The Department of Justice filed a brief on Nov. 10 arguing that a lawsuit filed by Chelsea Manning against the department should be dismissed. Manning is suing the department for its refusal to allow her to follow female grooming standards consistent with her gender identity.
Manning, a former U.S. Army private, came out as transgender in 2013, one day after being sentenced to 35 years in prison for releasing more than 700,000 government files containing sensitive information to the online government watchdog site Wikileaks. It was one of the largest leaks of classified documents in American history.
Since that time, Manning and her lawyers have battled with government officials over Manning’s recommended treatment for gender dysphoria.
As a result of a lawsuit filed in September 2014 against then-Secretary of Defense Chuck Hagel — and other officials from the Department of Defense and the U.S. Army — the government agreed to allow Manning to receive hormone therapy, speech therapy and cosmetics, but has refused to allow her to grow out her hair. Manning has promised to fight the decision, arguing that it is part of her necessary treatment for gender dysphoria.
The DOJ has argued that Manning must comply with the same grooming standards as other inmates at the United States Disciplinary Barracks (USDB) in Leavenworth, Kansas. The USDB is a maximum-security facility for men, meaning all prisoners must have hair no longer than two inches in length.
“As described in Manning’s Amended Complaint, Manning is currently receiving a significant amount of medical treatment for her gender dysphoria. Specifically, Manning is receiving weekly psychotherapy, including psychotherapy specific to gender dysphoria, the provision of female undergarments, permission to wear prescribed cosmetics in her daily life at the USDB, speech therapy, and cross-sex hormone therapy,” the DOJ writes in its request to have Manning’s lawsuit dismissed.
“Notwithstanding all of these treatments, Manning claims that Defendants have violated the Eighth Amendment by not permitting her to wear a feminine hairstyle…consistent with what is permitted for inmates at the military’s female prison,” the brief continues. “Separately, Manning also claims that the USDB’s enforcement of its hair restriction violates the Fifth Amendment’s guarantee of equal protection, because inmates in the military’s female prison are permitted to have longer hair.
“The issue before this court is quite narrow — whether the USDB, a military prison for men, is required to stop enforcing its military grooming standards and allow Manning, an incarcerated transgender female, to grow her hair longer than what is permitted for the rest of her fellow prisoners,” the DOJ argues. “This narrow issue is fundamentally intertwined, however, with preserving core prison-security and military values at the UDSB, such as uniform treatment and good order and discipline. Manning asks this Court to second-guess the considered determinations of military and corrections professionals as how best to protect those interests.”
The brief also argues that preventing Manning from growing out her hair is for her own good, as a way to protect her from potential assaults that she might be subjected to due to her feminine appearance.
“I believe that defining ourselves in our own terms and in our own languages is one of the most powerful and important rights that we have as human beings,” Manning said in a statement in response to the DOJ brief. “Presenting myself in the gender that I am is about my right to exist. What the government is basically telling me is ‘you cannot exist,’ that ‘you are wrong,’ and that ‘you do not exist.’ What they are doing is taking away our right to exist. I think this is the kind of situation that justifies all kinds of terrible things like ignorance, maltreatment, torture, murder, and genocide.
“Nobody knows your gender more than you do,” added Manning. “You do not know my gender better than I do. A doctor doesn’t know it better than me. My parents don’t know it better than me. No one experiences my gender in the way that I experience it. Gender presentation should reflect the person that you are. When you lose control of your gender presentation you lose an important aspect of your identity and existence.”
Chase Strangio, Manning’s lawyer from the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, argues that the government is complicating the matter while also violating his client’s right to be “free from cruel and unusual punishment.”
“Chelsea’s demand is simple: that she be treated with her medically necessary treatment and like all other women in military custody,” Strangio said in a statement. “Her fight is central to the pursuit for justice for transgender people and for those who are incarcerated and we are honored to fight alongside her.”
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