Chelsea Manning, the former Army intelligence analyst who is serving a 35-year sentence for leaking diplomatic and military documents to WikiLeaks, has had a tough run: She’s already served more time behind bars than any other whistleblower in history; she was held in solitary confinement for 11 months before her trial, which she likened to torture; and it took Army officials nearly 18 months after she sought treatment for gender dysphoria to approve her for hormone treatments, but she is still required to conform to male military dress standards.
The military’s decision in September 2016 to allow her to receive gender confirmation surgery, as part of its broader policy change that allowed transgender service-members to serve openly and receive coverage of their medical care, was a bright spot in a year for Manning that included two suicide attempts and, as punishment, another stint in solitary confinement.
That bright spot, however, may be dimming as a result of the election of Donald Trump. The president-elect pledged in October to review the military’s new policy on transgender service-members, calling it a dangerous act of political correctness. The man he nominated to be his national security advisor, Lt. Gen. Michael Flynn, alluded to the policy during his speech at the Republican National Convention in July, suggesting that it was distracting the troops from their mission.
With the transition team openly determining what executive orders and departmental guidances they can rescind in the first 100 days and beyond, there’s every likelihood that the incoming administration is considering revising President Barack Obama’s military transgender policy—which would deny Manning the opportunity to have the surgery she desires. (The Trump transition team and Trump’s spokeswoman, Hope Hicks, did not return requests for comment.)
“I think that there’s a lot of reason to be concerned about what is going to happen moving forward,” said Chase Strangio, a staff attorney with the ACLU who has represented Manning. “They could reinstate the ban on open trans service right away.”
Through a representative, Manning said the implications of any reversal of the policy would be more then just political. “The consequences for us are potentially fatal,” she said.
If the incoming administration reverses course on transgender service-members in the military, Strangio confirmed, the current rationale behind granting Manning the right to have gender confirming surgery would disappear. “She would probably be the first person to lose care,” he said, “given that prisoners get worse treatment than members of the general population.” A reversal doesn’t mean, however, that there is no possibility that Manning will be allowed to have the surgery eventually. “We have pending litigation, so we can fight this in court,” he explained, “but that will take longer.”
Strangio worries that any further delay could cause Manning irreparable harm, given her mental health problems. “In July, she reached a point of really serious hopelessness and desperation around the denial of health care, surgery particularly, related to her transition,” he said, alluding to her first suicide attempt. “And the idea of another three decades without care…”
“One of the things that was sustaining for her was the ability to have hope at all, which in her circumstances is incredibly important” he added. “Because as soon as she loses hope for treatment, that’s when she begins to despair.”
Harper Jean Tobin, the policy director at the National Center for Transgender Equality, voiced similar concerns. “In terms of the transition, it is disturbing to imagine Chelsea Manning being treated any worse than she has been, but it’s possible,” she said. “The federal government, like state and local governments, has moved slowly in this area and often only at the prodding of the courts saying there are constitutional standards that cannot be compromised here.”
Those constitutional standards include rulings under the Eighth Amendment that consider any denials of access to medical care “cruel and unusual punishment.” Though there has yet to be a Supreme Court ruling on whether denial of access to surgery violates the standard, any transgender inmate in the country is supposed to have access to transition care, including assessment and treatment if a diagnosis is made. And, in 2015, a federal appeals court in California ruled that a transgender inmate was entitled to gender confirming surgery as part of her mandated medical treatment.
“The government, regardless of any crime for which someone has been accused or convicted, has a responsibility to provide appropriate medical care,” Tobin said. “There are very grave questions about whether those responsibilities have been met in Chelsea Manning’s case.”
“Unfortunately, that is not unique to her,” she added. “There are a lot of other transgender people and a lot of other people behind bars who face inadequate medical care, prolonged solitary confinement, an indifference to their well-being or safety, and that’s something we should all be concerned about.”
Still, Tobin said, “The promises and the steps that have been made in providing care for [Manning] have been a result of fierce advocacy for her by her and her attorneys,” something to which not every transgender person who has been incarcerated has access.
Whether the incoming Trump administration will be susceptible to such advocacy, or force Manning’s lawyers to fight for her right to treatment exclusively in court, remains to be seen. Among other things, his election took place in the midst of a backlash to liberal efforts to promote transgender rights, both on the federal and state level, most prominently in the fight over HB2, North Carolina’s so-called bathroom law. It would take a lot of pressure for Trump to go against his base by supporting transgender rights in areas like employment discrimination, health care access, and the right to use public restrooms without fear of arrest, especially for a person convicted of espionage and under the supervision of the military prison system.
One of the factors the Trump administration is likely to consider when making a decision on transgender acceptance in the military is the alleged cost of treatment for gender dysphoria. When it was announced that Manning would be eligible for surgery, Pete Sepp, the president of the conservative National Taxpayers Union, objected to USA Today: “There are plenty of other ways to address this situation than to put taxpayers on the hook for it,” a common refrain among some conservatives.
Strangio, however, said that argument is inaccurate. “It’s far less expensive than other things like dialysis, transplants, many cancer treatments,” he said. “It’s not in the realm of the most expensive medical care that one would need.”
Strangio indicated that, given the potential cost of transporting Manning to a medical facility equipped to perform the surgery, the surgery itself and the immediate aftercare could be in the range of “$30,000-$50,000.”
But Tobin noted that providing appropriate medical care shouldn’t just be about the law or the cost. “We will continue to try to hold to account any administration and any official of any level and branch of government to the standard that, if we are to incarcerate people, we follow standards of basic human decency.”
“No matter how you feel about Chelsea Manning or the crime of which she is convicted, she is a human being,” she added. She also noted that medical care for gender dysphoria is not cosmetic and not optional for many people, which makes denying it to those we incarcerate immoral and unconstitutional. “It’s done ostensibly on behalf of all of us, and we should have a deep moral concern on what’s being done on our behalf.”