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), http://www.npr.org/blogs/thetwo-way/2013/07/30/206976757/verdict-watch-manning-arrives-in-court-supporters-line-fort-meade.
[iv] Mark Memmott, Bradley Manning: ‘I Am A Female,’ Call Me Chelsea, NPR (Aug. 22, 2013), http://www.npr.org/blogs/thetwo-way/2013/08/22/214440560/bradley-manning-i-am-a-female-call-me-chelsea.
[vi] Mark Memmott, Manning Would Pay For Hormone Treatment, Lawyer Says, NPR (Aug. 27, 2013), http://www.npr.org/blogs/thetwo-way/2013/08/27/216084400/manning-would-pay-for-hormone-treatment-lawyer-says.
[viii] 1 Karen Moulding & Nat’l Lawyers Guild, Lesbian, Gay, Bisexual and Transgender Comm., Sexual Orientation and the Law § 10:26 (2012).
[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).
[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.
[xx] Id. at 556.
[xxi] Id. at 559.
[xxii] Gammett v. Idaho State Bd. of Corrs., 2007 WL 2186896 (D. Idaho 2007).
[xxiv] Id. at 17-18.