The Criminal Justice System's Mistreatment of Transgender Individuals: A Call for Policy Reform to Assist a Marginalized Prisoner Community

While media coverage and politicians constantly acknowledge the inadequacies of the criminal justice system in managing victims and offenders of color and low socioeconomic status, the discussion about the failure of the criminal justice system towards transgender individuals, victims or offenders, is an issue that is rarely discussed. Transgender individuals have experienced a history of mistreatment and prejudice by traditional society, including judicially, but with contemporary acceptance movements and a rise in openly trans figureheads and celebrities, some may think the history of mistreatment has ended. Research focused specifically on the treatment of transgender individuals throughout the judicial process, for both victims and offenders, states otherwise. Still today we see this marginalized community faced with sexual violence while incarcerated because of their status and improper placement, the misuse of solitary confinement to “protect” these individuals, and a great deal of victim-blame and denied program access stemmed from transphobic prejudice. This paper will explore the historical and modern aspects of this issue and will conclude that criminal justice policy development and reform is needed.

A Brief Historical Context

The criminalization of being anything other than a heteronormative, binary enforced, birth-sex identifying (further referred to as cis-gendered) individual is visible throughout U.S. history. As the states developed, 17th-century British colonial sodomy laws targeted marginalized groups, escalating to the medicalization of persons thought to be queer in sexuality and/or gender identity in the late 19th century, and continuing to focus heavily on the homosexual community specifically in the 1960s (ACLU, 2018; Buist and Stone, 2014). Laws were enacted to make gender and sexually variant acts transgressive crimes. From the 1850s through to the 20th century, dressing as the opposite gender was considered a criminal act in some cities, directly affecting transgender individuals. The passage of time and formation of advocacy groups has not eradicated this kind of targeting; issues such as the criminalization of transgender bathroom use and loose antidiscrimination policies still unfairly introduce transgender people to the criminal justice system (American Civil Liberties Union, 2018).

In 2012, cases of criminalizing bathroom usage for trans individuals still occurred; a transwoman in Dallas, Texas was ticketed for public indecency for using the women’s restroom in a hospital. Barely a year later, in 2013, another transwoman was banned from a supermarket in Idaho for using the women’s restroom. Even with current antidiscrimination protections and the Hate Crime Prevention Act, which criminalizes willfully causing bodily harm to a person because of “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability” (The United States Department of Justice, 2015), trans people can still be criminalized for their identity in places that have loose definitions of who and what is protected. Today, we still see penalties for transgender people in the criminal justice system as they are repeatedly faced with discrimination that increases their likelihood of participating in criminal activities, unfairly targeted and harassed by law enforcement, met with bias and stereotyping in courtrooms, wrongfully placed and maltreated in prison facilities, and blocked from accessing resources and programs upon exiting the criminal justice system. All these occurrences are prevalent in the United States today, often identified and challenged by Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Asexual or Allied (LGBTQA+) activists and similar support organizations, yet the current state of power and policy still allows the prejudice to persist.

The Current Situation: Trans Individuals and the Criminal Justice System

The transgender population is overrepresented in the criminal justice system. In 2011, 16% of all transgender and gender non-conforming (those whose gender identity does not fit within binary expectations) people reported a history of incarceration (Center for American Progress, 2016), compared to only 5% of the U.S. population. This degree of overrepresentation of trans individuals has several potential explanations, all of which point to the inadequacies of the criminal justice system. Beginning at the law enforcement level, countless trans individuals have reported profiling and subsequent mistreatment at the hands of police officers (Moran and Sharpe, 2004). Although this does not represent all law enforcement practices, the stories of abuse are broadcast to a wider audience, causing trans individuals to distrust the police. This can lead to low reporting rates from trans victims due to concerns that they will face similar brutality and injustice at the hand of the police if they ask for help. Additional barriers are created due to collaboration between the police and immigration offices, misgendering identity documents, and stereotypical targeting. Opening to the possibility of detained transgender immigrants being reported to immigration detention because their gender identity does not match with that of the sex category listed on the immigrant status documentation.

Moving on to the courts and the application of legislation, some laws are crafted in such a way that they target the majority of the trans population and the court system does little to acknowledge it. HIV criminalization and sex work criminalization both share a central theme; they are easily applied to a large part of the trans population. Trans individuals are easy targets when it comes to these laws and the courts have the power to convict them even when discrimination is identified and acknowledged in court proceedings. We may want to believe that the courts will phase out individuals with transphobic and discriminatory ideas, but this is not always the case. Discrimination in court accompanied by problematic laws has a predictable outcome: incarceration that often involves the harassment and abuse of trans offenders.

Looking next at correctional institutions, a trans individual will often be placed in a prison that matches the gender listed on their birth certificate, regardless of whether it matches the offender’s identified gender. This means that transwomen end up in men’s prisons and transmen end up in women’s prisons. First-hand accounts from prisons, jails, and immigration facilities (presented below), illustrate the high degree of sexual assault that occurs between trans convicts, other inmates, and/or facility staff at these locations (Arkles, 2009). The mismatch between identity and gendered facility also increases the likelihood of physical assault and harassment, overall disrespect, and limited access to proper medical support. In addition, these facilities may misuse solitary confinement to “protect” transgendered inmates, leading to reluctance on the part of trans inmates to report victimization due to the fear of being further abused or sent to solitary. These injustices are demonstrated in the case of Farmer v. Brennan (1994), where transwoman Dee Farmer, despite displaying “noticeably feminine attributes,” was placed in an all-male prison. Only nine days after her placement, Farmer was forcibly raped and beaten by another prisoner, suffering a reported number of cuts and bruises as well as mental anguish, psychological damage, and feelings of humiliation (Rifkin, 1995). After the event, Farmer was placed in segregation as a means of “protection.” From general policing to the conditions of incarceration, the criminal justice system does no favors for trans individuals.

Transgender people who speak out about their time in correctional facilities speak of sexual assault, physical abuse, and degrading and dehumanizing treatment they faced throughout their sentence (Edney, 2004). Transwoman Sophia Brooks was transferred into a male prison, despite being three years into her transition, and later recounted the abuse she suffered at the hands of prison guards and inmates alike. Brooks told of the derogatory comments made by guards during strip-searches, how she was denied women's apparel such as a sports bra, and her experiences of being placed in a protective care unit, including being raped by other inmates (U.N. Committee Against Torture, 2006).

The impact of this kind of treatment has common themes, outcomes that affected many of the transgender inmates that gave their stories. Many speak of the mental illnesses they developed during and after their time in prison. Depression and suicidal ideation is the most common, accompanied by a low sense of self-worth and a belief that they are less than human or less than normal. Lisa Nelson, a transwoman prisoner held in a male facility, reported the desire to commit suicide after being repeatedly raped by other inmates and ridiculed by guards who witnessed the assaults (U.N. Committee Against Torture, 2006).

The violence and mistreatment of transgender individuals by both regular members of society and the criminal justice system works to further perpetuate the notion that “normal” means cisgender. “Normalcy” holds a great deal of importance in society and failing to conform to this expectation damns individuals to unfavorable and damaging treatment. Violence and maltreatment in policing, in courthouses, and in prison systems only further perpetuates the idea that individuals of binary non-conforming gender identity are handled this way because they are not “normal.” This sends the message that if the criminal justice system can treat trans individuals as “less than human” then society can as well.

This raises the question of how historical and contemporary mistreatment can be properly addressed. It is posited here that ensuring a safe, secure, and respectful environment for trans victims and offenders requires the implementation of legislative changes: accurate trans-specific definitions that are applied consistently and policies that directly address the abuse trans individuals suffer within and outside of the criminal justice system. This is an issue of discrimination but also of resetting old stereotypical perceptions and definitions that society may still have of gender non-conforming people.

The Current State of Policy

A reasonable person would agree that, when a problem is identified, the next step would be to develop a plan to fix said problem and then implement that plan. What an unreasonable person would do instead, or what the United States has continued to do when it comes to the transgender criminalization problem, is create sub-par policies with loose definitions, implement said policies, ignore concerns regarding policy ineffectiveness, and continue to implement the policies anyway. When attempting to identify current policies that help solve the injustices experienced by transgender and gender-variant people within the criminal justice system, it would be easier to claim that there are none. However, the U.S. has attempted to address the problem (although not very effectively) and, in certain states, select policies have been created in acknowledgment of the loosely defined federal policies that exist. The remainder of this essay will focus on identifying existing U.S. policies and rating their effectiveness and appropriateness in today’s sociological context. This author will make several federal policy recommendations building on those state policies determined to be most effective: Delaware and the District of Columbia.

What Does Not Work

To start, the United States is notorious for cases of policy incoherence (Taylor, 2007). Amendments and policies exist with generalized outlines and vague, undefined terminology. On one hand, Americans could argue that the vague phrasing of the Second Amendment gives them the right to keep and bear firearms, to keep and display bare arms, or even the right to possess the arms of a bear. On the other hand, the same Americans could also argue that sex classification is based on the genitalia present at birth (the phenotype), the configuration of sex chromosomes (the genotype), pre or post-operation genitalia, self-identified gender orientation, or on binary enforced internal and external characteristic stereotypes. The United States will not do well in terms of policy creation if it cannot even reach a consensus on the basic definitions of the populations it is trying to protect. When a gender-variant person is sentenced to imprisonment they will face uncertainty and inconsistency as to which of the two prison systems they will be sent, male- or female-populated. How is this decision determined and why do anti-discrimination policies not prevent them from being unfairly and unsafely placed in an opposing sex facility? The answer to the first question varies across the U.S.

United States penitentiaries use the genital-based classification system to determine prison facility placement; internal and external characteristics informed by binary standards are a baseline for decision-making (Shah, 2010). For instance, a transwoman (male-to-female) pre-operation would be held in a male prison facility under the genital-based classification system which ignores self-identification of gender and only acknowledges physical sex characteristics. There is the differentiation between pre and post-op trans prisoners that is sometimes acknowledged in state legislature (Faithfull, 2009). However, while this acknowledgment does force officials to consider additional factors in trans identity it still ignores the connotations that come with the ability to achieve post-op status. Typically, post-operation trans individuals will be of higher socioeconomic status due to the expensive nature of gender reassignment surgeries, meaning that pre-op inmates may be subject to genital-based classifications simply because they cannot afford the surgeries required to qualify for state consideration.

The introduction of this classification system and continued use of it is based on two notions: first, that judicial and prison officials need strict guidelines when deciding placement and, second, using male or female characteristics will help expedite the process of incarcerating inmates without incurring the additional costs of time and money required for a more thorough analysis (Faithful, 2009). Of course, while this method may process inmates faster and, while some conservative backers may defend this method by arguing that all inmates, transgender or otherwise, must go through the same process, the nature of the inspections challenge non-discrimination policies that are meant to be upheld by the criminal justice system.

At a baseline, non-discrimination policies in prisons aim to protect prisoners from inequity at the hands of facility staff. However, federal policy created by the Bureau of Prisons still does not include gender identity on the list of communities protected from discrimination. The non-discrimination policy created in 1999 states: “Bureau staff shall not discriminate against inmates based on race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing, and programs” (BOP, 1999, p.2). According to this policy, genital-based classifications are not explicitly considered as grounds for discrimination as all prisoners are subject to sex-based examination upon entry. Liberal voices would surely identify that while every prisoner is subject to the same examination, sex-based examinations perpetuate discriminatory responses to trans prisoners only. An excess in scrutiny delivered to only gender-variant prisoners is discriminatory treatment in and of itself, though sex-based classification policies do well to mask this violation in a non-discrimination policy that does not distinguish between sex and gender (Famer v. Brennan, 1994).

Of course, a limited number of states have clearly defined non-discrimination legislation that includes gender identity and sexual orientation as protected categories within prison populations. For example, Washington State clearly outlines the prohibition of discrimination against individuals based on gender expression of self-identification (ACLU, 2011). While states can determine their own definitions for anti-discrimination policies and how they will classify prisoners upon intake there is still only one U.S. act that must be heeded by all prison facilities regardless of individual state guidelines: the 2003 Prison Rape Elimination Act (National PREA Resource Center, 2018).

United States Congress passed the Prison Rape Elimination Act (PREA) in 2003 in response to the high rate of recorded rapes occurring in prison facilities across the federal, state, and local levels (National PREA Resource Center, 2018). PREA stated in 2009 that the transgender prisoner population was identified as the most at-risk for sexual assault victimization and later developed subsequent national guideline to address the issue in 2012 (Oberholtzer, 2017). At face value, the Act seems to be an ideal policy that is implemented across the U.S., ensuring that transgender prisoners have basic rights of risk screening for possible sexual assault, examinations conducted by licensed medical professionals, separate shower facilities, and staff educated on transgender rights. However, implementation is lacking and accountability is ignored much as is the transgender prisoner population. In theory, PREA would be a very effective mechanism for improving the livelihood of gender-variant prisoners but a consistent critique of the Act is that it is rarely fully implemented by states and many states fail to comply with even the barest of requirements. Audit reports of PREA from 2016-2017 identified that only one state of the 21 examined complied fully with the minimum requirements of the Act; the one state was Pennsylvania. In fact, five states, including Idaho, Texas, Indiana, Utah and Arizona, officially decided to “opt-out” of complying with PREA altogether and paid the fine assigned with compliance failure up front (Boone, 2014). Non-compliance penalties are weak and do little to encourage unwilling states to follow the guidelines. Fines are, in some cases, not mandated if the prison can assure that it is working towards compliance; assurance requires very little evidence of intention or a timeline (Sontag, 2015).

A 2009 study examined the effectiveness of PREA and identified that, in most cases, prison wardens chose not to comply with PREA because they felt that the policies provided by the Act were less effective than staff training and increased inmate supervision (Moster and Jeglic, 2009). The wardens’ lack of faith in the PREA program, in combination with softened sanctions, has led to a limited number of prison facilities implementing the Act as intended. This means that not only are trans inmates, across states, receiving inconsistent access to intended protections, but there is also a failure to acknowledge that they are not provided their full rights (Oberholtzer, 2017). Of the 21 states audited by the PREA compliance standards, all but one failed to meet minimum standards, yet only three facilities failed the audit. This leaves questions about the integrity of the audits that were designed as accountability measures for PREA implementation. If auditors ignore and/or approve prison facilities that do not comply with basic protective guidelines for transgender inmates than how can policymakers judge the effectiveness of the Act when the target population is not fully acknowledged? While one side of the argument may claim that PREA’s existence is enough to combat the problematic treatment of transgender inmates in prison, the other side would note that intention and implementation are two separate things. If the policy is never truly implemented as it was intended, then determining its effectiveness is difficult. It seems that, in the case of the transgender community in the prison system, policymakers are more comfortable giving each state discretion in how to handle the situation, rather than putting forth the resources to do so themselves.

Discretion in the hands of the state, and in some cases even the facilities themselves, can be problematic and counterproductive to U.S. regulations. Even as PREA regulations prohibit the use of administrative segregation (the use of solitary confinement as housing for transgender or gender-variant prisoners), the regulation can still be disregarded if prison staff deem solitary as the only safe place for an inmate at the time (Faithful, 2009). This loophole does not have specific guidelines defining occasions warranting this kind of action. This means that prison staff can use solitary confinement as a means of housing trans prisoners for perceived threat or hazing and, by doing so, successfully dodge federal restrictions banning administrative segregation. Some may argue that this loophole exists to protect trans inmates that face immediate danger and, without the use of solitary, there would be no location within which to contain them. However, it has been found that extended residency in segregation can cause psychological strain on prisoners in this position. When interviewed about her experiences while incarcerated, a transgender prisoner by the name of Robin recounted that she was kept in segregation for a year, because of prison staff’s belief that the other prisoners would not be able to “understand” her identity, which caused feelings of lunacy and suicidal ideation (Sanderson, 1984). Here again is a disconnect between intention and implementation; while this policy is intended to only be used to prevent immediate danger, it is still being used for manageable transgressions and is subject to the personal discretion of staff.

What Works

Unites States discretion capabilities have had some success, despite the number of negative outcomes covered thus far. States can choose to improve on the base laws and regulations, like PREA, and abandon problematic systems, like genital-based classification, to provide legitimate protection for the transgender inmate population. The Delaware Department of Corrections has a policy and practice that does just this; it uses its power of discretion to selectively enforce parts of relevant policies while abridging the problematic sections (State of Delaware DOC, 2016). Delaware’s policy clearly defines the protected transgender population and the way intake processes must address them. There is a reliance on self-identification classifications from transgender offenders that determines how they are further processed throughout the system. Genitalia-based classification systems are forbidden. Though some may critique Delaware’s classification system by suggesting that prisoners could misreport their gender or that the policy is not considering the opinions of the cis-gendered cellmates that will be placed with them, it is posited here that the number of transgender prisoners that would realistically benefit from the change in classification outweighs these hypothetical considerations (Harvard Law Review, 2014). The policy includes a medical professional division that utilizes PREA guidelines to further determine risk factors for gender-variant inmates when interacting with their cis-gendered peers and to make adequate decisions for facility placement that will result in the least amount of harm (State of Delaware DOC, 2016). The policy also outlines strict non-discrimination regulations for prison staff when working with transgender inmates, including the requirement to use inmate-preferred pronouns, to provide adequate treatment and medical services for inmates currently in transition, and to take part in sensitivity training. In its totality, Delaware’s policy provides more rights to transgender inmates than many U.S. states; however, it is not the most inclusive when ensuring trans prisoner populations receive necessary protections. At this point, the closest example of an inclusive policy is provided by the District of Columbia.

The District of Columbia provides perhaps the most progressive transgender inmate protective policy in the U.S. to date (Faithful, 2009). Like Delaware, D.C. redefined the intake and housing process for transgender and gender-variant prisoners. In 2005, the D.C. city council passed the Human Rights Clarification Amendment Act which altered their 1977 Human Rights Act to include gender identity and expression under its non-discrimination law (Council of the District of Columbia, 2006). This alteration came from a 2003 discrepancy when the courts failed to appropriately place a transgender offender in a gender-equal cell block, despite their post-operation status; this resulted in a sexual assault by a male prisoner (Faithful, 2009). Following the amendment, D.C. advocacy groups and law professionals managed to integrate the policy change into the DOC’s procedures in 2009. The new policy tackles many of the problems not addressed or implemented by other state policies that are specific to the security and safety of transgender prisoners. From the beginning, the policy clearly defines terms such as “gender expression,” “intersex,” “sexual orientation,” “transsexual,” and “gender-variant,” leaving no room for potentially harmful interpretations. A clear statement of what falls under the non-discrimination law is also provided and intake procedure requirements are detailed and straightforward. Genitalia-based classification is no longer acceptable under the new policy. In the occasion that an inmate’s physical characteristics and self-identified gender are not the same, a more extensive protocol is required and must be conducted by professional medical staff. Perhaps the most unique aspect of D.C.’s policy is that it addresses access to hormone therapy while incarcerated and establishes a specialized team of professional staff equipped to address the needs of transgendered inmates. Under this policy, transgender inmates are permitted to start hormone therapy if they receive clearance from a medical professional. This is exceptional among U.S. transgender prisoner policies because, while some may allow for the continuation of hormone therapy while incarcerated, it is extremely rare for facilities to permit the introduction of hormone therapy. Some may argue this is due to the potential costs incurred for providing such therapy; the counterargument involves the acknowledgment that hormone therapy allows a prisoner to better reintegrate into a facility housing their gender identity and all prisoners have the right to such securities. The specialized team, or Transgender Committee as it is known, is comprised of a medical practitioner, a mental health clinician, a correctional supervisor, a case manager, and a D.O.C.-approved volunteer knowledgeable in transgender issues (District of Columbia DOC, 2014). The committee decides the transgender inmate’s facility placement after reviewing necessary documentation, conducting personal interviews, and assessing risk factors for placement. Transgender inmates are kept in protective custody until their placement is determined to ensure their personal safety. This policy addresses many of the problems inherent in the federal policies currently in place for transgender prisoners. However, it is still met with some criticism. At the forefront is the fact that the Transgender Committee’s decision is still based on discretion and that documentation and transparency of each decision are needed for further analysis of prisoner placement. Linked to this is the notion that these decisions need to be open for appeal. While the committee aims to make the safest and fairest placement for each gender-variant inmate, the inmate should still have the right to appeal the placement and have access to the evidence and rationale that influenced the committee’s initial decision.

Policy Recommendations and Reform

The criminal justice system does no favors for the transgender population within the United States. Transgender individuals end up in the criminal justice system partially because societal costs are stacked against them. Once convicted, the prison system continues to rack up injustices against them as policies are ignored or based on discriminatory definitions. These policies, intended to aid the struggling transgender prisoner population, lack uniformity and conviction, relying on individual states, or even individual facilities, to decide how much effort will be put into ensuring trans inmate safety and security. Access to information pertaining to the effectiveness of these policies is near non-existent, which is not surprising given that many of these policies have not been fully implemented as intended (Harvard Law Review, 2014). To ensure the transgender population receives the protections it is due, U.S. policies need considerable reform. At the forefront, policy needs to be informed by the fact that the criminalization of the transgender population is due to the mistreatment of the marginalized group by the criminal justice system, placing them at a disadvantage to begin with. In addition, all non-discrimination and human rights policies need to include all forms of gender identity and expression. As mentioned earlier, these terms, as well as any policy procedure and regulations, need to be clearly defined and allow no room for interpretation. Incarceration policies established by the District of Columbia, Delaware, and PREA need to be combined, uniformly followed, and provided by all U.S. prison facilities. One trans prisoner in one state deserves the same coverage of rights that another trans prisoner in another state receives. This includes the right to begin or continue hormone therapy while incarcerated, access to medical professionals and informed staff that will not discriminate against them because of their gender status, the right to have their chosen pronoun used by prison staff, the right to not be placed in solitary confinement at the will of staff for illegitimate assumptions of protections and needs, and to be placed in a facility that does not compromise their safety or security and is not based solely on their genital status. These recommendations ensure that transgendered inmates are allotted the full rights of equal treatment and safety to which cis-gendered inmates are entitled. Should implementation integrity truly be too much of an issue among varying U.S. facilities, then the obvious and more effective option would be to develop a gender-variant prison facility within the United States. This kind of facility would allow prisoners of trans or variant gender to carry out their sentence in the same manner as any of their cis-gendered counterparts, but with adequate medical and professional staff and equipment. It could also lead to a significant decrease in inmate prejudice and discrimination and subsequent violence. Creating a separate facility could eliminate discretionary issues and could provide an accurate analysis of policy effectiveness to further inform future amendments or reforms. There should be no room for gender discrimination in modern society, especially within the criminal justice system, and if such an issue cannot be properly addressed with the poorly implemented current policies, then perhaps it is time to target the flaws within the system and not the marginalized community that it fails to protect.

Conclusion

What may be the biggest take away from the criminal justice system’s response and treatment of transgender individuals is that the gender binary is enforced and uniformly used to make important decisions (Sumner and Jenness, 2014). Prison facilities exist in binary based categories and inmate placement state by state is usually based on binary based genital classification. It creates problems for transgender individuals that they fall outside of binary-based sexual classification system and, thus, are not viewed as “normal.” Not falling within the parameters of the “normal” allows for prison facilities to pass PREA audits without complying with its minimum standards. It also facilitates sexual assault targeting gender-variant inmates trapped within a single-sex prison facility. Lastly, it allows injustices levied at the trans community to “slip through the cracks” in policy creation decisions. Future policy needs to address these issues and it needs to be fully implemented and enforced. Policy makers and political officials need to acknowledge and actively work to fix the injustices served to the transgender population in the United States and create gender-variant prison facilities within which the gender-variant communities can exist in safely.

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