Government to Chelsea Manning: ‘We’re Denying Your Treatment for Your Own Good’
It has been five years since Chelsea Manning was arrested and charged with various offenses in connection with her release of documents and other materials to WikiLeaks, including the . It has also been five years since Chelsea was first diagnosed with gender dysphoria by the military.
In the two years she has been incarcerated at the United States Disciplinary Barracks at Fort Leavenworth, Chelsea has been fighting to be treated as female and have her serious medical needs addressed by the military.
Last September, she filed a lawsuit with the ACLU against the Department of Defense and various defense and Army officials demanding that she be treated for her severe gender dysphoria.
As a result of that lawsuit and her persistence in fighting for her medical care, she is now being treated with hormone therapy and permitted some cosmetics to feminize her appearance. But despite repeated recommendations from her military doctors, this September the military doubled down on its position that it would not permit her to follow female hair length and hair grooming standards. The decision means she is forced to have her hair cut every two weeks in a “masculine” fashion that may not exceed two inches.
Chelsea described the effect of these forced haircuts in a post on : “I felt sick. I felt sad. I felt gross — like Frankenstein’s monster...” “After five years — and more — of fighting for survival,” she went on, “I had to fight even more. I was out of energy.”
She amended her lawsuit last month to renew her challenge to the enforcement of these male standards against her. The amended complaint argues that Chelsea is being denied equal protection of the law and is subject to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.
Now, the government has moved to dismiss her lawsuit, arguing among other things that “permitting Manning to wear a feminine hairstyle present[s] unacceptable risk.” “[E]ven if Manning herself is unconcerned about this risk,” the government argues, “her view does not reduce the USDB’s responsibility to guard her safety...”
Though the government undoubtedly must keep Chelsea safe while she is in incarcerated, that obligation does not absolve them of their simultaneous obligation to treat her serious medical needs. Sadly, this type of argument has become commonplace with corrections agencies using the Prison Rape Elimination Act as a sword to harm vulnerable prisoners instead of a shield to protect them.
Like the federal government in Chelsea’s case, the Idaho Department of Corrections in its connects its ban on feminine appearance in men’s facilities to its obligation to prevent sexual violence:
“To foster an environment safe from sexual misconduct, offenders are prohibited from dressing or displaying the appearance of the opposite gender. Specifically, male offenders displaying feminine or effeminate appearance and female offenders displaying masculine appearance to include, but not limited to, the following:
- Hairstyles
- Shaping eyebrows
- Face makeup
- Undergarments
- Jewelry
- Gender opposite clothing”
Perhaps telling of the culture of corrections we have come to accept, the Ninth Circuit Court of Appeals noted this about a pending case concerning labor practices in the Washington Department of Corrections:
“Amazingly, one of the Union's experts offered the following view: Female inmates cannot be shielded from the world in which we live. If they are to reintegrate into society, they have to be taught how to deal with abusive staff, male or female. They have to be taught what constitutes a healthy interaction and what does not. They cannot learn those skills if they are sheltered from contact with males in a position of authority. Sexual abuse is present in all areas of our society: in schools, (at all levels), business, government, military and families. Just as females have to be taught how to deal with those abuses in the larger society, female inmates must be taught as part of the rehabilitation process how to deal with all abusive staff: males and females, custody staff and civilian staff.”
No person — male or female, transgender or cisgender — should have to deal with sexual abuse while incarcerated. That does not mean, however, that to prevent sexual abuse we should tolerate prisons denying any prisoners their right to medical care under some tenuous argument about security.
It is only if we have accepted that prisoners retain no dignity and no humanity that we could even consider these arguments. If that is where we are as a society then we have a problem. We mustn’t accept the cruel and inhumane treatment of our incarcerated community members. Not only is it unconstitutional, it is unconscionable.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.