Responding sharply to a commenter’s expressed criticism of the argument that convicted classified data leaker Bradley, now Chelsea, Manning, sentenced to Federal prison and seeking treatment as a trans-gendered female, ought to have his treatment needs served by prison authorities at public cost, Ethics Alarms’ own expert on such matters (from Australia), provided this fascinating overview of U.S. law and medical ethics on the topic. Here is zoebrain’s Comment of the Day on the recent post flagging Fox News’ juvenile mockery of Manning’s gender issues, Ethics Dunce: Fox News:
“There are two disputes here. The first is whether prisoners have a right to medical treatment, and if so, to what degree.I’ll deal with that first.
“Brown v. Plata 131 S.Ct. 1910 (2011): “To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” ….Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”
“So prisoners are entitled to “adequate medical care”, by the 8th amendment. This is not a matter for debate. That leads on to the second dispute: what do we mean by “adequate”? It has been held that, for example, a blanket policy excluding prisoners from even being assessed to see whether they have diabetes is not “adequate”, even if “all prisoners are treated the same” by it. It has also been held that giving a diabetic prisoner a standard 2 aspirin and a band-aid is not “adequate treatment”, even if it may ameliorate the effects of having gangrenous toes. The treatment can’t be ineffective like this.
“It has been held that providing a prisoner with an experimental and expensive pancreas transplant goes well beyond “adequate treatment”. This is because the recognised standard of care is to manage the problem through insulin injections and diet. That latter is deemed “adequate”. Only what is “medically necessary”, but all of what is “medically necessary” is the standard for adequacy. The treatment doesn’t have to be the best imaginable, but it does have to meet the predefined minimum standard for adequacy.
“Cost of treatment is irrelevant, and cannot be used as an excuse not to provide it, though administrative considerations may be. Much latitude is given to prison administrations there, but they can be called on to provide evidence, not just bald assertions, that such administrative reasons are legitimate and not pretextual.
From the medical standards of care for Transsexuality v6 2001 and as affirmed by AMA resolution 122 (Also the APA, Endocrine Society etc):
“In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not “experimental,” “investigational,” “elective,” “cosmetic,” or optional in any meaningful sense.”
“Note the key phrases “medically necessary” and not “optional in any meaningful sense”. As for alternate “talking cures” that have been conjectured by the public as viable alternatives, psychiatric therapies of unspecified kinds… another quote, this time from the update Standards of Care v7 of 2011:
“Treatment aimed at trying to change a person’s gender identity and expression to become more congruent with sex assigned at birth has been attempted in the past without success (Gelder & Marks, 1969; Greenson, 1964), particularly in the long term (Cohen-Kettenis & Kuiper, 1984; Pauly, 1965). Such treatment is no longer considered ethical.”
“Or, to put it more succinctly, it’s snake oil, and we’ve know that for decades from experimental results. These “alternatives” don’t work, not that they haven’t been tried again and again and again. This argument has been put before Federal courts many times in the last two decades.
See O’Donnabhain v. Commissioner [134 T.C. 34 (2010)], De’lonta v. Angelone,[330 F.3d 630(2003)] , Fields vs Smith [653 F.3d 550 (2011)], Kosilek v. Spencer [889 F.Supp.2d 190 (2012)] In all cases, it was ruled that the decision of what was “medically necessary” resided with the medical profession, not with medically untrained administrators, legislators, or politicians. Neither does the question of whether a Civil Right should be unilaterally terminated belong with the electorate or fourth estate. Furman v. Georgia, 408 U.S. 238, 269 (1972):
“The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”
“And from Kosilek:
“Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose,..It is precisely the type of conduct the Eight Amendment prohibits.”
“So no, you don’t know what you’re talking about, your views have no place in a civilised society, and no-one has to take them into account. Or so say all the federal courts. I happen to agree with them, though I’d really prefer it if I could put the data that led the courts to these conclusions before you, so you could examine them and come to your own conclusions.
“Whether you end up changing your mind or not is another matter, and not one of any great concern to me I’m afraid. These posts are to inform the unprejudiced and unbigoted. They may end up disagreeing with me regardless, but at least their opinions will be informed.”
25 thoughts on “Comment of the Day: “Ethics Dunce: Fox News””
Excellent. Huge kudos to Zoebrain, and to you Jack for highlighting his comments in this way. And for raising the issue in the first place.
I was getting a little frustrated with the number of troglodyte-power comments here – you know, ‘I’m ignorant and proud of it.’ Glad to see the level of evidentiary and logical discussion raised so sharply. I’m back engaged.
“Her” comments, actually 🙂
Though that depends on the jurisdiction.. I have a UK Birth Certificate saying “boy” based on external appearance at birth and a UK passport saying “F”, based on both medical data and obvious appearance now.
I knew I was female since at least age 10, but until my appearance started changing, I experienced Gender Dysphoria due to the mismatch between neuro-anatomy and the rest.
To give an insight into such situations (more common than you may think), here’s the case of a girl born looking mostly female (just as I looked mostly male at birth) who started masculinising (just as I started feminising). To me it was a miracle cure, to her a nightmare.
Re: Sally (Special Medical Procedure)  FamCA 237
Click to access 2010_FamCA_237.pdf
There are some absolutely fascinating legal issues raised by such cases. Some equally interesting social ones too, at turns bizarre, hilarious, and tragic. Unfortunately such facts and events contradict many people’s world-view, especially their religious beliefs. These people see, and with good cause, the existence of such cases as a direct attack on their religion. All too many feel threatened by these cases, so act in self-defence.
My sincere apologies for the faulty his/her attribution; I do know better.
And thanks again for more fascinating material, particularly the Sally document.
You are probably well aware of this, but other readers may benefit, as I did, from a book that does a fine job of demolishing the idea that male and female are distinct, and that preferences and sexuality and gender type are all neatly aligned in the human species.
The book is A Separate Creation, by Chandler Burr, an unusually science-talented journalist, who dispassionately catalogs the frequency of occurrences of various human manifestations. Turns out that variations in sexuality/gender et al are as predictable as left-handedness, and can even be multiplied with statistically verifiable accuracy.
It’s all part of the human condition. Thanks for putting a real face on what is too often the object of depersonalized, irrational hatred.
Small stuff remains unsweated. My thanks for the apology, please don’t worry about it.
zoebrain, That is a fascinating case. I am curious as to whether or not Sally could have had sperm harvested before gonadectomy so she could have the option of having biological children by way of an egg donor and surrogate mother. Then there would be the problem if she has a relationship with a man and they want to raise a biological child whose sperm would they use – his or hers? This does raise so many questions. And thanks to your response here and some searching I now have a wider vocabulary – knowing what gender dysphoria and polymath are!
As a member of the LGBT community myself (As well as being an Aspie, who are just as misunderstood if not as hated), I have to thank Zoe (is it Dr. Zoe?) for summing up both the legal technicalities, medical/scientific data, and some of the feelings of frustration we (I assume it’s we- I may just be projecting as I too often do in place of empathy) feel when trying to talk past what seems to be a brick wall.
No amount of experimental data, no amount of evidence of successful treatment, will satisfy people who refuse to believe we’re anything more than individuals who CHOOSE to live in ‘sin’, whatever the hell that is. I can only be satisfied with Rev. King’s statement that the arc of history will always bend towards justice. Some people, troglodytes, as charles calls them, will never accept the new order, but I like to believe that every person saved from ignorance by logical arguments like this comment of the day makes the world a freer and more just place.
Not Dr Zoe yet.. still working on my thesis. The application of meta-genetic algorithms to determining low-energy conformers of molecules.
I’m neither a lawyer nor a biologist, not even especially bright, but I am a polymath. Also mildly Aspergic and Intersex. The silent I in LGBTI.
I’ve also served on the Australian National University’s ad-hoc team of experts advising the ACT Law Reform Council on these issues.
Many thanks for the kind words, and I hope I’ve been of help.
Thanks for your comment, Zoebrain. I do have a question: do the same rules apply to a military prisoner?
Internal Prisoners (American violators of the UCMJ): Yes, with the usual caveat about the slow moving and historically conservative military bureaucracy.
External Prisoners (enemy combatants): Not really. They are required to receive any medically necessary treatment but only to the degree of adequacy that they would have received outside US captivity. BUT the rules/practice here can get very complex, so this is a pretty generalized statement.
I’m not stoked about it… but it seems legit.
Not sure what health coverage inmates at FT Leavenworth get. Some therapies/procedures may not be covered by military health insurance. There are differences in what the VA (for those who served but have left the service) and TRICARE (are active or retired) offer.
Not sure what health coverage inmates at FT Leavenworth get. Some therapies/procedures may not be covered by military health insurance.
Surely the surgery and hormone therapy is fairly specialized, not like treating Strep throat or whatever.
So if the physicians on staff don’t have the experience or training, will the gov bring on specialists from the civilian population?
Don’t need civvies. WRMC has the best plastic surgeons in the world- I know, they worked on me.
Army Regulation 40–501 lays out the Standards of Medical Fitness required for service in the US Army.
Click to access r40_501.pdf
The reference (302) is to the code in the WHO’s ICD-9 diagnostics manual, which (inter alia) lists homosexuality as a mental illness, and has been obsolete for nearly 40 years. Regulations and policy has been frozen since then, as the ICD-10 said some things about Homosexuality not being disordered. a conclusion unacceptable to the Powers that Be. This pre-dates DADT, and is not affected by its repeal.
Army medics have zero experience in treating Gender Dysphoria. They do have experience in diagnosing it. Upon diagnosis, the patient is administratively separated for being Icky, no need to prove any inability to do the job.
This leads to a problem when the patient is a prisoner, so cannot be discharged until they’ve served their sentence.
Regarding reconstructive surgery – those personnel requiring genital reconstruction are universally male. They get sent to civilian specialists. The best ones in the world are in Serbia, where the doctors have extensive experience in dealing with the effects of “castrator” landmines. They also do much of the world’s FtoM surgery.
I seriously doubt Manning will get any gender transformation surgery or hormone treatment until released from prison.
I really only wish to make one point, without disagreeing at all with the ideas expressed above and in the comments as regards the particular circumstances of the U.S.A. of today. That is that there is an unexamined leg early on, that it all stands on, which turns out not to be an ethical universal after all but only a particular circumstance: that it falls to the state to provide for the needs of prisoners since (this is the break) it has removed their alternative means.
Yet in other times and places prisoners became a charge on their personal connections outside, or earned a living within the restricted economy that that resourcing created within the prisons. That degraded in the western world as those non-state support networks eroded, eventually producing the visibly defective outcomes in the eighteenth and early nineteenth century that led to the sort of prison reform that used state funding to run prisons (as opposed to jailers charging prisoners fees, say by selling them highly priced food and drink, much as other public servants charged clients fees in those days).
But there is no necessary and essential defect in that system, merely an accidental one when the basis for it erodes. I have heard that it still works moderately well in the Persian Gulf, except that consular officials have to stand in for the absent friends and relatives of jailed foreigners and to visit them regularly with material support. In circumstances of that sort, the only ethical obligation for medical treatment is not to bar it – provided that the jailers’ fees are met, just as medical bills would have to be.
So the actual universal ethical requirement is not so much to provide medical treatment as to ensure its genuine accessibility. The particular prescriptions given above are not universals but address the relevant particular circumstances.
Here is a link to an article about the duty of prisons to provide mental health treatment.
Click to access Chapter_29.pdf
Notably, nothing in the article suggests that the law requires prisoners to be adjudged mentally insane before receiving mental health care.
Wonderful comment, Zoe!
I have rarely seen such pains at verbal obfuscation taken in order to justify one of the most outrageous demands ever made by a convicted felon. You people are so caught up in your need to rationalize your own existence that you’ll go to any lengths to push the “gay agenda” on the other 98% of the population… including that we fund the operations that turn your “brethren” into surgically mutilated monsters.
Let me try to break it to you gently. Bradley (not “Chelsea”) Manning is not only a very confused individual, but he’s likewise a traitor who performed actions that should have gotten him hanged. He got off with his life. He has no claim on being granted superfluous medical procedures to satisfy his feminine fantasies. Personally, considering not only his manifest crimes, but his mental and moral state additionally, I’d say that a length of rope would be the best thing for all involved; Manning included.
I don’t know who “you people” are here, SMP, but the post is about broadcast professionalism, not Manning. I yield to no one in my contempt for Bill Clinton’s conduct, but a news outlet playing “Young Girl” or “Smoke-Smoke-Smoke That Cigarette” to leave a story about Monicagate would be equally offensive, nasty, and wrong.
Here’s a novel concept, SMP: My inclinations are in line with yours here. To me, gender reassignment may be desirable for those facing gender identity issues, but it seems essentially optional and not necessary for the state to provide to a prisoner. That’s my basic inclination on hearing the story.
BUT, I’m not a Doctor or expert in any way. Reading ZoeBrain’s links indicates that medical professionals who have actual experience and expertise rather than just gut feelings say that the treatmens medically indicated and not optional in any real way. I figure that real experts probably know more than I do, so their opinion carries more weight than mine and the treatment should be granted. My basic inclination varies with medical expertiese, indicating to me that I do not fully understand the issue and should pull back my initial opinion until I have read and understand more.
How is your point of view any different than those deluded souls who “just KNOW” that vaccines cause Autism, colloidal silver cures cancer, or HIV doesn’t cause AIDS? Clinging to your initial opinion in bald defiance of medical expertise and analysis doesn’t make you smart, just stubborn.
Wait, you mean you think – vaccines DON’T cause autism!? I think you’ve been reading too much, it seems to have impaired your ability to intuit science stuff by gut feel. Don’t get fooled by doctors or experts and such!
Somebody has to stand up to these experts…
And after doing so, you may find your initial opinion confirmed. I disagree, based on the evidence, but this is an area where reasonable people can differ.
All I can reasonably ask for is what you’re doing.
See, now I KNOW you’re lying about something. Nobody is reasonable on the internet 🙂 Thanks for the interesting links.