Not Guilty by Reason of Gender Transgression: The Ethics of Gender Identity Disorder as Criminal Defense and the Case of PFC. Chelsea Manning

City University of New York Law Review, Dec 2013

By Madeline Porta, Published on 07/01/13

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Not Guilty by Reason of Gender Transgression: The Ethics of Gender Identity Disorder as Criminal Defense and the Case of PFC. Chelsea Manning

Recommended Citation Madeline Porta, Not Guilty by Reason of Gender Transgression: The Ethics of Gender Identity Disorder as Criminal Defense and the Case of PFC. Chelsea Manning Not Guilty by Reason of Gender Transgression: The Ethics of Gender Identity Disorder as Criminal Defense and the Case of PFC. Chelsea Manning Madeline Porta 0 1 0 CUNY School of Law 1 The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA - Acknowledgements I gratefully acknowledge the assistance and guidance provided by Ruthann Robson, Professor of Law and University Distinguished Professor. Without her insights, encouragement, and example this piece would not have come to be. I also thank Professor Steve Zeidman, Director of CUNY Law’s Criminal Defense Clinic, for his feedback, ideas, and passion for ensuring zealous defense for all. I am also profoundly grateful for the thoughtful edits and comments—and general love and support—from my fellow CUNY students as we grapple with these issues, especially Wade Rosenthal, Milo Primeaux, Alexandra Smith, Sabina Khan, and the ever-patient editors of this piece, Missy Risser, Cristian Farias, Tatenda Musewe, Ariana Marmora, Chris Michael, and Javeria Hashmi. Finally, my deepest appreciation goes to Tanisha Thompson for her love, light, and laughter. This article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol16/iss2/5 NOT GUILTY BY REASON OF GENDER TRANSGRESSION: THE ETHICS OF GENDER IDENTITY DISORDER AS CRIMINAL DEFENSE AND THE CASE OF PFC. CHELSEA MANNING Madeline Porta † A young person sits in a dark room, face lit by the glow of a computer screen. The person types for long stretches, then pauses while waiting for an instant message response from a new “friend.” The message thread is bursting with the types of confessions familiar in a world of cyber anonymity: job frustration, anxiety, interspersed with flirtatious chatter and inquiries. The scene could describe the activities of hundreds of thousands of young people in America on any given night. When we learn the young person is gay and cannot tell anyone about it, or that the online pseudonym used differed from the gender assigned to the person at birth, we can still picture the scene. We know plenty of young people this could be, maybe even ourselves. Except this young person, Chelsea Manning,1 formerly and fa† J.D. 2013, City University of New York School of Law. I gratefully acknowledge the assistance and guidance provided by Ruthann Robson, Professor of Law and University Distinguished Professor. Without her insights, encouragement, and example this piece would not have come to be. I also thank Professor Steve Zeidman, Director of CUNY Law’s Criminal Defense Clinic, for his feedback, ideas, and passion for ensuring zealous defense for all. I am also profoundly grateful for the thoughtful edits and comments—and general love and support—from my fellow CUNY students as we grapple with these issues, especially Wade Rosenthal, Milo Primeaux, Alexandra Smith, Sabina Khan, and the ever-patient editors of this piece, Missy Risser, Cristian Farias, Tatenda Musewe, Ariana Marmora, Chris Michael, and Javeria Hashmi. Finally, my deepest appreciation goes to Tanisha Thompson for her love, light, and laughter. 1 A day after being sentenced for various military offenses, Manning announced in a written statement that he would like to be known as Chelsea Manning, requested the use of feminine pronouns, and expressed a desire to undergo hormone therapy “as soon as possible.” See TODAY: Bradley Manning: I Want to Live as a Woman (NBC television broadcast Aug. 22, 2013), available at http://www.today.com/news/bradleymanning-i-want-live-woman-6C10974915. Various media outlets quickly honored Manning’s request and began using the correct pronoun. See Andrew Beaujon, AP, New York Times, NPR Update Style on Chelsea Manning, POYNTER (Aug. 29, 2013), http://www .poynter.org/latest-news/mediawire/222260/ap-new-york-times-update-style-on-chel sea-manning/. Except for direct quotations or attributions where a different pronoun would make reading cumbersome, this Note will also use the correct pronouns throughout, even when referencing events and circumstances occurring before Manning’s announcement. See cf. Adam Klasfeld, Transgenderism More Likely in the Military, Study Finds, COURTHOUSE NEWS SERVICE (July 24, 2012, 5:11 AM) , http://www .courthousenews.com/2012/07/24/48664.htm (“Manning reportedly told his lawyers and the public to refer to him as a male.”); Evan Hansen, Manning-Lamo Chat Logs mously known as Pfc. Bradley Manning, was instant-messaging from a tiny office in Iraq where she was deployed as an Army private. And the anxieties expressed had to do not only with being gay in a “Don’t Ask Don’t Tell”2 (DADT) environment of forced secrecy, but also (and more importantly) about being a whistleblow (...truncated)


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Madeline Porta. Not Guilty by Reason of Gender Transgression: The Ethics of Gender Identity Disorder as Criminal Defense and the Case of PFC. Chelsea Manning, City University of New York Law Review, 2013, Volume 16, Issue 2,