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By Mateo De La Torre* and Harper Jean Tobin**
As the nation discusses sentencing and prison reform, judges and policymakers increasingly consider the rights of an especially vulnerable group of prisoners: those who are transgender.
Similar to other minority groups, LGBTQ people face disproportionate rates of incarceration. Federal data show non-heterosexual adults are locked up at nearly three times the rate of their heterosexual counterparts. While comparable federal data is not yet available for transgender people, a large national survey found transgender adults had been incarcerated at more than twice the rate of the general population.
Hardships already common within American prisons like isolation, abuse, and denial of medical care are present to a high degree among transgender people. More than one-third of transgender prisoners reported experiencing sexual abuse behind bars in the previous year, amounting to nine times the rate of the general inmate population. In fact, the Supreme Court case that set the Eighth Amendment standard for protecting prisoners from such abuse involved a transgender woman who alleged repeated sexual assault.
The stigma of being transgender and the perception of being an easy target are magnified by the still-common practice of housing prisoners in men’s or women’s facilities based on the sex assigned at birth or genitalia. Recognizing this problem, the National Standards to Prevent, Detect, and Respond to Prison Rape (PREA Standards) require placement decisions for transgender or intersex prisoners be made on an individualized, case-by-case basis.
Another still-common practice, purportedly in place for safety reasons, is the use of solitary confinement or other restrictive housing for LGBTQ prisoners, often on an automatic and permanent basis. A 2014 survey found that 85% of LGBTQ prisoners had been in solitary confinement at some point, half of them for two years or more. As Justice Kennedy wrote in his Davis v. Ayala concurrence, reflecting on a growing body of research, “[y]ears on end of near-total isolation exact a terrible price.”
The National Commission on Correctional Health Care recommends that “[t]he management of medical or surgical transgender care should follow accepted [clinical] standards” and “there should be no blanket . . . policies that restrict specific medical treatments.” Nevertheless, many agencies still ban hormonal or surgical treatment for gender dysphoria, inflicting needless suffering and placing prisoners’ health at risk.
One woman incarcerated in Georgia said she was “forced . . . to conform to [the prison’s] idea of gender norms while [officers] flaunt[ed] their blatant disrespect and disregard for my identity and appearance[, and in turn] other inmates observed this display of disrespect and disregard leading to multiple forms of abuse from other inmates during my incarceration.”
Solutions Through Law, Policy, and Culture Change
Progress in this field has been notable but uneven. National PREA Standards have helped change the conversation in corrections, but are limited in scope and lack meaningful enforcement mechanisms. PREA audits are often pro forma, with auditors who have worked in the corrections industry rubber-stamping their former colleagues. While blatant PREA violations can create adverse publicity and help establish wrongdoing in court, they are not directly enforceable. To date, no federal funds have been withheld for violations.
Courts should and increasingly do act to protect the rights of this extraordinarily vulnerable group of prisoners. Courts have recognized that automatic and prolonged isolation of LGBTQ prisoners may violate due process. Other harsh policies that single out transgender people, such as blanket limits on medical treatment, or automatic placement in a facility for one’s assigned sex at birth, may also violate the Eighth or Fourteenth Amendments, or the Americans with Disabilities Act. Massachusetts recently transferred a transgender woman from a men’s to a women’s prison as part of a settlement of ADA and constitutional claims.
However, prisoner litigation is notoriously difficult and complex, due to an inherent asymmetry in resources, judicial deference to officials, and the extremely onerous Prisoner Litigation Reform Act. Court rulings can help move the needle, but often do not provide clear and specific guidance for future cases.
Policymakers should secure clear protections through legislation or regulation. For example, a 2018 Massachusetts law provides that transgender prisoners should generally be housed, searched, verbally addressed, and have access to clothing and commissary items in accord with their gender identity. The law also prohibits making LGBTQ or intersex status a basis for restrictive housing. A similar bill was approved by an Assembly committee in California earlier this year.
Policy changes aimed at reducing discrimination and increasing access to employment, housing, and health care for transgender people, along with broader justice and sentencing reforms, such as the decriminalization of sex work, will likely aid in reducing disparities in transgender incarceration.
* Mateo De La Torre is the Director of Policy and Advocacy at Black and Pink.
** Harper Jean Tobin is the Director of Policy at the National Center for Transgender Equality. She leads NCTE’s advocacy with Congress and federal agencies and oversees NCTE’s state policy work.