January 06, 2019 Winter 2019

A Federal Attack on LGBTQ2 Rights by Targeting Incarcerated Transgender Women

LGBTQ Prisoner Rights

On May 11, 2018, the Trump Administration announced a new federal Bureau of Prisons (“BOP”) policy that rolls back hardought protections won by incarcerated transgender people under the Obama administration.[13]  The BOP operates under the Department of Justice and incarcerates roughly 184,000 people for violations of federal law, the largest share of which are incarcerated for violations of federal drug laws, and the majority of whom are people of color.[14] 

Prisons are some of the most gender segregated spaces in the United States. The new BOP policy targets particularly vulnerable, trans women, putting them at higher risk of rape and assault, by presuming that these women should be housed in a men’s facility, with men.[15] Trans women now may only rarely, if ever, be considered for housing in a women’s facility— even if it is the safest placement for them and for those around them.[16]   The BOP changed the housing assignment rules first by removing the following language from the Transgender Offender Manual: “The [Transgender Executive Council] will recommend housing by gender identity when appropriate.” The  BOP then added in a number of factors for housing placement of transgender people, starting with the rule that “biological sex” will be used “as the initial determination for designation.” BOP also added a factor considering whether placement into a particular facility would “threaten the management and security of the institution, and/or pose a risk to other inmates in the institution (e.g. considering inmates with histories of trauma, privacy concerns, etc.).”

At first blush, the rule change may seem reasonable. However, consider the following: This rule was put into place as the result of a lawsuit filed by a handful of cisgender BOP inmates who objected to the idea of being housed with transgender women. One of the original Plaintiffs stated that transgender women are men, and that she filed suit in order to get all the “male inmates…removed from women’s prison,” because “it only takes one man to violate my bodily privacy and religious freedom.”[17] This policy change then seems to be about prejudice rather than safety: the belief that transgender people do not exist, but rather are only pretending to be the gender with which they identify.

But trans women are not safe in men’s facilities given the culture of brutality and toxic hypermasculinity prevalent in most U.S. men’s prisons.[18[ The data show that trans women in men’s prisons are raped at a rate 10 to 12 times that of cisgender men.[19] In essence, the federal government is forcing trans women to live in cages with men who rape and otherwise assault and abuse them. This is particularly problematic given that trans persons are 6 times more likely to be incarcerated— due to societal stigma, over- criminalization, and lack of opportunity—than the general U.S. population.[20]

I, and many other LGBTQ2 advocates, believe that such a policy violates the Eighth Amendment prohibition on cruel and unusual punishment.[21] Prisons operate by taking away an individual’s freedom, including their ability to protect themselves. Therefore, it is incumbent upon the prison, acting as an arm of the state, to protect those it incarcerates. As Justice Souter said regarding the Eighth Amendment: “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.”[22]  Deliberately placing trans women into facilities where they are more likely than not to be sexually assaulted seems the very paradigm of cruel and unusual punishment.

Further, treating trans people as their sex assigned at birth, rather than their gender identity, is disrespectful and harmful to trans persons by denying their right to self-identify, even their right to exist.[23] 

While BOP policy only directly affects the 184,000 inmates in BOP custody, federal policy is often used as a rationale by states when those states set their own policies. The BOP was the first jurisdiction in 2016 to implement to a rule that allowed inmates’ gender identity to “be given serious consideration” in housing decisions under the Obama Administration. Advocates were hopeful that other jurisdictions, including state prisons and county jails, would follow suit, protecting and respecting our transgender community members.  The Trump Administration’s punitive change in BOP policy is not based on science or data on inmate safety. Instead, it is predicated on the same stereotypes and myths as the anti-trans bathroom bills: that trans people, especially trans feminine persons, are sexual predators.[24]  Not only are trans people not more likely than anyone else to prey on vulnerable persons, they are far more likely to be preyed upon than the general population.[25]  This is yet another example of how the current administration is working to harm LGBTQ2 people. For a deeper dive on this subject, I recommend reading The Dire Realities of Being a Trans Woman in a Men’s Prison, a blog post by Katelyn Burns, available at https://www.them. us/story/the-dire-realities-of-being-a- trans-woman-in-a-mens-prison.

TASHA HILL

Tasha Hill is an attorney with The Hill Law Firm (www.hillcivilrights.com). Please note, The Equalizer’s editors may have changed the varying sexual orientation and gender identity acronyms to “LG-

BTQ2” for consistency.

Endnotes

1. This is separate from the administration’s proposed government- wide policy to define gender based exclusively and permanently on genitalia at birth, reported in October, 2018, which erase transgender identities for all governmental purposes including identification and healthcare, and eliminate legal protections for transgender persons. See Elizabeth Reis,The Trump Administration Wants to Define a Person’s Sex at Birth. It’s Just Not That Simple, Time (October 23, 2018), http:// time.com/5432006/trump-administration- transgender-definition-intersex-gender-sex/

2.  Federal inmate statistics available at https://www.bop.gov/about/statistics/.

3. Trans men are almost always housed with women and may face anti- trans violence as well.

4.  Bureau of Prisons Transgender Offender Manual, at updated May 11, 2018, available at https://www.documentcloud.org/documents/4459297- BOP-Change-Order-Transgender-Offender- Manual-5.html

5.  Lauren McGaughty, After Texas suit, Trump administration reverses prison policies protecting transgender inmates, Dallas News (May 15, 2018), https://www.dallasnews.com/news/ lgbt/2018/05/14/after-texas-suit-trump- administration-reverses-prison-policies- protecting-transgender-inmates.

6.  Sharon Dolovich, Exclusion and Control in the Carceral State, 16 Berkeley J. Crim L. 259, 277 (Fall, 2011).

7. Valerie Jenness et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault, Ctr. for Evidence-Based Corr. 1, 55 (Apr. 27, 2007), available at http:// ucicorrections.seweb.uci.edu/files/2013/06/ BulletinVol2Issue2.pdf. See also Andrew Harmon, New Rules Target Sexual Assault Epidemic Facing LGBT Inmates, Just Detention International (quoting a Bureau of Justice Statistics survey showing that gay and bisexual men are 10 times more likely to be sexually assaulted in prison than heterosexual men, and lesbian women are twice as likely to be sexually assaulted by staff in prison as female heterosexual women), available at https://justdetention.org/new-rules-target-sexual-assault-epidemic-facing- lgbt-inmates/#search.

8.  Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, available at http://transequality.org/PDFs/ NTDS_Report.pdf. The statistics are even more dismal for trans persons of color, particularly trans feminine persons of color. A full 50% of black trans women report having been incarcerated.

9.  Many advocates have been working with state and local prisons and jails for years in an effort to get trans persons ac- cess to safer, more appropriate housing. This issue may be ripe for litigation in jurisdictions with favorable case law.

10.  Farmer v. Brennan, 511 U.S. 825, 834 (1994).

11.  See Reis, note 1.

12.  See, e.g., https://www.reuters.com/ article/us-usa-lgbt-prisons/u-s-rolls-back- protections-for-transgender-prison-inmates- idUSKCN1ID0O3

13.  See, e.g., National Center for Transgender Equality, noting that “More than one in four trans people has faced a bias-driven assault, and rates were higher for trans women and trans people of color.” Available at https:// transequality.org/issues/anti-violence.