Chelsea Manning and Transgender Service

Chelsea Manning, formerly Bradley Manning, wants to transition from biologically male to female. It has been generally understood or at least suspected that Bradley identifies as a woman. Some are skeptical, but let us assume this is a sincere request (especially considering the physical changes required of someone making such a sincere request). So we have a military inmate requesting state-funded gender reassignment, including hormone therapy and surgery. While humanists almost without exception support LGBT rights, there is a lower degree of understanding of the trans community and the transition of Chelsea Manning in particular touches on military and inmate policy not to mention the already-controversial issue of the Manning trial. In pursuit of some clarity on this issue, I started with the first rule of Trans policy – “Don’t talk about us without us.”

Note: references supporting fact claims are listed at the bottom.

I contacted SPART*A (spartapride.org), the growing advocacy organization supporting the military trans community. My first questions were to better understand the various barriers to service for transgendered persons. These include:

• Gender normativity in the military, which refers to gender-specific rules and standards (medical, physical, uniforms, and some schools at least until 2015). These barriers arise from traditional requirements (uniforms, schools) and medical differences (physical/medical).
• Gender segregation in the military  relates basically to latrines and showers, as well as barracks rooms and fraternization. The underlying issue here is the assumption that sexual assault is well-mitigated by gender segregation. Segregation is not an enlightened answer, but there is certainly something to be said for avoiding rather than resisting temptation. On the other hand, there are no suggestions that LGB persons be segregated by orientation rather than gender.
• Anti-trans policies in the military go beyond gender normativity or segregation. Theoretically someone could meet gender normativity and segregation requirements by operating according to the gender on their official records (eg, where male clothes at work and female clothes off-duty). However, military policy requires separation for trans persons due to so-called ‘gender dysphoria’.
• Transition treatments – Putting aside for a moment the military context, what is the status of transitioning treatments? Would transitioning treatment be covered under standard medical policies? Should these be extended at government cost to inmates? Could accommodation be made for chosen gender expression without hormone therapy and surgery?
• Chelsea Manning’s situation has its own nuances. Again, in this case we will presume the request is sincere and the nature of the crime (big/small, just/unjust) would not affect the decision to provide care.

In receiving responses from the Trans community, I expected an ‘aspirational’ situation whereby significant cost of treatment and lack of domestic and international precedent in legal, military, correctional, and private sector contexts would create a tough decision. What I found was the opposition is almost exclusively ‘yuck’, ‘Jesus’, and inertia. That is to say that some people just think gender transition is icky and would oppose treatment or support due entirely to personal distaste. We can agree that is an invalid excuse. Other opposition is due to religious reasons. In a secular society, there is no standing to impose religious taboos through public policy, so we can also put those objections aside. And finally inertia. The military specifically has no precedent, whatever the justification, so changing policy and culture to accommodate trans persons will take time. The barriers to providing full hormonal and surgical transition for Chelsea Manning seem to lie exclusively in unfavorable legal precedent that protects anti-Trans discrimination.

There should be skepticism to such an easy answer and that is where SPARTA provided such overwhelming and consistent support. The most complex issue is the current legal precedent regarding accommodation of gender transitioning. A brief overview with citations below for readers to do their own research and report potential obstacles in the comments.

The first point is international military precedent. Has this been successful in other nations? The answer is yes. “Commonwealth” nations, which is to say the UK and their former colonies, have Transgender policies and procedures and provided full legal and medical process documented to transition. Post-transition, women have no uterus and men need hormone therapy, but non-trans women without a uterus (hysterectomy) and non-trans men with low testosterone (hypogonadism) receive such treatments without objection. Similarly, use of facilities, wear of uniforms, and other sorts of issues are handled during the process where, after approval, the trans person switches from exclusive use of one facility to exclusive use of the other. Privacy is no concern when there are lots of privacy options already (walls, blankets, shower curtains, etc). Even in the US, the Department of Veterans Affairs provides for some accommodation of transgender persons and the Department of Defense allows transgender veterans to update their gender in official records.

Legal precedent on this issue is conflicting and confusing. Legal precedent bars discrimination based on sexual orientation. This is how DADT and DOMA were repealed. Also important is that discrimination on gender is also prohibited. This was not as clear in the military and has only recently been enforced to allow women in combat arms and combat courses. This also extends to ‘sex stereotypes’ as in the case of Hopkins v. Price Waterhouse (Supreme Court, 1989) which ruled that a woman who wasn’t ‘feminine enough’ was improperly denied promotion. The Hopkins case was crucial in Equal Employment Opportunity Commission (EEOC) finding that laws barring discrimination based on sex, and sex stereotypes, apply to transgender individuals.

The above notwithstanding,  Brynn Tannehill of SPARTA had this to say:

Laws and regulations that specifically target based on sexual orientation are generally viewed with intermediate scrutiny (Romer v. Evans, LCR, and Witt). Subtle, but crucial legal difference. Also note that sexual orientation and gender identity are two different concepts. Also note that the courts have generally held that it is ok to fire a gay man who acts “gay”, but firing a trans woman who acts too feminine is not. This one gets pretty tricky.

An anonymous legal scholar in the area had this grim view: “Pursuing scenarios of impact litigation for transgender service members is a waste of time and energy at present.” This is primarily due to “Military Deference Doctrine” that gives broad leeway for something proposed for military necessity (as applied in the shameful internment of Japanese citizens). So in the area of US legal precedent, there seem to be conflicting reports. Even with promising legal precedent, Manning is in jail.

The legal precedent also extends to the correctional system, and is amplified on the basis of the 8th Amendment (punishment). Denying a necessary medical procedure is considered cruel and unusual punishment. But legal precedent should follow professional medical guidance.

In the medical community, gender reassignment has seemingly universal support. That is to say the medical community considers gender reassignment not just elective or suggested but medically necessary.

• American Medical Association
• American Psychological Association
• National Association of Social Workers
• World Professional Association of Transgender Health
• American Academy of Family Physicians
• National Commission of Correctional Health Care
• American Public Health Association
• American College of Obstetricians and Gynecologists

If there is military precedent, medical necessity, and legal justification, what is the cost? Again, necessary medical treatments may not be denied to inmates, but there is good news on that front as well. 42% of Fortune 100 companies offer gender reassignment as part of their medical care. Portland and a nearby municipality as well as the City and County of San Francisco have seen minimal (less than 1%) increase in insurance premiums. The cost is not controlling, but for those concerned, it may help that the marginal increase is minimal.

A parting note is that all of this assumes a continuation of gender-binary segregation and other policies. Gender is a spectrum and though many fall on the ends, there are those Queer individuals who don’t identify as male or female. Accommodations for Trans persons won’t be sufficient for Queer persons, but that does not imply opposition or insensitivity to the accommodation of gender-queer persons.

So it seems there is little justification to oppose open Transgender service as well as full health care support for military, veterans, and even inmates for full sexual reassignment. That is of course unless you think ‘yuck’, ‘Jesus’, or general allergy to progress are good justifications. It will require hard work to change culture and some of the unfavorable legal precedent, but hopefully cis-gendered allies can join with Trans persons to move toward a more welcoming society.

 

Selected references:

General legal precedent:

32-page Case Law review by SPART*A
Trans Case Law 20130910

Military precedent:

2009DIN07-001 Transgender Persons in the UK military
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/49590/DINDIGEST_2009_January.pdf

Updating DoD veteran service records
http://syndicatednewsservices.com/2013/05/19/pentagon-establishes-process-for-transgender-veterans-to-change-gender-records/

Transgender Discrimination in the Military by Matt Kerrigan, U of Miami, Oct 24, 2011
http://psycnet.apa.org/index.cfm?fa=buy.optionToBuy&id=2011-24240-001

Transgender people in the military by Dr Adam Yerke and Dr Valory Mitchell, Feb 15, 2013
http://www.tandfonline.com/doi/abs/10.1080/00918369.2013.744933#.Uij4VmRATis

Pamphlet on Transgender services in the Veterans Health Administration
http://transequality.org/PDFs/VHA_Trans_Health.pdf

Transgender care guidance at the Boston VA hospital
http://www.boston.va.gov/services/images/LGBT_PATIENT_CARE_MEMO_TRANSGENDER_CARE.pdf

Medical Stance:

Lambda Legal Medical Professional positions on sexual reassignment
http://www.lambdalegal.org/sites/default/files/publications/downloads/fs_professional-org-statements-supporting-trans-health_1.pdf

Costs:

HRC Corporate Equality Index (Coverage and Costs):
http://www.hrc.org/files/assets/resources/CorporateEqualityIndex_2013.pdf

Basic Rights Oregon costs of sexual reassignment coverage:
http://www.basicrights.org/wp-content/uploads/2013/01/DFS.pdf

Representative Anti-Trans Statements:

Catholic Bioethics opposition to sexual reassignment:
http://www.couragerc.net/Transsexual_Issues/Sex_Reassignment.pdf

Elaine Donnelly testimony to Congress:
http://cmrlink.org/data/sites/85/CMRDocuments/Cover-CvrLtr-Index-Questions%20CRWG%20Report020711.pdf