"I'm hoping Fort Leavenworth will do the right thing and provide that [treatment]," Manning's lawyer told the Today show. "If Fort Leavenworth does not, then I'm going to do everything in my power to make sure they are forced to do so."
And he may have the grounds to establish one. Right now, two ongoing legal proceedings about transgender treatment in prisons may pave the way.
Ophelia Azriel De'lonta was born Michael A. Stokes, and she has been in a Virginia prison for 30 years. Per a 2004 legal victory, she is allowed to dress in women's clothes and has recieved hormonal-treatment therapy. But still, according to court documents, these interventions haven't quelled her desire for a complete sex change. She has attempted self-castration several times.
"De'lonta's complaint alleges that, in light of their knowledge of her ongoing risk of self-mutilation, appellees' continued denial of consideration for sex-reassignment surgery constitutes deliberate indifference to her serious medical need in violation of the Eighth Amendment," the Fourth Circuit Court of Appeals wrote in January. The Eighth Amendment forbids "cruel and unusual punishment."
The World Professional Association for Transgender Health sets the standards for care for a person who is transgender. And it states that care culminates in sex-reassignment surgery. After all, the judges reasoned, it would be cruel to deny surgery to a person who needed it for, say, a broken bone. If gender-identity disorder is indeed a medical condition, it needs to follow the same guidelines. The judges wrote:
By analogy, imagine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate's symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery. Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact they were giving him a painkiller? We think not.
While the judges did not order that Virginia provide a surgery, they did say De'lonta had a valid Eighth Amendment claim (which a lower court had thrown out).
And a second case, out of Boston, might set the precedent for transgenders being eligible for surgery while in prison (though Manning's only current request is the hormone treatment). In 1990, when Michelle L. Kosilek was still known as Robert, she murdered her wife. She's now serving a life sentence. Over the past few decades, her legal proceedings have followed a similar path as De'lonta's. First in 2003, she successfully sued to receive hormone treatment. And in September 2012, again citing the Eighth Amendment, she won the right to a state-funded sex change. The court ruled:
The Eighth Amendment does not permit the unnecessary infliction of pain on a prisoner, either intentionally or because of the deliberate indifference of the responsible prison official. Any such infliction of pain is deemed "wanton." The wanton infliction of pain on an inmate violates the Eighth Amendment. Prisoners have long been held to have a right to humane treatment, including a right to adequate care for their serious medical needs.
The state quickly appealed the ruling, and the case remains unresolved. It proved to be a tricky point for many, even Sen. Elizabeth Warren, D-Mass., a liberal who supports many gay-rights initiatives. "I have to say," she said, "I don't think that's a good use of taxpayer dollars."