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Manning defense's focus on gender identity disorder alarms some

Joshua Roberts / Reuters

Army Pfc. Bradley Manning leaves U.S. Magistrate Court at Fort Meade, Md., on Tuesday.

Raising the hackles of some attorneys who work on transgender legal issues, defense attorneys for Bradley Manning apparently intend to make an almost novel legal argument -- that the Army private was suffering from gender identity disorder when his alleged crimes were committed -- if his case proceeds to court martial as expected.

In the first five days of Manning’s preliminary hearing at Fort Meade, Md., prosecutors and defense attorneys have both presented evidence that Manning, accused of leaking hundreds of thousands of secret government documents to the WikiLeaks website, was wrestling with gender issues in the period leading up to the publication of the documents.

The defense stated Saturday that Manning, 24, had written to one of his supervisors when he was stationed in Iraq before his arrest and said he had concluded he was suffering from gender identity disorder, which is classified as a medical disorder in the International Statistical Classification of Diseases and Related Health Problems. He included a photo of himself dressed as a woman in the letter and said the issue was affecting his ability to do his job or think clearly.

A defense attorney and a witness also stated that Manning had created a Facebook profile and opened at least one email account using the name “Breanna Manning,” which the attorney described as an “alter-ego.”

As the hearing continued Tuesday, prosecutors presented testimony indicating that Manning had used another soldier’s laptop to order a book on female facial reconstructive surgery from Amazon.com that he had shipped to his Potomac address.

A search of Amazon.com for the term “female facial reconstructive surgery” returns just one title, “Facial Feminization Surgery: A Guide for the Transgendered Woman.”

Also Tuesday, Manning’s attorneys did little to challenge testimony by prosecution witnesses tying Manning to WikiLeaks founder Julian Assange and other electronic evidence collected in the case.

Manning is charged with aiding the enemy and violating the Espionage Act. If found guilty, he could be sentenced to life in prison.

If Manning’s case does go to court martial, his attorneys will apparently be just the second defense team to attempt to use a gender identity disorder as at least a partial defense in a military case, according to Jack King, a staff attorney with the National Association of Criminal Defense Attorneys specializing in mental health issues.

The only other case on record, he said, involved Karen Davis, a Navy electrician's mate, second class, formerly known as Charles Marx, who was prosecuted in the mid-1980s “for wearing women's clothing (a skirt, nylons, a women's blouse, a bra, women's fashion jeans, nail polish, a purse, and a wig) on numerous occasions while at the Puget Sound Naval Shipyard.”

In appealing her court martial in 1988, Davis' attorneys argued that such conduct was not illegal. They also stated that, while living as Marx, she had been diagnosed by several Navy psychiatrists as having gender identity disorder and that cross-dressing was therapeutic.

The military appeals court allowed her dishonorable discharge to stand for the reason that cross-dressing was “prejudicial to good order and discipline and discrediting of the Armed Forces."

King said such a case would be unlikely today, given the greater understanding of gender identity disorder.

“Now, if a person could show that because he or she believed themselves to be a member of the opposite sex they had an irresistible impulse to cross-dress, they would in all likelihood qualify for a medical discharge,” he said.

Several attorneys who work with transgender legal issues said they were not aware of a gender identity disorder defense being raised in a civilian court, and King said it’s easy to see why not, noting that such a diagnosis “doesn’t prevent you from knowing right from wrong.” The disorder is most often raised in criminal proceedings as part of an overall insanity defense, or by expert witnesses arguing that a defendant is so mentally damaged that he or she should be committed, he said.

And several lawyers who work with transgender clients indicated they were not happy with the direction that the Manning proceedings have taken.

“We don’t think that being transgender, if he in fact is, has anything to do with him breaking the law,” said Kylar Broadus, an attorney with the Transgender Law and Policy Institute. “Obviously the charges are serious and we don’t want the trial to be sensationalized or detracted from by him being transgender.”

“Our opinion is there is no correlation between anything he has done and gender identity disorder,” agreed Dru Levasseur, a transgender rights attorney with Lambda Legal.

“This plays into stereotypes that are not true,” he continued. “There are a lot of people with gender identity disorder fighting for their lives to be respected and understood as human beings who need equal access to the law. This type of scenario just confuses the situation.”

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