An AP report Wednesday morning suggested that the Defense Department is considering transferring Pvt. Chelsea Manning from the military prison at Fort Leavenworth to a civilian prison. Shortly after being convicted for leaking national security secrets and sentenced to 35 years in prison, Manning came out as transgender. The transfer would allow her to receive hormone therapy as part of her gender transition, as prescribed by her doctors, without violating the military’s ban on providing health services related to transgender identities.
Manning’s attorney, David Coombs, has since accused the Pentagon of “strategically leaking” this possibility as an attempt to pressure Manning to drop her request for treatment. Coombs’ concern reflects the conflict between the military’s ban on transgender service and its obligation to Manning’s health needs as a prisoner at Fort Leavenworth.
Here are three possible ways that Manning could possibly receive the medical treatment she is currently being denied:
1. The military could abandon its anti-trans policy.
The only reason this conflict exists for Manning’s treatment is because of the military’s ban on transgender service. If any other member of the military were to openly identify as trans, they would be discharged from service, but because Manning is tied up in the military’s criminal justice system, she cannot be discharged until her appellate process is complete. Researcher Nathaniel Frank has characterized the Defense Department’s justification for this policy as “robotic” because of the oft-repeated claim that providing transgender-related medical services to active duty troops would somehow be “untenable.” This is despite the fact that many other servicemembers who have a similar consistent need for medical care not disqualified for serving.
On Sunday, Defense Secretary Chuck Hagel said that the ban on transgender service “should be reviewed,” but established no timeline for such a review. The American Psychiatric Association no longer diagnoses transgender identities as a disorder, and the military’s talking point about medical concerns imposes a double standard on transgender servicemembers.
If the policy were lifted, the medical professionals at the Fort Leavenworth prison could provide Manning with the hormone therapy her doctors say she needs without any conflict with military policy. Even with the ban, there is precedent from the Veteran’s Administration, which has extended access to trans-related health care and has allowed trans veterans to change their gender records.
2. Manning could abandon her appellate process.
Given the military’s ban on trans-service is not likely to change particularly soon, it is faced with the conundrum that it cannot discharge Manning while she continues to appeal her conviction over the national security leaks. In general, prisoners are only transferred to the civilian Bureau of Prisons after they have been discharged. This process could take several years, during which the military is responsible for her well-being as its prisoner.
As Coombs’ letter suggests, this could put Manning in a difficult situation regarding her safety and her access to medical treatment. If the military does not find an immediate solution for her, she could abandon her appellate process to hasten her discharge. Eugene Fidell, who teaches military justice at Yale Law School, explained to ThinkProgress, “Treatment becomes hostage to the appellate process.” Manning would essentially have to choose between access to the justice system and access to medical treatment.
3. The military could grant a transfer for medical reasons.
Fidell told ThinkProgress that even though the general rule is that military prisoners cannot be transferred to the civilian prison system until they are discharged, there is one occasional exception for medical concerns. If the military cannot provide a medical service that an inmate requires, he or she can be transferred to a prison that allows for access to that service without forcing the prisoner to sacrifice the appellate process. In 2012, the last year for which data is available, the Army transferred 53 prisoners to civilian prisons, but, Fidell admitted, it is unclear which of the transfers, if any, were related to medical care.
Questions about the medical necessity of transgender-related care have been addressed recently in multiple courts, which have concluded that refusing treatment constitutes cruel and unusual punishment. In January, the First Circuit Court of Appeals ruled that the state of Massachusetts must allow Michelle Kosilek, who was convicted of murder, to receive the sex reassignment surgery prescribed by her doctors. Earlier this month, a federal judge ruled that Ohio inmate Whitney Lee be allowed to continue receiving hormone therapy while in prison. Both Kosilek and Lee identify as trans women, but are serving time in men’s prisons.
If the military applies its own rationale that transgender people have unique medical needs, it could very well apply this exception to allow for Manning’s transfer. However, as Coombs noted, it could present Manning with new safety concerns if she is transferred to a men’s prison.
The military’s proposed plan for Manning has not yet been publicly released. Because having an openly transgender prisoner is a first for the military, any decision that accommodates Manning’s medical needs will likely defy precedent.