Transgender People & Incarceration: A Guide for Reporters
There are few people more vulnerable in American society today than a transgender person in prison.
According to the 2015 US Transgender Survey, transgender people are ten times as likely to be sexually assaulted by another prisoner and five times as likely to be sexually assaulted by prison staff in comparison to their peers. Prison officials frequently deny transgender people medical care, detain them in solitary confinement for prolonged periods, and retaliate against them should they attempt to report such behavior. In many ways, being transgender serves as a multiplier for the grave risks faced by many for physical abuse, sexual abuse, and other forms of lasting trauma while incarcerated.
Reporting on transgender prisoners requires a head for policy, an understanding of the laws governing prison officials as well as prisoners, and a heavy dose of sensitivity. The issues faced by trans prisoners are new to many, but they have a lengthy and well-documented history in our legal system.
This guide will cover the following topics
Transgender Prisoners 101
Housing Transgender Prisoners
Transition-Related Care in Prison
Sources
Reporting on the prison system can be complex and daunting, particularly for reporters new to the topic. Please consider reviewing the recommendations and guidelines of the John Jay Center of Media, Crime, and Justice particularly if this is a new field of coverage for you.
I also borrow heavily from three resources on the matter:
One is this helpful guide and timeline from the ACLU of Oregon. This is where you would find legal precedents regarding the rights of transgender people in prison.
Second is LGBTQ People Behind Bars from the National Center for Transgender Equality, available at no cost here. It is a much more thorough policy introduction designed for advocates.
Third is the National PREA Resource Center which, while not specifically focused on transgender people, is a thorough and well-sourced databank of information about the Prison Rape Elimination Act of 2002.
Transgender Prisoners 101
There are few solid estimates for the number of transgender prisoners held in jails and/or prisons today. The last report issued by the Bureau for Justice Statistics on the matter was published in 2011 and found 3,209 transgender people in US prisons. Many transgender people will hide their status as a transgender person when entering prison for their own safety, ensuring this is likely a vast undercount (not to mention wildly out-of-date).
If you are reporting on conditions within a given state system, consider contacting that state’s Department of Corrections/Bureau of Prisons for more accurate and recent data. Note you are not guaranteed to receive that data upon request and may need to file a FOIA request.
Stemming from high rates of poverty, participation in the sex trade, and profiling by law enforcement, transgender people are twice as likely to be incarcerated than their peers. As the National Center for Transgender Equality reports:
Just in the past year, 2% of respondents had been incarcerated,5 more than twice the rate in the general population (0.87%). The incarceration rate was several times higher among transgender people of color and low-income respondents. For example, nearly one in ten (9%) Black transgender women were incarcerated in the previous year, approximately ten times the rate in the general population. Similarly, one in six (16%) respondents in the 2008–09 National Transgender Discrimination Survey had been incarcerated at any point during their lives, with the rate skyrocketing to 47% among Black transgender people.
Housing Transgender Prisoners
In 2002, the bipartisan Prison Rape Elimination Act was passed in the US Congress and signed by President George W. Bush, setting national standards for prison facilities regarding the prevention of and response to incidents of sexual violence in prison. In 2009, a nonpartisan commission convened by the Department of Justice published guidelines for the application of PREA guidelines for transgender prisoners. Among other recommendations, these standards called for the case-by-case assessment of every prisoner’s placement in either a male or female facility.
As cited by the National PREA Resource Center:
Standard 115.42(c) states:
In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.
In addition, Standard 115.42(e) states:
A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.
Not by anatomy. Not by gender identity. According to federal law, housing decisions must be made on a case-by-case basis with serious consideration of where the individual feels they would be safest.
Despite being in place for more than a decade, these standards are rarely applied in practice, and most transgender prisoners are housed according to their anatomy. Increasingly, transgender prisoners are filing legal challenges to these placements and many have been successful.
Please refer to the ACLU’s breakdown of legal precedents concerning transgender prisoners for more information.
Transition-Related Care in Prison
Click here for a brief introduction to transition-related care for adults.
Transition-related care is recognized throughout the medical mainstream as safe, effective, and necessary. When prescribed to a transgender person as treatment for gender dysphoria, denial of said care is legally no different than denial of any other form of life-saving medical care. As the American Medical Association has argued in court:
Prisoners have a fundamental right to access necessary and effective medical care, and that includes the full range of treatments for gender dysphoria.
And as the ACLU notes:
The Eighth Amendment requires that prisons provide adequate health care for prisoners’ serious medical needs. A staff member of the prison or outside contractor violates the Constitution by causing a prisoner “significant injury or unnecessary and wanton infliction of pain” or by exposing a prisoner to a substantial risk of future harm when the official denies the prisoner medical treatment or offers care that is so incompetent that it amounts to no care at all.
Despite this, many prison officials are resistant to permitting transgender prisoners from accessing transition-related care — regardless of whether said prisoner was diagnosed before or during their prison stay.
Some prison officials might allow prisoners to access a form of transition-related care they were receiving before entering prison, but refuse to allow them any care beyond that. Said “freeze frame” policies are likewise condemned by courts.
In the fall of 2019, the Ninth Circuit Court found in favor of an Idaho inmate who was denied access to transition-related surgery. Like other court cases on the matter, the judge found prison officials violated the prisoner’s 8th Amendment right to live free of “cruel and unusual punishment.”
As the judge’s decision in that case read:
We apply the dictates of the Eighth Amendment today in an area of increased social awareness: transgender health care. We are not the first to speak on the subject, nor will we be the last.
Please refer to the ACLU’s breakdown of legal precedents concerning transgender prisoners for more information.
Sources
State agencies governing correctional facilities should be your first contact, but not your last. Be wary of the noted gap between policy and implementation — just because a state agency tells you they have a policy mandating X does not mean X is actually ever completed in practice.
Black and Pink is the leading national organization serving LGBTQ people inside of or recently departed from the criminal justice system. B&P has ten chapters around the country and is best contacted to understand the reality of incarceration for transgender people. Others include
TGI Justice Project (San Francisco)
Sylvia Rivera Law Project (NYC)
Anti-Violence Project (NYC)
Transcending Barriers (Atlanta)
HIPS (DC)
Prison policies are frequently the subject of legal challenge by advocacy groups and litigants. Consider contacting:
National Center for Lesbian Rights
Lambda Legal
GLAD
Transgender Law Center
State and regional ACLU affiliates are likewise heavily engaged on these topics.
