Note: The Washington Post refused to publish the following article to correct their records
“Chelsea Manning’s lawyer says the DOJ ‘bent over backwards’ to accommodate her medical needs.” I never expected to make headlines for the Washington Post, but I ought to have guessed that if I did, it would involve a misrepresentation in service of my frequent adversary, the United States government. As the lawyer referenced in Eugene Scott’s column, allow me to clarify: in his attempt to shed light on the Trump administration’s ban on trans people in the military, Mr. Scott has merely engaged in an exercise in extreme point-missing. After conceding that this administration’s policies on the rights of trans people are as hazy as they are hostile, Mr. Scott tries to find hope for trans soldiers in, of all places, the state’s successful bid to put my transgender client behind bars.
“Last month,” says Mr. Scott, “[Chelsea] Manning’s attorney, Moira Meltzer-Cohen, told a judge it would be ‘an act of tremendous cruelty’ to send the transgender ex-private to jail because of her medical and safety concerns.” So far so good. But Scott then makes the risible claim that I went on to “praise prosecutors for working in ‘good faith’ and stating that they ‘bent over backward’” to accommodate my client.
Let me be excruciatingly clear. What was being contemplated here was not how best to accommodate the health needs of a trans veteran. Federal prosecutors were trying to convince a district court judge that incarcerating my client would not immediately fall afoul of 8th amendment prohibitions on cruel and unusual punishment
Considering that their primary goal was to incarcerate my client, and given that jails are ill-equipped to accommodate the health needs of gender nonconforming people, there is no doubt that the government is indeed bending over backwards to comply with their obligations under the constitution. But, as I actually indicated in the quote selectively abridged by Mr. Scott, the efforts of the U.S. Attorney and the Alexandria Detention Center notwithstanding, I do not believe there is anything that could make a prison environment consistent with my client’s health and well-being. This is neither praise nor criticism, but an observation that prison is incompatible with the health and dignity of trans people and those with special medical needs. Mr. Scott will forgive my incredulity at his proposition that the state’s endangering Chelsea can be seen as evidence that the Trump administration has a soft spot for trans veterans.
The only evidence we can reasonably adduce from this situation is that the judiciary and the DOJ believe it is suitable to incarcerate a trans veteran in spite of clear and grave risks to her health. Only in Orwellian doublespeak could such obviously punitive state action be interpreted as compassion for a class of people about to be exiled from a huge swath of the state economy. Less still does the US Justice Department’s handling of this case provide any indication of the ways the Veteran’s Administration, for instance, might be expected to treat other trans veterans. If anything, this is evidence that the health and welfare of trans people (and likely the rest of us) is secondary to other state interests, such as their ability to punish anyone who performs the public service of exposing government misdeeds.
It should surprise no one that our concerns about the ways in which jail would compromise Chelsea’s health have been borne out at every turn. Prison is neither a hygienic nor clinically supportive environment. Each health crisis leads to yet more work for jail administrators, and their efforts, which I do not doubt are sincere, are fraught by bureaucratic delay, making them necessarily inefficient and insufficient. Prison is also psychically stressful. As a matter of routine policy, Chelsea, already traumatized by her previous, highly abusive incarceration, was subjected to nearly a month of isolation, which is considered under international law to be torture. This speaks to the very heart of the statement Mr. Scott so profoundly misapprehended. The established and entirely lawful practices of incarceration are devastating to physical and mental health for all people, and have especially cruel consequences for people already traumatized or targeted.
I do not envy Mr. Scott the task of trying to write something coherent about Trump’s ban on trans people in the military, which, Scott admits, is more a slogan than a developed policy. But I would gently suggest that he take a more careful approach to citation, and that he need not join the government in performing apologetic gymnastics for a politics of punishment and exclusion.