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 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 8:05 AM EDT, Wed July 23, 2014
LZ Granderson says Ronald Reagan went horseback riding and took a vacation after the Korean Air Crash of 1983. So why does the GOP keep airbrushing history to bash Obama?
updated 9:38 AM EDT, Wed July 23, 2014
Aaron Miller says Kerry needs the cooperation of Hamas, Israel, Egypt and others if he is to succeed in his peacemaking efforts
updated 8:51 AM EDT, Wed July 23, 2014
Errol Louis says the tragic death of Eric Garner at the hands of the NYPD has its roots in the "broken windows" police strategy from the crime-ridden '80s.
updated 10:08 AM EDT, Wed July 23, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
updated 7:27 AM EDT, Wed July 23, 2014
Ruben Navarrette says Texas Gov. Rick Perry is right to immediately send 1,000 National Guard troops to the U.S.-Mexico border in response to the border children crisis.
updated 9:56 AM EDT, Tue July 22, 2014
Ukraine's president says the downing of MH17 was a terrorist act, but Richard Barrett says it would be considered terrorism only if it was intentional
updated 4:15 PM EDT, Tue July 22, 2014
Robert McIntyre says the loophole that lets firms avoid taxes should be closed
updated 11:35 AM EDT, Tue July 22, 2014
Jeronimo Saldana and Malik Burnett say Gov. Perry's plan to send National Guard to the border won't solve the escalating immigration problem.
updated 1:42 PM EDT, Tue July 22, 2014
Sally Kohn: The world's fish and waters are polluted and under threat. Be very careful what fish you eat
updated 8:42 AM EDT, Tue July 22, 2014
Les Abend says threat information that pilots respond to is only as good as the intelligence from air traffic controllers. And none of it is a match for a radar-guided missile
updated 8:35 AM EDT, Mon July 21, 2014
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
updated 8:27 AM EDT, Mon July 21, 2014
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
updated 7:57 AM EDT, Mon July 21, 2014
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
updated 10:17 AM EDT, Mon July 21, 2014
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
updated 12:42 PM EDT, Fri July 18, 2014
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
updated 9:50 PM EDT, Fri July 18, 2014
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
updated 11:07 AM EDT, Fri July 18, 2014
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
updated 1:55 PM EDT, Sun July 20, 2014
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
updated 3:53 PM EDT, Mon July 21, 2014
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
updated 3:33 PM EDT, Fri July 18, 2014
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
updated 6:11 AM EDT, Fri July 18, 2014
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
updated 3:14 PM EDT, Thu July 17, 2014
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
updated 8:06 AM EDT, Thu July 17, 2014
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
updated 8:14 AM EDT, Thu July 17, 2014
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
updated 4:16 PM EDT, Thu July 17, 2014
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
updated 12:01 PM EDT, Fri July 18, 2014
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
updated 10:04 AM EDT, Fri July 18, 2014
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
updated 12:25 PM EDT, Thu July 24, 2014
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
updated 2:04 PM EDT, Wed July 16, 2014
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
updated 11:18 AM EDT, Thu July 17, 2014
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
updated 9:24 PM EDT, Wed July 16, 2014
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
updated 12:41 PM EDT, Wed July 16, 2014
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT