Trans Behind Bars: Injustice and Reform

Makenna Burton

WGST 4650

Professor Danielle MacCartney, PhD

May 8, 2017

Introduction

Conditions in the United States prison system do not provide ideal circumstances to inmates. Healthcare, access to rehabilitation, and other social services are not always offered to people once they have been incarcerated.  In addition to not having admission to rehabilitation services, prison inmates face life-threatening vulnerability within the penitentiary system. These people are undeniably disadvantaged from the rest of the population.  Prisons house diverse populations within various communities, yet prisoners are separated into a male or female binary that does not account for their individual safety or healthcare needs. The separation of men and women into gendered prisons is not in line with current societal norms, and ignores much of the progress from gender equality in recent decades. Gender non-conforming and trans people suffer the most from this binary system, as they do not identify within the socially accepted views of binary gender.  Trans folks are continuously told by society, by the state, and by the law that they do not exist, cannot be categorized, and have no place in the system. Transgender inmates are underprivileged, placed in danger of sexual assault, and deprived of lifesaving medical assistance. This blatant denial of human rights in the trans community requires desperate reform and policy changes in order to be more inclusive and provide safety for those at high risk in the prison system.

Delegitimization of Trans Lives and Bodies by Culture and Society

Trans and genderqueer are used as umbrella terms to describe an individual who does not identify with the gender they were assigned at birth; their psychological identity does not match with their biological sex.  Instances of trans and non-binary folks facing abuse and excessive policing due to their status as transgender is the result of a society that does not legitimize their existence. The criminalization trans people endure by law enforcement is gaining more recognition as more people begin to speak out about their experiences with injustice. Transgender people make up less than 1% of the U.S. population, but 16% of trans people, including 21% of transwomen, will be incarcerated in their lifetime (Wahowiak, 2017). The exceptionally high rate of trans folk’s criminalization is tied to a lifetime of discrimination in employment opportunities, public housing, health care, education, and access to social services (Wahowiak, 2017; Rosenberg and Oswin, 2015). The common obstacle of having identification that does not match up with gender expression or identity, or trends in law making that frame trans people as sexually devious or threatening, make it harder for this community to acquire and maintain jobs. By preventing trans people from having legal documentation that reflects their expressed identity, their existence becomes delegitimized. The criminalization of trans people’s existence can force them to participate in devious actions as a last resort to survival. These disadvantages leave transgender people with few options, pushing them into lives of sex work, or selling drugs to make ends meet.

Furthermore, trans and genderqueer people are exceptionally vulnerable to police profiling: being arrested for using the ‘wrong’ bathroom, meaning the bathroom that aligns with identity but not genitalia,  for failing to produce ‘proper’ identity documents: documents that do represent the person’s current gender identity or name, and for ‘quality-of-life’ crimes such as sleeping in public (Rosenberg and Oswin, 2015). Because these actions are criminalized, transgender people face a substantially higher risk of incarceration.  This type of policing on trans folks lives and bodies delegitimizes their existence and compromises their right to exist in public spaces. 

Delegitimization of Trans Lives and Bodies Inside the Prison System

Once imprisoned, trans people continue to face discrimination from those that are meant to protect them.  Abuse from law enforcement and correctional officers are painstakingly common due to privatization of the prison industry. Privatized prisons are problematic and dangerous because it is almost impossible to regulate and enforce policies regarding trans prisoners (Rosenberg and Oswin, 2015). While neither state nor federal prisons offer a clear cut procedure for trans inmates, private prisons are exceeding dangerous because there is more oversight of abusive behavior. The lack policy and training for correctional officers and prison administration in private prisons leaves trans folks at higher risks of abuse, because there is less monitoring and little penalty for malpractice.

Trans women are strip searched and subjected to derogatory comments by male authorities;  one trans woman reported a marshal grabbing her breasts and forcing her to “urinate in front of other inmates while standing up, an experience that is particularly degrading because of the forced exposure of her genitals and assuming a ‘male’ urinating posture. She was then forced to share a room overnight with several male inmates” (Hagner, 2010, pg. 29).  However the abuse is not only from male authorities, one trans woman reported being called “it” and being encouraged daily by a female officer to kill herself. “She told me that I should kill myself, that I’m not a woman, that I would never be…” (Matricardi, 2016, pg. 716).  Furthermore, the instances of correctional officers watching transwomen shower, refusing to use their preferred pronouns, and treating them with prejudice intersects across almost all trans inmates’ stories (Hagner, 2010; Matricardi, 2016; Rosenberg and Oswin, 2015; Sontag, 2015). These actions by officers are not imposed on non-trans inmates, who get to shower without the invasive eyes and unwanted comments of the officers, and are treated with more humanity and respect (Hagner, 2010).  Pronouns are an integral form of communication and recognition. Misgendering someone can be an insulting and delegitimizing experience for a trans person because it ignores their personhood and gender representation.  Refusing to use a trans person’s preferred pronouns is demeaning, because it communicates that they are not seen as the gender they are representing, and therefore communicates the message that their existence is somehow less real. Using incorrect pronouns invalidates the gender within their heads and hearts, and only focuses on their biological bodies. This dehumanizing and insulting gesture is used as a method to nullify one’s identity.

Sexual Abuse in Prison

Trans folks are at a disproportionately higher risk of sexual abuse in prison than cisgender inmates. Cisgender, otherwise known as non-trans, people identify with the gender they were ascribed at birth, and have the privilege of identifying with the gender society tells them they should have based on their genitals. Cisgender people never have to face the reality of not having their gender validated, and often never have to worry about their safety based on their gender expression.  They also do not face the dangers of being placed in prisons that do not align with their gender identity and representation. The higher risk of sexual abuse among trans folks is a result of indifference and incompetence from guards.

The story of one trans woman named Ashley Diamond garnered lots of attention surrounding the treatment of trans folks in prison.  Diamond was involved in a high profile lawsuit after having endured seven rapes while incarcerated. She reported “deliberate indifference” by law enforcement, who continued to identify her with male pronouns during the hearing (Sontag, 2015).  Another transwoman was raped by a male prisoner, which led to her suicide (Edney, 2004) while another reported being considered a ‘prison whore’ because of her breasts (Sexton and Jenness, 2016).  This type of language and circumstance is widespread among transgender inmates, who are victims of some of the worst sexual violence behind prison walls.   Guard’s lack of rapport and training leaves trans people unprotected from harassment and rape from other inmates. In fact, “transgender prisoners are 13 times more likely than their nontransgender counterparts to be sexually assaulted in prison” (Sexton and Jenness, 2016, pg. 563).  This communicates a strong message that the lives, bodies, and experiences of trans people are disposable, and not worth the same protection that is awarded to cisgender people.

The United States prison system is very hypermasculine, therefore committing and threatening rape is a method of dominance or intimidation enacted by some prisoners in order to control others (Edney, 2004). It is important to understand masculinity as a gendered performance, it is not something innate to a person’s being.  Masculinity is a socially constructed code of conduct that holds men accountable and allows men and women to police other men for their behavior.  This is especially prominent in situations where masculinity is vital to control. Broadcasting masculinity through threats, power and intimidation perpetuates a system of control where those with the most masculinity, i.e. the most privilege, physically or verbally harm those with less privilege, i.e. trans women.  Hypermasculinity is acting within an exaggerated male stereotype.  This means perpetrators choose victims whom they perceive to be the most vulnerable, or those with feminine characteristics (Edney, 2004; Hagner, 2010; Rosenberg and Oswin, 2015). This leaves trans women at a greater risk of abuse within male prisons because of their perceived femininity and lack of privilege. In the past when trans folks have reported their sexual abuse they are ignored or “blamed for the violence under the perception that because of the transgender individual’s gender identity and expression, they ‘deserve it’” (Hagner, 2010, pg. 842).

Solitary Confinement and Safe Housing

Solitary confinement is detrimental to trans inmates physical and mental health, however is unfortunately very common. The likelihood of trans inmates to be immediately placed in solitary confinement upon incarceration is high, even if their crime has not warranted this extreme punishment (Edney, 2004; Hagner, 2010; Matricardi, 2016).  Solitary confinement is disguised as safe housing for trans inmates. Instead of actually providing safe housing, it is a quick fix for placing gender-non-conforming people by themselves in attempts to keep them ‘safe’.  This method does not recognize that solitary confinement is not a solution, and is also extremely damaging to those subjected to it for extended periods.

For instance, upon arrival at Patuxent Institution, a trans woman named Sandy Brown was immediately placed in solitary confinement simply because she was transgender, having done nothing else to warrant such extreme punishment.  Ms. Brown remained in solitary confinement for sixty-six days. “During that entire time period, prison officials only permitted her one hour for recreation – that is, merely one hour out of the 1584 total hours in which she was confined” (Matricardi, 2016, pg. 736).  This kind of inhumane treatment is often described as ‘protection’ for inmates at risk of sexual abuse. Nonetheless, it is a result of cruelty and ignorance on the part of prison institutions that do not care to provide safe housing to marginalized prisoners. 

Mental Health Risks and Injustices

The excuse for placing transgender prisoners in isolation is that they are safer, and more ‘protected’ from the abuse of fellow inmates. However this claim fails to recognize that inmates in solitary confinement face greater risks of mental health disorders, and are still denied access to hormones and other medical treatment that makes them exponentially less safe.  In order to receive hormones while in prison, transgender people must have the psychological diagnosis “Gender Identity Disorder” before their arrest (Edney, 2004; Hagner, 2010).  In certain circumstances, this diagnosis will allow trans folks to maintain the hormones they are on, but refuses to adjust hormone doses or provide them access to psychological care, such as evaluating inmate’s ability to cope with emotional stress or perform mental activities.   Conversely, “few low-income transgender individuals have access to psychiatrists and regular health facilities where they are able to receive a formal diagnosis or begin hormone treatment” (Hagner, 2010, pg. 852).  These folks often resort to non-prescription hormones before their incarceration, and then are left without any hormones upon arrest.  This ‘hormone maintaining’ policy allows those with  documented hormone prescriptions from psychiatrists to maintain the same dosage of hormones they were taking, but fails to address a large majority of trans folks who lack documented gender-affirming hormones outside prisons.  Additionally, it completely ignores the extreme psychological distress and withdrawal symptoms that trans individuals experience once incarcerated.

Removal of gender-affirming hormones can lead to physical changes of inmates’ secondary sex characteristics which medical staff is not equipped to manage. These changes are a “very invasive loss of sovereignty over one’s own body” (Hagner, 2010, pg. 851).  Health care providers are often not experts in how to address their transgender patient’s needs, and fail to recognize that gender dysphoria is regularly linked to other mental health concerns.    This can be a result of the dysphoria itself, or chronic minority stress.  These concerns put trans folks at higher risks of depression, self-harm, anxiety, substance and eating disorders, and psychotic disorders (Edney, 2004).  In extreme circumstances, transgender people have tried to commit suicide, and trans women have attempted to castrate themselves in an attempt to prevent testosterone from entering their bodies (Hagner, 2010). 

On the contrary, it is equally as problematic for health care providers to believe that all of an individual’s health concerns stem from their transgender status. This leads to health care providers denying basic medical care because their patients are documented with the pre-existing of gender dysphoria, even though the conditions are completely unrelated. An example of this is the denial of pap smears to transgender men that are offered to cisgender women, or trans folks being denied cancer screenings because they are trans, even though their transgender status has nothing to do with their risk of cancer (Wahowiak, 2017).  The lack of medical care provided to transgender inmates is cruel and inhumane.  It is a violation of human rights because it denies people access to life-saving treatments, subjects them to loss of sovereignty over their own bodies, and ignores the mental stress that results from not receiving adequate treatment.  These medical policies require reform for the well-being of transgender inmates all around the country.

Policy Changes and Solutions

In order to ensure prison reform for the safety and survival of trans inmates behind bars, inclusive practices that highlight the experience of gender-non-conforming people must be implemented.  Simply developing trans policies is an important step, as much of the problem lies in the fact that these policies do not exist, and correctional facilities and officers are not trained on how to interact with trans inmates. 

Prison guards must be held accountable for their sexual harassment of inmates, this would mean expanding The Prison Rape Elimination Act (PREA) to include trans people (Reid, 2013).  Because guards are commonly perpetuators of violence, either by inflicting it themselves or choosing to ignore violence from other inmates, they will also be instrumental in reducing violent behavior in prisons.  The U.S. Department of Justice (DOJ) is also an instrumental tool in safeguarding vulnerable prisoners from the risk of sexual assault. This federal executive department has the power to enforce ethical behavior and justice for all people, which should include trans people in prison (ACLU, 2014). Expanding the PREA and the DOJ to include trans inmates is a necessary next step in ensuring the safety and inclusion of trans inmates behind bars.

In addition to increasing coverage of the PREA and the DOJ, it is also necessary to be critical of existing legislature. For instance, a major issue within the current system is Title 42 of the United States Code, section 198376 which does not grant inmates substantive rights (Matricardi, 2016). These marginalized groups do not have any protection from substantive law, which defines the rights and responsibilities of the people.  Adjusting this code in a way that offers space for the trans community could send a powerful message that these people do exist, and have a right to exist in the public sphere. 

Policies and programs must also be created that teach guards the appropriate ways to interact with trans inmates. This would include training correctional officers to provide the same treatment that is granted cisgender inmates, such as avoiding derogatory comments about their bodies, grabbing or objectifying body parts, and purposeful misgendering.  Also, requiring guards stay informed of prisoner’s histories of mental illness, trauma, and abuse is vital to their ability to understand and interact with inmates (ACLU, 2014).  Correctional facilities should be held to strict standards of reporting that monitor, limit and standardize practices such as the use of solitary confinement (ACLU, 2014). Officers should be required to report instances between inmates, and only use solitary confinement temporarily and as a last resort if a prisoners poses a direct threat to themselves or others.

Placing inmates in the prison housing that aligns with their internal identity is controversial, especially if the inmate has genitalia that does match their gender identity and expression.  Some may argue that placing trans women with penises in female prisons is dangerous to cisgender women.  Alt-right member Milo Yiannopoulos stated that he “makes no apologies for protecting women from men who are confused about their sexual identity” (Real Time, 2017).   This line of thinking refuses to acknowledge trans women as women, and also perpetuates the idea that trans people are predators inside and outside of prisons. The majority of trans folks in prison are actually non-violent offenders who pose very little security risk (ACLU, 2014). Despite conservative arguments, the PREA would account for any safety concerns by allowing each circumstance to be examined on a case-by-case basis (ACLU, 2014).

Transgender people are far more likely to be victims of violence and harassment.  Due to the hyper masculinity association with violence and dominance, cisgender men will use violence as a way to ensure their position of power. Trans women in prison find themselves on the receiving end of this masculine performance, and will suffer extreme harassment and rape. Protecting trans women from men in male prisons is a vastly more realistic problem than protecting women from transgender women.  This is why placing transgender women in women’s prisons should be strongly considered.  Upon examining the statistics, cisgender men in all male prisons are the most common perpetuators of violence, “About 70 percent of men reported their "worst case incident" involved oral or anal intercourse” (Melby, 2006, pg. 6).  The vast majority of rape in prisons is committed by men.  Blaming trans women for rape is unfounded and prejudiced, when the data shows transgender people are almost always victims, not perpetrators.

Additionally, in order to provide adequate care to transgender inmates, the problem is greater than purely physical safety. Although transgender bodies are under attack in prisons, comprehensive mental health care is equally as vital and lifesaving.  Understanding gender dysphoria as a legitimate condition could pave the way towards granting access to hormone treatment behind bars.  Hormone treatment is necessary for transgender inmates to maintain, because without it inmates can experience unwarranted changes in their bodies and secondary sex characteristics (Hagner, 2010).  These changes can lead to feelings such as lack of autonomy over one’s own body that in turn have a high risk of leading to damaging mental health concerns such as depression, anxiety and self-harm (Edney, 2004). “In order to improve the health of transgender people… simply recognizing that they are human beings deserving of dignity, respect and rights like everyone else, and are not gender and sexual deviants, may be the very first step” (Gooren, Sungkaew, Giltay, and Guadamuz,  2015, pg. 100). Trans people in prison are at the highest risk of physical, sexual, and psychological violence. Denying them access to the same programs and health care as the rest of the prison population will only create more unrest in their lives, and in no way serves to rehabilitate them.

Conclusion

In conclusion, transgender and gender non-conforming individuals face extreme discrimination within the prison industry. Trans inmates are disadvantaged disproportionately to their cisgender counter parts. They are at extreme risk of sexual violence and sexual assault not only from other inmates but from the correctional officers sworn to protect them. They struggle to survive in a system that denies them the medical care they desperately need. Trans people are treated as less than human, subjected to humiliation, and forced to exist in a space that was not created with them in mind.  For the well-being of transgender and gender-non-conforming people all over the United States, there must be a correction of these deeply rooted institutional problems. Implementing programs for protection and rehabilitation, expanding legislature, standardizing prison practices, and providing mental and physical health care should be baseline policies to ensuring the safety of trans folks in prison. 

References

 (ACLU), American Civil Liberties Union. (2014, April). Worse Than Second Class Solitary Confinement of Women in the United States. Retrieved May 5, 2017.

Edney, R. (2004). To Keep Me Safe From Harm? Transgender Prisoners And The 

Experience of Imprisonment. Deakin Law Review, 9(2), 327-338. 

Gooren, L. J., Sungkaew, T., Giltay, E. J., & Guadamuz, T. E. (2015). Cross-sex hormone use, functional health and mental well-being among transgender men ( Toms ) and Transgender Women ( Kathoeys ) in Thailand. Culture, Health & Sexuality, 17(1), 92-103. doi:10.1080/13691058.2014.950982

Hagner, D. (2010). Fighting For Our Lives: The D.C. Trans Coalition’s Campaign for Humane Treatment of Transgender Inmates in District of Columbia Correctional Facilities. Georgetown Journal Of Gender & The Law, 11(3), 837-867. 

Matricardi, D. (2016). Binary Imprisonment: Transgender Inmates 
Ensnared within the System and Confined to Assigned Gender. Mercer Law 
Review, 67(3), 707-739. 

Melby, Todd. (2006). Rising awareness about prison rape. Contemporary Sexuality, 40(9), 6.

Real Time: Milo Yiannopoulos Interview [Interview by B. Maher]. (2017, February 17). Retrieved March 4, 2017, from https://www.youtube.com/watch?v=lImHh7fqrQo

Reid, E. A. (2013). The Prison Rape Elimination Act (PREA) and the Importance of Litigation in Its Enforcement: Holding Guards who Rape Accountable. Yale Law Journal, 122(7), 2084-2097.

Rosenberg, R., & Oswin, N. (2015). Trans embodiment in carceral space: hypermasculinity and the US prison industrial complex. Gender, Place & Culture,22(9), 1269-1286. Retrieved February 1, 2017.

Sexton, L., & Jenness, V. (2016). Punishment & society: "Were like community": Collective identity and collective efficacy among transgender women in prisons for men. Punishment & Society, 18(5), 544-577. Retrieved February 1, 2017.

Sontag, Deborah. "Georgia Says It Will Allow Hormones for Inmates." New 
York Times, 10 Apr. 2015, p. A16(L). Biography in Context, 

Wahowiak, L. (2017). Behind bars, transgender inmates face greater 
risks. Nation's Health, 46(10), 27.