Second, Manning must establish that she will suffer without it. And third, a court must apply the cruel and unusual punishment clause in the way that the Kosilek judge did.
If a court interprets the Eighth Amendment and gender reassignment this way, some military prisons will have to change policy. That is, unless that court is overruled. In short, a protracted legal battle may be in store.
For more on Chelsea Manning and gender reassignment, see From Bradley to Chelsea: Gender Reassignment in Military Prison.