Updated May 9, 2016
The phrase “cruel and unusual punishment” often relates to sentences for criminal defendants. But it can also apply to conditions those defendants face once they are imprisoned. Lack of food, physical abuse, and sleep deprivation are examples. But there’s a relatively new form of cruel and unusual punishment that some courts have recognized: failure to provide gender-reassignment treatment to transgender inmates.
In July of 2013, a military judge convicted then Private Bradley Manning of 20 charges relating to the release of hundreds of thousands of classified documents to WikiLeaks. Most of the convictions related to espionage, theft, and fraud. The judge acquitted Manning of the most serious charge of aiding the enemy. In August of the same year, the judge sentenced Manning to 35 years in prison. But it’s what came after the sentence that really stirred debate.
Shortly after the sentence, Manning announced that she would go by the name Chelsea and hoped to begin hormone therapy as soon as possible. The prison set to hold Manning quickly responded, pointing to military policy against “hormone therapy or sex-reassignment surgery for gender identity disorder.” But eventually, in February of 2015, the Army approved Manning for hormone therapy.
Some argue that the Army had no choice but to authorize this kind of treatment, claiming that the Eighth Amendment to the U.S. Constitution requires it.
The Eighth Amendment prohibits “cruel and unusual punishments.” In recent years, a number of prisoners in the U.S. have used the cruel and unusual punishment cause to argue for the care necessary to transition from male to female.
Prisoners have rights to basic life necessities, such as food, shelter, clothing, and medical care. So, prison officials showing “deliberate indifference to serious medical needs” violates the cruel and unusual punishment clause. Prisoners who can show a “substantial risk of serious harm” from lack of medical care will prevail on a cruel and unusual punishment claim. And courts have observed that the clause requires that prison officials treat the root of any medical problem, rather than treat it only to make it less painful.
Though prisoners seeking hormone therapy or sex-reassignment surgery have met mixed results in the courts, the trend appears to be in their favor. For example, in 2015, California became the first state to have a policy of providing sex-reassignment surgery for inmates in certain instances. (The policy doesn't cover treatment the government considers cosmetic, and treatment must follow medical and psychological review of the candidate. The candidate must also meet other criteria.)
Though the adoption of policies like California's might obviate the need for some lawsuits, gender-reassignment litigation will undoubtedly continue wherever inmates can't get treatment. The cruel and unusual punishment clause will continue to be at the heart of it.