Monthly Archives: September 2013

What’s in a John(ny) Hancock?

What’s in a John(ny) Hancock?

By: Robert Peel

            When Johnny Manziel allegedly signed autographs for money, he did much more than make a quick dollar or two if the allegations were actually true. He did something far more profound than he ever could have realized: he popularized the modern movement against the hypocrisy of the National Collegiate Athletic Association (NCAA).[1] Because of Johnny Manziel’s high public profile, the advent of social media, and the recent drastic missteps of the NCAA in their enforcement divisions, namely overreaching against the University of Miami and going well outside their bylaws for Penn State University[2], the furor has reached fever pitch against the organization that has “guided” amateur athletics for over 100 years. So what does Johnny Manziel and the NCAA have to do with a blog on civil rights and civil liberties? While even the vast majority of the people who followed the autograph “scandal” closely likely do not know why Manziel’s inability to profit from his own signature is important, the right implicated is the right to publicity, and namely the right to profit under that publicity which is the central issue in a class action lawsuit of former players against the NCAA and EA Sports.

The facts of the story involving Johnny Manziel and his alleged autographing pictures for pay are simple. Several media outlets began reporting over the summer that Johnny Manziel had accepted five-figure payments for his autograph on several photographs, and that his friend had brokered the arrangement with several different autograph dealers.[3] While the autograph dealers would speak to the media outlets, they refused to speak to the NCAA, which essentially rendered their investigation impotent. The motivations of the autograph dealers for disclosing the alleged NCAA violations to the media, but not to the NCAA is unclear. After a lengthy investigation (though certainly brief by NCAA standards), NCAA found Johnny Manziel guilty of a lesser violation (a plea deal of sorts) and deemed him ineligible to play in the first half of Texas A&M’s season opening game against Rice.[4] At contention with the well-known right of publicity is the fact that the alleged NCAA violation occurred because Johnny Manziel was supposed to have known that by signing so many autographs, even without receiving compensation, someone could have profited off of his image.[5] While the public’s reaction was largely that the NCAA’s rules were yet again proven to be ridiculous, the public outrage against the NCAA and its rules against a player profiting off of his own image or autograph was unmistakable.[6]

The outrage began during the NCAA investigation when several media members, notably Jay Bilas, decided to go to the NCAA apparel store online and simply type in the name “Manziel” in the search function of the website which brought up a number two Texas A&M jersey.[7] He then repeated the search with the last names of several big NCAA college football stars including Jadeveon Clowney, Teddy Bridgewater, and AJ McCarron which brought up their respective jerseys as well.  Upon completing his search, Bilas went to social media to post his findings, and the messages went viral.[8] While public outrage compelled the NCAA to remove quickly the search feature from the website, the hypocrisy of the NCAA had finally been exposed on social media given the popularity and polarizing nature of Johnny Manziel. Additionally, several reports came out that Texas A&M was selling tickets for several thousand dollars for the privilege of sitting at a table with Johnny Manziel at booster events.[9] Furthermore, Texas A&M, along with most other major universities, profit nicely from the jersey sales of their current star players (no names are allowed on the jerseys, but there is little doubt whose jersey is being purchased by the fans).[10]  While the NCAA rules prevent the amateur athlete from profiting from his own likeness or image, apparently nothing in the rulebook prevents the NCAA or its member institutions from profiting immensely from their players’ images, either directly, by jersey and other apparel sales, or indirectly from the billions of dollars that flood into the athletic departments of major universities annually from ticket sales and television deals.[11]

Additionally, the NCAA is currently embroiled in a major lawsuit involving EA Sports’s college football videogame which features the likenesses of the college football players given that the vital statistics of those players, while not given names, but merely numbers, match up favorably with most of the college players who that number on the given year of release for the game.[12] While the NCAA has said that no players’ likenesses were used on the game, it ended its association with EA Sports[13] because of the pending lawsuit, and many major college conferences have refused to let their member schools license their logos for future college football games from EA Sports.

So why is all of this such a big deal? It is because of the well known right that celebrities have to their publicity, or in other words, the right of a person to make money off of his own image or likeness.[14] The NCAA’s rules and hypocrisy violate two major provisions of this rule: first, the rules prevent a player from earning publicity off of his own image, and two the rules apparently allow for someone else profit off of the amateur athlete’s image. While law review articles have written arguments that question the wisdom of this policy, the right of publicity is well entrenched in American societies with over twenty states having codified the provisions in statutes, and common law generally favoring the rights of publicity for public figures.[15] While the rights of publicity can be minimized if a story about a public figure is “newsworthy” such as ESPN making money off of story involving a football game in which Johnny Manziel had participated because of its newsworthy status, a company could not conceivably do as the NCAA and its institutions do, sell a Johnny Manziel jersey without paying him some kind of royalty for the right to use his name.[16] While the jersey may not have his name on it, a simple search of “Manziel” in the previous search engine on the NCAA’s apparel website would bring up his jersey (as discussed previously).[17]

The rights of publicity have been long entrenched in American society, with some sources dating the origins of the philosophy to the founding of this nation[18], and the NCAA should modernize its statue to allow players to profit from their success, especially given the impoverished status of many of the biggest stars in the NCAA, Manziel and his family’s wealth notwithstanding. The NCAA cannot enforce its rules consistently and effectively, despite the good faith efforts of its member institutions and their coaches. With so many wealthy boosters and agents tempting young college kids who in many cases were impoverished or suffered some kind of hardship such as being a Katrina refugee[19], or the coach who does the morally correct thing in buying a hungry (and insolvent) football player some tacos so that he can eat[20], the NCAA’s rules need to be updated for the modern world, and by embracing the age-old right to publicity for its athletes, the NCAA may be able to do the correct thing for its players, while being lauded for finally approaching an issue with common sense.

[1] Clay Travis, Manziel Episode Could Stagger NCAA, FOX SPORTS, (Aug. 30, 2013, 2:06 AM)

[2]  George Schroeder, Analysis: The Johnny Manziel Autograph Case, USA TODAY, (Aug. 16, 2013, 7:47 PM)

[3] Id.

[4]  Peter Berkes, Johnny Manziel Briefly Suspended, Ending NCAA Autographs Investigation, (Aug. 28, 2013 3:10 PM)

[5] Id.

[6] See generally supra, Travis

[7] Andy Staples, Online Jersey Sales Highlight NCAA’s Hypocrisy on Amateurism, SPORTS ILLUSTRATED, (Aug. 7, 2013 12:14 AM)

[8] Id.

[9] See generally Gregg Easterbrook, NCAA Can’t Allow Elite to Stand Apart, ESPN, (Aug. 13, 2013).

[10] Id.

[11] Id.

[12] See generally NCAA to End Deal with EA Sports, ESPN, (Jul. 17, 2013, 7:54 PM)

[13] Id.

[14] See generally Michael Maddow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 127, (Jan. 1993).

[15] Id.

[16] Id.

[17] Supra Staples

[18] Supra Maddow

[19] Ty Duffy, D.J. Fluker, Tyler Bray, and Fletcher Cox Accepted Improper Benefits, According to Yahoo Sports (Sep. 11, 2013, 6:13 PM)

[20] Chip Patterson, Arian Foster: “I was getting money on the side” at Tennessee, CBS SPORTS, (Sep. 20, 2013 2:13 PM)


Club Membership on College Campuses: An Argument for Discrimination

Club Membership on College Campuses: An Argument for Discrimination

Jack ODowd

A recent article in the University of Alabama student newspaper, The Crimson White,1 stirred up controversy when it questioned the recruitment practices of a large segment of the university’s sororities. According to the article, a stellar candidate was denied membership in many of the sororities she rushed simply because she was black. Despite the recruit’s 4.3 high school GPA, excellent marks during the rush process, and the fact that her grandfather was an Alabama trustee, no “white” sororities extended an offer of membership to her. Equally shocking was the revelation that in the history of the Panhellenic sorority system, there has been only one black member.

In 2013 exclusionary behavior such as this, refusing a bid to a black girl, is undoubtedly an anachronism and my reasoned judgment is that it is not the way most sorority systems behave (or should behave). But what if sororities, or student membership associations in general, believed that discrimination on the basis of race was central to their group purpose? Because it is so rare to see such blatant discrimination in the über politically correct higher education environment, few people would even think to consider whether a sorority should be able to legally discriminate against blacks. Besides the fact that it is poor form from a social and moral standpoint, why shouldn’t private clubs made up of college students be able to discriminate on the basis of race?  How is the right to freely associate, a First Amendment right entitled to the most rigorous protections, implicated in this debate?

The right of American citizens to freely associate, first explicitly recognized in NAACP v. Alabama ex rel Patterson, flows from the First Amendment, which guarantees freedoms of speech, press, and peaceful assembly.2 One of the most important reasons the First Amendment exists, is to protect unpopular speech. Through free association, persons sharing a common unpopular belief may draw strength from another, otherwise afraid to voice their opinion, and this bond may facilitate “the ability to independently define one’s identity that is central to any concept[] of liberty.”3 The freedom of association furthers a group’s ability to advance “a wide variety of political, social, economic, educational, religious, and cultural ends.”4 Implicit in the idea of the freedom to associate, is the freedom to dissociate, or refuse to allow certain unwanted people to be a part of your group. Importantly though, an “individual’s statutory freedom from discrimination trumps a group’s constitutional freedom from expressive association unless that group can establish a nexus between its exclusionary policy and its expressive association.”5 Thus, by refusing to extend a bid to a prospective sorority sister or group member, club members may be doing no more than exercising fundamental constitutional rights, if exclusion is tied to the purposes of the group.  This could be the case for a hypothetical student organization, we’ll call it Kappa Kappa Kappa, dedicating to advancing the political and cultural agenda of white people. Associational rights are particularly important where admitting members would undermine the purposes and goals of the group, and even more so where the views of the group are unpopular.

A survey of the case law shows that the rights of free association of university groups are gradually eroding, and universities, spurred by a desire to foster “inclusivity” and “diversity”, are forcing groups to admit unwanted members. Though discrimination on the basis of race is, admittedly, not the most sympathetic group philosophy, abridging distasteful speech may eventually lead to other types of less sinister viewpoints being curtailed. The case law bares this out.

In Christian Legal Society v. Martinez6, a group of Christian law students at Hastings College of Law was denied official recognition by the college because CLS required its members to sign a “statement of faith” affirming that homosexuality is sinful. This requirement violated the college’s non-discrimination policies, which forbid student groups from discriminating in admission on the basis of, among other things, sexual orientation. The Supreme Court found that the school’s total inclusion policy furthered its own pedagogical interests, and that because the policy was “viewpoint neutral” in that it did not single out a particular type of discrimination, it did not offend the groups free speech rights.7 In other words, the non-discrimination policy at Hastings was not a selective one, and any viewpoint discrimination was merely incidental to the school promoting its “all comers” policy.

By contrast, some schools have enacted particular policies that seek to eradicate certain types of discrimination. In Alpha Delta Chi-Delta Chapter v. Reed, a Christian student group was denied university recognition because the group’s membership rules required members to be Christians.8 The school justified denying the group recognized status by referencing its “commitment to diversity”, which required official university groups to undertake efforts to ensure diversity within their group. However, “as a matter of practice some student groups were allowed to limit membership to those who agree with the clubs purpose, ideology, or mission.”9 This included a requirement by the Lebanese club that members be willing to work toward an independent Lebanon, an Immigrant Rights Coalition that required members to believe certain things about immigration, and a Planned Parenthood club that required members to be committed to abortion rights.10 Thus, the university’s discrimination policy was not viewpoint neutral, and apparently singled out discrimination on the basis of religion.

In light of Alpha Delta, it is clear that even if a university has a facially viewpoint neutral non-discrimination policy, it may still be engaging in inappropriate viewpoint discrimination by sanctioning those groups whose philosophy is contrary to the mainstream. The result will be that once a group’s philosophy falls out of favor, that group’s membership policy will be regulable. In Healy v. James, the Supreme Court emphasized that discrimination against an unpopular viewpoint by a university is an unacceptable limitation of group speech rights,11 no matter how abhorrent the group philosophy may be. It may be important though to distinguish between group thought and group action, with the former always being allowed and the latter being susceptible regulation due to the university’s interest. Thus, even if a group wanted to discriminate against blacks as part of its group philosophy, actually discriminating against blacks may be outweighed by the university’s compelling interest. At what point though should a university policy permit the school to undermine the associational rights of more savory forms of discrimination, such as religious clubs discriminating against atheists, or fraternities discriminating against women?

Although we may find a university group’s decision to engage in racial discrimination distasteful, that decision could, in theory, be part of the group’s right to express its own political, cultural, religious, or other belief. If so, then the ability of that sorority to discriminate, on any basis, ought to be protected, no matter how abominable, vile, bigoted, hateful, or offensive we may find it. Only the most pressing university interest, such as the health and safety of students, should be justification to diminish individuals’ associational rights. If not, the associational freedoms that are really worth protecting will eventually be gone, always having to succumb to even the most tenuous rationale. As one University of Alabama graduate, Justice Hugo Black, wrote, “I do not believe that it can be too often repeated that the freedoms of speech, press, petition, and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”12



2 357 U.S. 449 (1958).

3 Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984).

4 Id. at 622.

5 9 Wm. & Mary Bill Rts. J. 591, 593 (2001).

6 120 S. Ct. 2871, 2981 (2010).

7 Compare this policy with a policy that says, “only discrimination on the basis of race is forbidden, all other types of discrimination are allowed.” Such a policy would not be viewpoint neutral.

8 648 F.3d 790, 795 (9th Cir. 2011).


9 62 Cath. U. L. Rev. 575, 592 (2012).

10 Id. at n. 126.

11 408 U.S. 169, 170-71 (1972) (university refused to recognize a student group dedicated to “disruption and violence.”)

12 367 U.S. 1, 137 (1961).

Calling For a Fair Catch: The Implications of the NFL Concussion Settlement

Calling For a Fair Catch: The Implications of the NFL Concussion Settlement

 By Clay Comley

            May 2nd of 2012 ushered in another beautiful day in Oceanside California. The Wednesday morning began as any other day in the peaceful town just outside of San Diego. The sun had risen and began welcoming the day’s first waves as they crashed against the beach. But for one resident, the peace was only moments from an abrupt end.

At 9:30 AM, after a morning workout, Megan Noderer returned to the beachside house she shared with her boyfriend expecting to find him just as she had left him… still sleeping in their bed.[1] However, as she entered the bedroom, she immediately knew that this morning was unlike any other. Her boyfriend was dead. 

            The man was Junior Seau, a former professional football player and one of the greatest linebackers the National Football League (“NFL”) had ever seen. During his career from 1990 – 2009, Seau racked up over 1,800 tackles including 56.5 sacks and had been selected for the NFL Pro Bowl 12 times.[2] Beloved by his hometown team, Seau led the San Diego Chargers to a Superbowl appearance after the 1994 season, was inducted into the Chargers Hall of Fame, and had his number, #55, retired by the franchise.[3] He was also known around town as a cheerful restaurant owner who enjoyed surfing and playing his ukulele.[4] Despite all of this success, on May 2nd 2012, Seau decided to take his life with a self-inflicted gunshot to the heart, and was pronounced Dead On Arrival by the emergency response team.[5] Without a suicide note left behind, the question was why.

After his death, the National Institutes of Health concluded that Seau had suffered from chronic traumatic encephalopathy (“CTE”), a progressively degenerative brain disease that results from multiple brain traumas which causes aggression, dementia, and depression.[6] Citing Seau’s disease as the cause of his untimely death, his family filed suit for wrongful death against the NFL in January of 2013.[7]

The Suits

Unfortunately, Junior Seau’s family’s suit was only one of numerous suits against the NFL related to brain injuries sustained while playing in the league. Other plaintiffs included former 2-time Superbowl champion quarterback Jim McMahon, former safety for the Atlanta falcons Ray Easterling, and Chicago Bear’s legendary safety Dave Duerson.[8] Both Easterling and Duerson also committed suicide with a self-inflicted gunshot. Even more alarming is the fact that almost 1/3 (over 4,500) of the NFL’s former players joined as plaintiffs in the class action.[9] All of these claims were based on claims that the NFL not only had knowledge of the negative long-term effects of these brain injuries, but also that the league “deliberately ignored and concealed them.”[10] The class action complaint also discusses the NFL’s Mild Traumatic Brain Injury Committee (“Committee”), and despite significant medical findings, that the Committee as well as the NFL failed to inform players of the findings and warn of the possibility of progressive injuries.[11] All of these claims were later removed to the federal court by the NFL and consolidated as In Re: National Football League Players’ Concussion Injury Litigation.[12] The NFL then filed a motion to dismiss with Judge Brody of the Eastern District of Pennsylvania arguing that due to collective bargaining agreements entered into by the players, this matter was unfit for trial and needed to be resolved through arbitration.[13] Before entering judgment on the NFL’s motion, Brody appointed a former federal judge to oversee a court-ordered mediation between the league and its former players.[14] On August 29th of this year, the parties had agreed to a settlement offer of $765 million, which would offer medical funds to the plaintiffs as well as any other players who satisfy the “baseline” cognitive exams.[15] Lastly, the plaintiffs agreed to release their right to pursue the legal claims against the NFL.[16]


Why Settle?

            Settlement has increasingly become a popular resolution in the U.S. legal system. With a “full settlement”, as the parties reached here, the plaintiffs are offered some form of damages while simultaneously dropping all claims against the defendant.[17] But due to the controversial nature of this matter and the extensive media involvement with a suit against a household name like the NFL, this settlement has received mixed criticism. Numerous people have criticized the settlement, either as a low-ball cop-out for the NFL, or an exorbitant amount for players who knew what they were getting into with a high-contact sport like football.[18] Thus, the main question remains why did both parties agree to settle these extremely serious and sometimes fatal issues?

            The truth is both parties needed this matter settled, but for extremely different reasons. According to the court-appointed mediator, formal U.S. District Judge Layn Phillips, “[B]oth sides recognized that it would be far more productive to get out of court and do something good for retired players with medical needs and focus on the future of the game and making it safer.”[19] As Phillips states, settlement prevented both sides from spending copious amounts of time and money in further litigation with an uncertain future. “A price must be paid for seeing the case through final judgment. Once that cost is estimated, then the possible results must be anticipated and the risks of an undesirable result calculated.”[20] Here, both sides recognized their predicament in a nationally-known lawsuit that involves injured plaintiffs in need of medical care. Both the NFL and its former players had extremely significant incentives to settle this matter.


The Players’ Perspective

            For many of the former players, this suit was not about making money; the damages were necessary in order to pay for the healthcare required for such serious brain issues.[21] Former Philadelphia Eagles fullback Kevin Turner, who now suffers from Lou Gehrig’s Disease due to his head injuries stated, “The compensation provided in this settlement will lift the huge burden off the men who are suffering right now, both them and their and families . . .They’ll no longer have to make decisions regarding their health based on what they can afford.”[22] To a layperson, the fact that former professional athletes who received 6-7 figure salaries often go “broke” is surprising. These spectators would be even more surprised to learn that 78% of NFL players file for bankruptcy within five years of retirement.[23] With such a staggering amount of players without sufficient funds for healthcare compounded with the large number of brain injuries sustained, the players’ need for immediate funds becomes evident. That is precisely why the former players and their families recognized the need for an immediate resolution rather than an uncertain future.

            However, several critics have voiced their disapproval of the former players’ action. Some critics maintain that NFL players knew that they could, and would likely, sustain injuries while playing and should not be able to recover damages for choosing an injurious line of work. Still others, like former Atlanta Falcons cornerback Deion Sanders, have stated that many of the “broke” players are jumping on the lawsuit bandwagon to make a quick buck. “I don’t buy all these guys coming back with these concussions. I’m not buying all that. Half these guys are trying to make money off the deal.”[24] Whether these critiques are meritorious however, is irrelevant due to the NFL’s willingness to part with over 700 million dollars for their former players.


The League’s Perspective

Many people view the NFL’s large settlement as a gracious offer of aid to the players and families in need. In the same aforementioned press conference, Kevin Turner praised the NFL for its settlement offer. “I am very proud that the NFL has decided to stand up for all the former players who are suffering from brain injuries.”[25] By settling, the NFL may have assisted the former players in their time of need. With a high risk of further litigation and a pending motion to dismiss the Plaintiffs’ claims, the NFL’s offer may have been the saving grace the Plaintiffs needed. Even one of the players’ attorneys, Christopher Seeger, stated his fear for further litigation due to the risks of NFL-sponsored arbitration or even worse, complete dismissal.[26]

However, the NFL is not the martyr that some would make it out to be. When asked if the settlement was an acknowledgement by the NFL of some wrongdoing, mediator Layn Phillips clarified that the NFL admitted no liability in this matter.[27] “An agreement doesn’t imply anything about either side’s position. It doesn’t mean that the NFL hid information or did what the plaintiffs claimed in their complaint. It does not mean that the plaintiffs’ injuries were caused by football . . .”[28] Therefore, the NFL may have simply “hushed-up” controversy that would have rocked, and could have seriously hindered one of America’s favorite pastimes. However, as both sides obviously agreed this solution was in each other’s best interests, the players will receive funds and the NFL will play on.

            Just as any football team does in a time of desperation, the Plaintiffs “punted the ball” to the NFL. And seeing the onslaught of chaos and criticism from pursuing the claim any farther, the league “called for a fair catch.” But with so many future uncertainties like the NFL’s injury policies and the number of players that will chip away at the $765 million settlement, who got better field position remains to be seen.


[1] John Johnson, Cops Confirm Junior Seau’s Death Is Suicide Investigation (May 2, 2012, 3:30 PM),

[3] See generally (This website has numerous pages that discuss Seau’s importance to the Chargers franchise).

[5] Rheana Murray, Junior Seau 911 call revealed: Girlfriend Megan Noderer frantically attempted CPR after finding body, NY DAILY NEWS (May 4, 2012, 6:47 PM),

[7] Seau Family Complaint, 2013 WL 265303 (Cal. Super.).

[9] Id.

[10] One of several initial complaints before case consolidation, 2012 WL 204688 (S.D.Fla.).

[11] Id.

[14] Id.

[15] Id.

[16] Id.

[17] BLACK’S LAW DICTIONARY (9th ed. 2009).

[19] Q & A with Judge on NFL’s Concussion Settlement, USA TODAY (Aug. 29, 2013, 6:30 PM),

[20] Id.

[22] Id.

[23] Mina Hochberg, ‘Outside’ at Tribeca: Why do so Many Athletes Go Broke?, OUTSIDE (Apr. 30, 2012),

[24] Ken Bensinger, Deion Sanders, critic of NFL concussion suits, seeks workers’ comp, LA TIMES (Sept. 5, 2013),

[26] Id.

[27] Q & A with Judge on NFL’s Concussion Settlement, USA TODAY (Aug. 29, 2013, 6:30 PM),

[28] Id.

Does Chelsea Manning Have a Right to Hormone Therapy While in Prison?

 Does Chelsea Manning[i] Have a Right to Hormone Therapy While in Prison?

By Jordan Rogers

            In July of this year, Chelsea Manning was convicted by a military judge of, inter alia, violating the Espionage Act and theft for perpetrating the largest leak of classified documents in U.S. history.[ii]  The charges stem from Manning providing thousands of diplomatic cables and other classified documents to WikiLeaks.[iii] Manning’s struggle with gender dysphoria had been disclosed previously and played a prominent role in her defense.[iv] However, after being sentenced to 35 years in a military prison, Manning released the following statement to NBC’s Today show: “I am Chelsea Manning. I am a female. Given the way that I feel, and have felt since childhood, I want to begin hormone therapy as soon as possible.”[v]

Manning’s lawyer, David Coombs, has said that he hopes the military will “do the right thing” so that Manning does not have to file a lawsuit for an injunction.[vi] Coombs has also announced that Manning is willing to pay for the estrogen treatment she has requested, that she does not want gender reassignment surgery (at this point in time), and that she expects to be housed with the male inmates while in prison.[vii] Manning’s situation has drawn attention to how he will be treated in prison, but also to the larger question of what rights prisoners with gender dysphoria have, particularly in regard to the availability of hormone therapy.

The issue of whether prisoners with gender dysphoria are entitled to hormone therapy or sex-reassignment surgery has been litigated by many prisoners before Manning.[viii] Prisoners have based their claims on precedent which has established that ignoring a prisoner’s medical needs is a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.[ix] Previously, such claims brought by prisoners with gender dysphoria were almost universally unsuccessful.[x] However, more recently some courts have been more willing to entertain claims that prisons must provide (or at least not suddenly terminate) hormone treatment for prisoners with gender dysphoria.

In De’Lonta v. Angelone the Fourth Circuit addressed the issue.[xi] A prisoner appealed from a dismissal of her complaint for failure to state a claim by the district court. The plaintiff claimed that her Eighth Amendment rights had been violated in the process of prison officials abruptly discontinuing her hormone treatment. The plaintiff became depressed after the hormone treatment was stopped and began to compulsively mutilate her genitals. The court found that the prisoner had a serious medical need to be protected from further self mutilation and that prison officials could not be “deliberately indifferent” to that need.[xii] While the court did not decide how the prison should be required to attend to the prisoner’s need for protection from self mutilation, it did reverse the dismissal of the complaint and remanded to the district court for further proceedings.[xiii]

The Ninth Circuit also addressed the issue of hormone therapy for prisoners in South v. Gomez.[xiv] In this case, prison officials appealed from a denial of their defense of qualified immunity in a suit brought as a result of their discontinuance of the hormone therapy of a prisoner with gender dysphoria. The Court, in affirming the denial of qualified immunity, distinguished this case from those in other circuits which denied transsexual prisoners hormone therapy based on the fact that this prisoner had been taken off hormone therapy, rather than simply denied access to it.[xv]

The Seventh Circuit had a chance to address both hormone therapy and sex reassignment surgery in Fields v. Smith.[xvi] This case was the result of a challenge by prisoners with gender dysphoria to a Wisconsin statute that forbade prison officials to spend money or use resources to provide hormone therapy or sex reassignment surgery to prisoners. The defendants appealed from a judgment by the district court that the act violated the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s equal protection clause.[xvii] The trial court found, and the defendants did not challenge on appeal, that the plaintiffs had serious medical conditions.[xviii] Instead, the defendants argued that the state had the power to eliminate some treatment options where other treatments existed.[xix] However, the court found that the defendants did not provide evidence that there are effective alternative treatments for prisoners with gender dysphoria.[xx] Thus, the judgment of the district court was affirmed.[xxi]

Some courts have been willing to go even further by actually ordering prison officials to provide hormone therapy.[xxii] The District Court for the District of Idaho did just that in Gammett v. Idaho State Bd. of Corrections.[xxiii] The suit was initiated by a prisoner with gender dysphoria who attempted suicide and later castrated herself after prison officials denied that she had gender dysphoria and refused to provide hormone therapy. The court considered at length the health effects of the hypogonadism caused by the plaintiff’s self castration and ultimately concluded that the appropriate remedy was the administration of estrogen to the plaintiff.[xxiv] Accordingly, the court issued a preliminary injunction requiring the defendants to provide the treatment.[xxv]

Whether the trend towards greater acceptance of hormone treatment for prisoners with gender dysphoria will continue remains to be seen. Any litigation on this issue resulting from Chelsea Manning’s incarceration is sure to bring far more attention to the issue. Hopefully, this attention will help to pressure prison officials and the judicial system to develop more uniform and compassionate policies for the treatment of prisoners with gender dysphoria than those that have been seen in the past.

[i] This post will refer to the person previously known as Pfc. Bradley Manning as Chelsea Manning and will use the feminine pronoun, in accordance with her public request to that effect. For the sake of simplicity, all other prisoners referenced in this post who are transitioning male to female transsexuals will also be referred to with feminine pronouns.

[ii] Eyder Peralta, Bradley Manning Not Guilty of ‘Aiding The Enemy’, NPR (July 30, 2013),

[iii] Id.

[iv] Mark Memmott, Bradley Manning: ‘I Am A Female,’ Call Me Chelsea, NPR (Aug. 22, 2013),

[v] Id.

[vi] Mark Memmott, Manning Would Pay For Hormone Treatment, Lawyer Says, NPR (Aug. 27, 2013),

[vii] Id.

[viii] 1 Karen Moulding & Nat’l Lawyers Guild, Lesbian, Gay, Bisexual and Transgender Comm., Sexual Orientation and the Law § 10:26 (2012).

[viii] Id.

[ix] Id.

[x] Id.

[xi]  De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003).

[xii] Id. at 634.

[xiii] Id. at 635.

[xiv] South v. Gomez, 211 F.3d 1275 (9th Cir. 2000).

[xv] Id.

[xvi] Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) cert. denied, 132 S. Ct. 1810 (U.S. 2012).

[xvii] Id. at 554-55.

[xviii] Id. at 555.

[xix] Id.

[xx] Id. at 556.

[xxi] Id. at 559.

[xxii] Gammett v. Idaho State Bd. of Corrs., 2007 WL 2186896 (D. Idaho 2007).

[xxiii] Id.

[xxiv] Id. at 17-18.

[xxv] Id.

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