The Justice Department, under pressure from advocates, has issued a memorandum reasserting its policy that transgender prisoners cannot be housed according to their anatomy alone but must be assigned to facilities on a case-by-case basis, with the inmate’s own sense of where he or she would be safest “given serious consideration.”
While the clarification, which applies to federal and state prisons, underscores existing standards, advocates say they often seem to be ignored, and the Justice Department has done little to enforce them. The department had no immediate comment.
The original rules, under the Prison Rape Elimination Act, or PREA, were issued in 2012, but “it’s almost as though no one read it,” says Harper Jean Tobin of the National Center for Transgender Equality. Tobin and other advocates pushed for this clarification as “a reminder that in many cases officials didn’t hear and didn’t get the first time.”
The vast majority of transgender prisoners continue to be housed according to their gender at birth — trans women housed with men, trans men housed with women.
While this is not explicitly forbidden — inmates can be housed according to their biology, as long as the decision was made using other factors as well — the fact that it is so uniformly true is a “red flag,” Tobin says. One study, by the University of California-Irvine, found that 35 percent of transgender female inmates in California would prefer to be housed in a women’s facility. Yet only three trans women — all post-operative — are currently being held in women’s facilities, according to Terry Thornton, spokeswoman for the state corrections department. “Housing offenders is very complex, and pre-operative transgender inmates are where they are based on a host of case factors,” Thornton says. “We do not look solely at anatomy.”
The Bureau of Justice Statistics found that more than a third of transgender prisoners had been sexually assaulted in the past year, a rate more than eight times as high as among state prisoners generally. (The UC-Irvine researchers found rates as high as 60 percent.)
“We’re surrounded by men — real men — with short fuses,” a transgender prisoner told a researcher, Valerie Jenness. “Here they are…and they don’t have women, even women they can buy. We’re the best they got, and they hate that.”
Even states whose official policy reflects PREA’s rules rarely follow them in practice, advocates say. In Colorado, for example, where regulations say that decisions are made on a case-by-case basis, a corrections department spokeswoman, Adrienne Jacobson, told Westword last year that in general inmates are housed “in accordance with their natal gender, as determined by their external genitalia.”
Chris Daley of Just Detention International, one of the groups that pushed for the clarification, which was issued last week, says “there seems to be some kind of initial buy-in at the leadership level, but then largely it’s left up to supervisorial or front-line staff to implement it.”
Adherence to PREA is essentially voluntary. States that decline to comply with its rules risk losing only 5 percent of the prison funding they receive from DOJ — and even states that don’t follow the rules can keep the money by providing an “assurance” that eventually they will comply. Still, by last year 46 states and the District of Columbia had made a commitment to follow PREA, which means submitting to audits of their prisons.
Even in states whose practices clearly violate PREA’s transgender housing standard, facilities consistently pass their audits.
For example, a transgender woman named Passion Star has been housed only in men’s facilities during the 12 years she has spent in Texas prisons, despite repeated written requests that she be moved for safety reasons. In a lawsuit, Star details numerous times she has been raped, sexually assaulted, and beaten because she is transgender. A judge in her case recently noted that at one of the prisons where Star has been housed, “there seems to be considerable sentiment that when you’re gay, you can’t be raped.”
Will this clarification make a difference where the earlier rules did not? That depends on whether auditors begin enforcing it — and whether a rule on paper can effectively translate into a culture change on the ground.
This article has been updated to further explain California policy on housing transgender inmates.