sentencing standards of care


Prison exterior by Chris Gray

Chelsea Manning‘s news presence has veered from her leak of classified documents to WikiLeaks and subsequent conviction of espionage to her public confirmation of her already widely-acknowledged gender. Her identity with an unassigned gender and the medical associations that it entails may have implications for the conditions and duration of her sentence. In particular, it is unknown whether she will eventually be able to receive hormone replacement therapy while incarcerated at Fort Leavenworth.

The terms of transgender prisoners is an important human rights issue and hardly exclusive to high-profile cases like Manning’s. Case in point: Ophelia De’lonta.

De’lonta is incarcerated in Buckingham County for a 78-year sentence for bank robbery. Despite years of hormone therapy, she remains at a men’s prison. At a hearing on Monday, De’lonta’s lawyers made the case to federal court judge James Turk to allow her to be evaluated, at her own expense, for readiness for reassignment surgery. (Turk had previously denied De’lonta’s requests but was rebuffed by an appeals court.) On Wednesday, Turk approved the request. The evaluation is only the next hurdle De’lonta will face in her pursuit of reassignment surgery.

And, of course, objections are continually being raised, including by prison officials and by locals.

One of the first things worth recognizing here is how completely irrelevant De’lonta’s crime and sentence (not to mention her bipolarity and childhood) are to whether she receives treatment. Among the commonest objections one hears to any calls for the humane treatment of prisoners is that these people relinquished their privileges when they broke the law. At one level, this is trivially true: By being sentenced to prison, inmates have had some of their basic rights and privileges suspended—that’s one way to think of what a sentence is. Those rights and privileges to be suspended, however, are enumerated in the sentence. To use the sentence to justify further violations of a prisoner’s rights is a classic example of moving the goalposts.

A typical fallback to this objection is to cry “special treatment”: that tax dollars should not pay for “superfluous” or “cosmetic” treatment. Under existing law, prisoners must be treated for reasonable and medically necessary care, at state expense if necessary. This is one of the responsibilities the state assumes through incarceration. The “special treatment” objection challenges the reasonableness or necessity of gender therapies (some other medical conditions are indeed explicitly excluded).

There does exist a widely-recognized referee, the DSM, which views gender dysphoria (PDF) as a diagnosis that justifies the need for gender therapy. Even then, however, the interpretation filters through (#5 on the standards list) the assessments of De’lonta’s preferred physician and one appointed by Turk, and there is a distressing legacy associated with such decisions. For a thorough discussion of relevant precedent, see here.

Much more can and should be said about the misconceptions on which objections to De’lonta’s—and Manning’s—treatment are based. Fortunately, Zinnia Jones, a confidant and friend of Manning’s, has already taken the trouble, in a string of valuable interviews on national media. I learned more than i’d even thought about, much less known, from this appearance alone (TW; for a discussion of CNN’s persistent misgendering, see here, and for more on how the media handles and often bungles persons and pronouns, see here):

I’ll bow out here and leave the stage to Jones.

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