The Forgotten Ones: Where do transgender service members stand in the aftermath of the repeal of DADT?

By Anthony Moreland – Following on the heels of the repeal of the policy that openly discriminated against gay and lesbian service members known as “Don’t Ask, Don’t Tell (DADT)”, comes the kindred spirit of the gay and lesbian community, the transgenders. Albeit not a new discussion, the recent revelations of PFC Bradley Manning are bringing the plight of this faction back into the light of day. In 2013, notwithstanding his 35-year prison sentence, PVT Bradley Manning publicly avowed his transgender status and his intention to live his life as a female. In April 2014, PVT Chelsea Manning successfully petitioned for a legal name change. Subsequently, she made a request to begin receiving hormone therapy while in custody. 

Her request has brought about a string of legal complexities. Her fight intended to seek a legal conclusion of her personal medical transition, yet has effectively raised the issue of the ban on transgender service members. The first legal conundrum comes via the outright ban on transgenders in the military, as it affects Manning’s chances of transitioning while in custody. Current regulations classify transgender individuals as “administratively unfit” for duty, though this restriction is in stark contradiction to Section 717 of Title VII. Section 717 of Title VII prohibits sex discrimination in all administrative actions. This Section elucidates who is covered. This protection is encompassing of all those in the military as defined by Title V, Section 102 of the US Code , which covers PVT Manning. Latterly, and because of this regulation the DoD has attempted to transfer Manning to a federal prison in order to have them provide her treatment. To the DoD’s dismay, such a transfer is prohibited by military regulation, which prevents the discharge of any solider prior to the completion of their incarceration.

Secondly, and possibly on a larger scale, Manning’s plight raises the issue of whether or not hormone treatment is medically necessary. Manning’s attorney has openly discussed the possibility of an 8th Amendment lawsuit against the Department of Defense (DoD), which prohibits cruel and unusual punishment. Manning’s attorney will have to prove that hormone therapy is medically necessary for Manning’s Gender Dysphoria (GD). Consequently, in 2012 the World Professional Association for Transgender Health (WPATH), declared treatment for those suffering from GD as medically necessary.

Even though their decision is not legally binding on the military, this finding should serve as persuasive legal authority in the context of the treatment of soldiers in custody. Manning’s attorney will need to convince the court that this scientific finding should be applicable to his client and must also successfully argue that not providing the medically necessary treatment for Manning’s GD is tantamount to cruel and unusual punishment under the Eighth Amendment.

It is necessary to note that when the Eighth Amendment was drafted, it was intended to prevent “torture and “barbarous” methods of punishment. In recent times however, the courts have held that the Eighth Amendment is not static and “(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).

The Court in Estelle v. Gamble, 429 U.S. 97, 105 (1976) opined that “a prison official’s deliberate indifference to the serious medical needs of inmates amounts to cruel and unusual punishment, and violates the eighth amendment.” The key issue here is that WPATH has established and concluded that hormone replacement therapy is a necessary element of the treatment for gender dysphoria. In keeping in line with Chief Justice Warren’s opinion in Gregg, as society evolves and matures, the laws must follow.

To succeed on an Eighth Amendment claim, Manning’s attorney need not show that prison officials “consciously sought to inflict pain by withholding treatment, he must only prove “deliberate indifference to an inmate’s serious medical needs.” Absent any legal precedent, and any issue currently before the Supreme Court regarding military prisoners who wish to begin a gender transition, Manning’s attorney is in the undeniable position to set new legal precedent.

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