How Will Bradley Manning Be Treated in Prison as a Woman?

The former Army private, now known as Chelsea, is starting a 35-year sentence at an encouraging time for transgender inmates.
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Ken Lamarque/Reuters

Less than 24 hours after being sentenced to 35 years in prison, Bradley Manning, the Army private convicted for leaking classified documents, made an unexpected announcement to the American public. "I am Chelsea Manning," Manning said in a statement read on the TODAY show this morning. "I am female. Given the way that I feel, and have felt, since childhood, I want to begin hormone therapy as soon as possible."

In the past, a transgender prisoner like Manning would have been especially vulnerable to sexual violence. That may be changing, thanks to the Prison Rape Elimination Act (PREA). Although the law was passed by Congress 10 years ago, it was enforced for the first time earlier this week, when every state in the country had to demonstrate compliance with the new set of federal regulations. The regulations were shaped by extensive research and graphic testimonies showing that gay and transgender prisoners were at particular at risk of victimization.

The reforms are particularly good news for male-to-female transgender inmates like Manning who, historically, have been housed with men in jails and prisons. These trans women, many of whom have breasts and feminine appearances, are frequently exposed to unwanted sexual attention and abuse from male staff and inmates. They are particularly vulnerable in settings like communal showers, and they often find themselves targeted for unnecessary pat-downs and strip searches.

Part of the problem is that most jails and prisons have never before used the word "transgender" in any written policies. The first step taken by the new PREA rules is to define some basic terms: gender identity (internal sense of feeling male or female); transgender (a person whose gender identity is different from his or her assigned sex at birth); gender nonconforming (a person whose appearance or manner does not match up with traditional societal gender expectations); and intersex (a person whose sexual or reproductive anatomy or chromosomal pattern does not fit typical definitions of male or female).

After acknowledging all of these variations, the new PREA rules address the question of whether to house transgender inmates with males or females. Jails, prisons, and juvenile facilities are now required to determine on a case-by-case basis whether a trans inmate will be safer housed with men or with women, and must give serious consideration to the inmate's own views regarding his or her safety. Importantly, the label "transgender" is not reserved for those who have undergone surgery or hormone treatment; it's based solely on a person's internal sense of feeling male or female. This means a trans woman like Manning cannot be excluded from protection because she has a penis, or because the prison administrator making housing decisions thinks she doesn't look "female enough".

Notably, trans men (female-to-male) inmates -- even those with facial hair and surgically altered chests -- may choose to remain with women because they feel safer from sexual victimization there. For that reason, there are no one-size-fits-all rules about housing. Instead, prison authorities must focus on minimizing risk of sexual victimization on a case-by-case basis, and ensuring that transgender inmates feel safe.

The housing decision rule also applies to inmates who were born with intersex conditions, including people with atypical genitalia (not clearly identifiable as male or female), those whose genitals look male or female on the outside but who have different internal organs (e.g., a phallus on the outside and a uterus and ovaries on the inside), and those with typical male or female organs whose chromosomes do not match their appearance (e.g., a person who appears physically to be male but has XX or XXY chromosomes).

The PREA rules also include new policies related to showers, pat-downs, and strip searches. Transgender inmates and those born with intersex conditions must be allowed to shower separately from other inmates if they wish. Searches must be conducted in the least intrusive manner possible, and staff must undergo specific training on how to conduct searches of trans people in a respectful and professional manner. The PREA rules prohibit any searches or physical exams whose purpose is solely to determine a person's genital status.

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Terry Schuster is an attorney who specializes in improving conditions in juvenile and adult prison facilities.

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