Skip to main content

Is Bradley Manning entitled to gender change in prison?

By Danny Cevallos, CNN Legal Analyst
August 23, 2013 -- Updated 1909 GMT (0309 HKT)
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
October 22, 2014 -- Updated 2101 GMT (0501 HKT)
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
October 23, 2014 -- Updated 1619 GMT (0019 HKT)
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
October 21, 2014 -- Updated 2235 GMT (0635 HKT)
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
October 24, 2014 -- Updated 1336 GMT (2136 HKT)
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
October 23, 2014 -- Updated 2208 GMT (0608 HKT)
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
October 23, 2014 -- Updated 2154 GMT (0554 HKT)
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
October 24, 2014 -- Updated 1621 GMT (0021 HKT)
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
October 21, 2014 -- Updated 2006 GMT (0406 HKT)
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
October 23, 2014 -- Updated 1414 GMT (2214 HKT)
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
October 21, 2014 -- Updated 1600 GMT (0000 HKT)
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
October 21, 2014 -- Updated 1135 GMT (1935 HKT)
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
October 21, 2014 -- Updated 1312 GMT (2112 HKT)
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
October 21, 2014 -- Updated 1851 GMT (0251 HKT)
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
October 21, 2014 -- Updated 2207 GMT (0607 HKT)
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
October 20, 2014 -- Updated 1329 GMT (2129 HKT)
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
October 20, 2014 -- Updated 2012 GMT (0412 HKT)
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
October 20, 2014 -- Updated 0336 GMT (1136 HKT)
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
October 20, 2014 -- Updated 1223 GMT (2023 HKT)
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.
October 20, 2014 -- Updated 0221 GMT (1021 HKT)
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
October 22, 2014 -- Updated 1205 GMT (2005 HKT)
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.
October 20, 2014 -- Updated 1300 GMT (2100 HKT)
The world's response to Ebola is its own sort of tragedy, writes John Sutter
October 17, 2014 -- Updated 2033 GMT (0433 HKT)
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
October 18, 2014 -- Updated 1722 GMT (0122 HKT)
When you hear "trick or treat" this year, think "nudge," writes John Bare
October 18, 2014 -- Updated 0442 GMT (1242 HKT)
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
October 17, 2014 -- Updated 1345 GMT (2145 HKT)
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
October 16, 2014 -- Updated 2043 GMT (0443 HKT)
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
October 18, 2014 -- Updated 0858 GMT (1658 HKT)
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
October 17, 2014 -- Updated 1342 GMT (2142 HKT)
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.
October 17, 2014 -- Updated 1221 GMT (2021 HKT)
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.
October 16, 2014 -- Updated 2027 GMT (0427 HKT)
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
October 16, 2014 -- Updated 0407 GMT (1207 HKT)
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
October 15, 2014 -- Updated 1153 GMT (1953 HKT)
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
October 16, 2014 -- Updated 0429 GMT (1229 HKT)
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
October 20, 2014 -- Updated 1653 GMT (0053 HKT)
Paul Callan says the Ebola situation is pointing up the need for better leadership
October 15, 2014 -- Updated 2245 GMT (0645 HKT)
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
October 15, 2014 -- Updated 1700 GMT (0100 HKT)
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
October 15, 2014 -- Updated 2301 GMT (0701 HKT)
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
October 14, 2014 -- Updated 1744 GMT (0144 HKT)
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
October 18, 2014 -- Updated 1335 GMT (2135 HKT)
Stop thinking your job will make you happy.
October 15, 2014 -- Updated 0208 GMT (1008 HKT)
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
October 14, 2014 -- Updated 1125 GMT (1925 HKT)
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
October 13, 2014 -- Updated 1303 GMT (2103 HKT)
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?
October 14, 2014 -- Updated 2004 GMT (0404 HKT)
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
October 13, 2014 -- Updated 1307 GMT (2107 HKT)
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
October 13, 2014 -- Updated 2250 GMT (0650 HKT)
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
October 11, 2014 -- Updated 1543 GMT (2343 HKT)
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT