We are accustomed to thinking of transgender people in tragic terms. Yet, the reality of living as a transgender person is also always heroic. Tragedy and heroism are the twin sisters of transgender autobiography. And so it is again in the most recent case to capture our attention.
In the figure of Chelsea Manning, this link has been both dramatised and personified. After her conviction for non-espionage related offences under the Espionage Act 1917 (as Daniel Ellsberg reminds us, she was not convicted of espionage despite widespread mis-reporting to that effect),Chelsea Manning has gone public about her transgender identity, something she has been aware of since early childhood. As a transgender woman in a US military prison she is perhaps about to commence the greatest struggle of her life, one even outstripping her Herculean bout with the US military over WikiLeaks.
Even on the most optimistic assessment, barring a pardon, Manning is, according to her defence lawyer, David Coombes, likely to spend at least seven years incarcerated before the possibility of parole (she was sentenced to 35 years).This will, at least initially, be in a male prison as current US prison policy does not appear to accommodate transfer to a female prison until gender reassignment has been undertaken. This prospect contains considerable risks for Manning as it does for transgender prison inmates more generally.
Violence, including sexual violence, against incarcerated transgender people is rife. One recent study in California found that 59 per cent of transgender people reported being sexually assaulted in prison compared to 4 per cent of the prison population at large. These dangers often lead to transgender inmates being segregated or isolated for their own ‘protection.’ Accordingly, Manning’s prison sentence is more punitive than it might initially appear. It is punitive in terms of significantly increased risks to her physical well-being and because prison isolation is a form of psychological abuse. These potential, perhaps likely, encroachments on Manning’s human rights are a direct effect of the transphobic-homophobic culture that pervades penal institutions in the US and elsewhere. Moreover, the problem is not limited to other inmates. As lawyers at the Sylvia Riveria Law Project in New York note, “[a]ny deviance from norms can lead to violence at the hands of corrections officers .” Thus Chelsea Manning, like other transgender inmates, is perhaps likely to “experience a heightened level of gender policing.”
If all this wasn’t bad enough, there is a further punitive element at play in the case. Chelsea Manning has expressed her desire to commence hormone therapy (typically estrogen and anti-androgens) “as soon as possible.” In response to this decision, the US army, while emphasising its anti-discrimination policy credentials (which incidentally do not refer to gender identity as a protected category), have stated: “[t]he army does not provide hormone therapy or sex-reassignment surgery for gender identity disorder.”
It remains to be seen whether Fort Leavenworth military prison, where Manning is to be housed, will accede to her request, though it seems more likely that the matter will be resolved through the courts. The legal and policy position that the US military appear to have adopted is certainly inconsistent with the statement made by the World Professional Association of Transgender Health in 2008 that in appropriate and medically supervised cases, hormone administration and surgery are medically necessary. Moreover, it would seem that prisoners are entitled to adequate health care under the 8th Amendment of the U.S. Constitution as a number of courts have now ruled. That is to say, the denial of medically necessary care while in prison constitutes cruel and unusual punishment. Nevertheless, no U.S. prison inmate has so far received gender reassignment surgery.
This matter will, no doubt, drag on. Let us hope it has a positive outcome. If not pardon, then at least physical safety and satisfaction of necessary health care needs. If nothing else, Chelsea Manning’s high public profile as a whistle blower may serve to shine a brighter light on the plight of transgender people generally within our society and especially on those who find themselves incarcerated in our prisons.
It also serves to draw attention to what has been described by George R. Brown as "flight into hyper-masculinity". While transgender journeys are varied, one recognised way of attempting to resolve the conflict between being gender variant and life in a transphobic society is to enlist in the military or enter some other hyper-masculine occupation. Manning herself stated that she entered the army in order to “get rid of it,” a reference to her transgender feelings. Indeed, a recent study, to be published in a Harvard journal, found that the number of transgender people serving in the military and seeking to do so is likely to be twice the rate for the general population. Earlier this year Kirstin Beck became the first US Navy Seal to come out as transgender. While there are many proud LGBT people serving in the military, the significantly higher incidence of transgender military personnel might be viewed as a kind of litmus test as to where we are as a society in terms of how we value transgender people. In the final analysis, it is ironic and tragic, though of course also heroic, that Chelsea Manning has had to exchange one hypermasculine space (the army) for another (prison).
Alex Sharpe is Professor of Law at Keele University, UK