Skip to main content

Is Bradley Manning entitled to gender change in prison?

By Danny Cevallos, CNN Legal Analyst
updated 3:09 PM EDT, Fri August 23, 2013
During Bradley Manning's court-martial, his defense team released a 2010 photo of him dressed as a woman. Manning, the soldier convicted of giving classified state documents to WikiLeaks, intends to begin hormone therapy for gender reassignment and live the rest of his life as a woman, he said in a statement read on NBC's "Today" show on August 22. During Bradley Manning's court-martial, his defense team released a 2010 photo of him dressed as a woman. Manning, the soldier convicted of giving classified state documents to WikiLeaks, intends to begin hormone therapy for gender reassignment and live the rest of his life as a woman, he said in a statement read on NBC's "Today" show on August 22.
HIDE CAPTION
Intelligence leaker Bradley Manning
Intelligence leaker Bradley Manning
Intelligence leaker Bradley Manning
Intelligence leaker Bradley Manning
<<
<
1
2
3
4
>
>>
STORY HIGHLIGHTS
  • Danny Cevallos: Bradley Manning case may test law on gender identity change in prison
  • A federal court ruled that prisoners must be granted care for gender change
  • Cevallos: The test is whether denial of care amounts to "cruel and unusual punishment"
  • He says other courts have differed on the issue; the law is not fully settled

Editor's note: Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Philadelphia and the U.S. Virgin Islands.

(CNN) -- As Bradley Manning thinks about his 35-year prison sentence, he likely may be contemplating the availability of treatment for his gender identity disorder while in federal custody.

Prisoners with GID are hardly a new phenomenon. Many prisoners before Manning have legally sought the right to become the gender they believe they should be through various means: cross-gender hormones, cross-dressing, and sex-reassignment surgery. The question with prisoners becomes whether the state must provide the desired hormones or sex-reassignment surgery.

The United States Supreme Court has held that prisoners are entitled to medical care that meets minimal standards of adequacy. But when prison officials refuse to provide certain medical services, a prisoner must establish that state officials are deliberately indifferent to "serious medical needs" and therefore are in violation of the Eighth Amendment's ban against "cruel and unusual punishment."

Danny Cevallos
Danny Cevallos

The application of the Eighth Amendment to prisoners is a relatively new concept. The Supreme Court first addressed the issue in 1976, but in doing so established that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," which is covered by the Eighth Amendment's proscription against cruel and unusual punishment.

So what constitutes "serious medical needs"? Courts have held that these can be conditions diagnosed by a physician as requiring treatment. However, courts have also held that the prisoner need not receive "ideal care" or "the care of his choice." Instead, prison officials have some authority to choose among different treatments.

The issue with GID then becomes this: Is it possible that the only appropriate medical treatment for patients (prisoners and civilians alike) with GID is either hormone therapy, or, more drastically, sex-reassignment surgery?

Can Manning get hormones in prison?

Generally, if a treatment is "medically necessary," it will be provided to prisoners. Several medical authorities have stated that in some cases, sex-reassignment surgery is a "medically necessary" treatment for some individuals with GID.

Medical authorities say that severe emotional distress is the result of untreated GID. That distress can lead to self-mutilation and possibly suicide.

Certainly some members of the public will ask the question: "Isn't prison supposed to be unpleasant?" Even more ardent opponents might pose the hypothetical: "If medicine recognizes 'prison-a-phobia' (a fear of incarceration), and the only accepted treatment is release from prison, is an afflicted prisoner constitutionally entitled to release from prison, as medically necessary treatment to which he is entitled?" One could also argue that such arguments stretch the logic to an absurd -- and inapplicable -- extreme.

For prisoners who claim they are entitled to either surgery or hormone treatment under the Eighth Amendment, the issue is even thornier: Does a failure to provide cross-gender hormones or sex-reassignment surgery constitute deliberate indifference to a serious medical need? If so, prisoners could be constitutionally entitled to either or both.

In 2012, a federal district court in Massachusetts held, in a groundbreaking opinion, that prison officials violated the Eighth Amendment by refusing to provide a prisoner sex-reassignment surgery. Even more fascinating, in the same case, Kosilek v. Spencer, the state was already providing feminizing hormones to the prisoner, but the court deemed this constitutionally inadequate treatment.

How did the federal court arrive at this decision? First, it reviewed medical literature, which provided that, in certain cases, sex-reassignment surgery is the only treatment for GID. That literature included the World Professional Association for Transgender Health's "Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People." Those standards provide that in persons with profound GID, "sex reassignment surgery ... is medically indicated and medically necessary." The standards also provide that such surgery is not "elective" or "optional" in any meaningful sense.

Once the court established that medical necessity, there was little to prevent prisoner Michelle (formerly Robert) Kosilek from making his case. The court concluded that Kosilek had a serious medical need; that sex reassignment surgery was the only adequate treatment for it; and that the Department of Corrections was aware of his "suffering serious harm ... if not provided such surgery." By this logic, Kosilek successfully established an Eighth Amendment violation, and the court ordered his sex-reassignment surgery "forthwith" -- legalese for "right away." Courts since Kosilek have arrived at different conclusions.

Society may ultimately reject this logic in the case of prisoners. For example, a prisoner with appendicitis would be entitled to a "medically necessary" appendectomy. Why? Because the consequences of this appendicitis, left untreated, include a very real risk of death. There is no risk of death, or even serious bodily harm (other than self-inflicted) in the case of untreated GID. The benefits are largely mental, emotional, and/or spiritual, and that's why it will be unpopular: Most civilians may not consider the peace of mind of our nation's incarcerated criminals -- at the cost of their tax dollars -- "medically necessary."

So what will Bradley Manning's options be? Will he be entitled to sexual hormone therapy, or sex-reassignment surgery? Will he have the right to have the federal government (i.e., taxpayers) fund this treatment? The answer will turn on whether federal courts will choose to follow the logic of the Kosilek court, and hold that the government's refusal to allow and pay for sex-reassignment surgery for prisoners with GID constitutes "cruel and unusual punishment."

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 9:02 PM EDT, Mon October 20, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:05 AM EDT, Wed October 22, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT