The day after after being sentenced to 35 years in prison for leaking classified government materials, Bradley Manning declared that she identified as female and preferred to be known as Chelsea Manning. Having struggled with her gender identity for years while serving in the Army, Manning’s gender identity disorder (GID) played a key role in her trial and sentencing. The question remains whether she will receive the hormone replacement therapy she has requested to receive while in prison at Fort Leavenworth. Although the prison has reportedly issued a statement that it does not provide hormone therapy or gender reassignment surgery, recent case law suggests that it may be constitutionally required to do so.
In this column I will consider whether Fort Leavenworth must provide Manning with the requested hormone therapy. I will discuss several federal courts’ decisions on the issue, all of which suggest an affirmative answer to this question. Although Fort Leavenworth is not bound by these courts’ rulings, I argue that both as a matter of policy and as a matter of constitutional law, the prison must provide Manning’s requested treatment.
Federal Courts Have Required Civilian Prisons to Provide Treatment for Inmates With Gender Dysphoria
In De’lonta v. Angelone, decided in 2003, the U.S. Court of Appeals for the Fourth Circuit held that a prison’s denial to even consider providing gender reassignment surgery for a transgender inmate requesting surgery may violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Although the court did not order the prison to provide the requested medical treatment, it recognized that withholding surgery for transgender inmates could constitute refusal to treat a serious medical condition, which courts have unequivocally held is unconstitutional.
Similarly, in 2011, the U.S. Court of Appeals for the Seventh Circuit struck down a Wisconsin law that barred access to hormone therapy or sex reassignment surgery for prison inmates. The court in that case, Fields v. Smith, held that the prohibition violated inmates’ Eighth Amendment right against cruel and unusual punishment. The court’s forceful opinion stated that “refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.” Although the appeals court ruled only on the plaintiff’s Eighth Amendment claim, the district court’s ruling striking down the law also stated that the ban violated the plaintiffs’ constitutional right to equal protection. The U.S. Supreme Court declined to review the Seventh Circuit’s decision in that case.
Finally, in 2012, a federal judge in Boston ruled in Kosilek v. Spencer that a prison must provide gender reassignment surgery for an inmate for whom it was deemed medically necessary. The judge in that case stated that prison officials cannot arbitrarily limit the treatment for transgender prisoners just as they cannot for inmates with cancer.
Although these decisions are not binding on Fort Leavenworth, a military prison, the reasoning undergirding them cannot be ignored.
Gender Dysphoria Is a Serious Medical Condition Requiring Treatment
It is generally accepted that treatment of what the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) terms “gender dysphoria” can include any combination of psychotherapy, hormone replacement therapy, and sex reassignment surgery. Studies have found that use of only one of these treatment courses in isolation can be ineffective. Thus, for a prison to refuse to provide the medically appropriate treatment is tantamount to torture, as the Seventh Circuit recognized, but I argue that this is the case regardless of who operates the prison facility.
Thus, to avoid violating Chelsea Manning’s constitutional right to be free from cruel and unusual punishment, Fort Leavenworth must provide her requested hormone treatment. As a matter of public policy—particularly in the context of the recent abandonment of “Don’t Ask, Don’t Tell” and other antiquated and discriminatory policies—our government and military should not use the public’s ignorance or moral disapproval to justify the unconstitutional treatment of individuals.