he transgender prison crisis is part of a larger pattern of violence and discrimination in U.S. society that disproportionately affects people of color, poor people and transgender and gendernonconforming (TGNC) people. “Over-policing and profiling of low-income people and of trans and gender-nonconforming people intersect,” as the Sylvia Rivera Law Project (SRLP) describes it, “producing a far higher risk than average of imprisonment, police harassment and violence for low-income trans people.”
Violence against TGNC people tends to be worse in places that are separated by sex such as county jails, immigration facilities and prisons. In the United States, transgender incarcerated people are still usually housed according to the sex assigned at birth, instead of by gender identity—one’s inner sense of being male, female or something else. This policy makes transgender people more vulnerable to harassment or attack by staff or fellow incarcerated people: A California study found that transgender people were 13 times more likely to be sexually assaulted than non-transgender people in prison.
U.S. prison officials also commonly block the access of incarcerated people to transition-related health care such as hormone therapy or sex reassignment surgery (SRS), even when it’s prescribed as medically necessary by a doctor.
The TGNC prison crisis has been attracting public concern thanks to the continued efforts of organizations such as SRLP and Transgender Gender Variant Intersex Justice (TGIJP). The result has been a series of major policy shifts and important legal precedents.
Among these is the federal Prison Rape Elimination Act (PREA), passed unanimously in 2003, which in 2012 established long-demanded national standards for preventing, detecting and reporting prison rape. A new federal policy on transgender health care is now in effect as well. In the courts, incarcerated people have repeatedly found recourse since the 1994 Supreme Court decision Farmer v. Brennan, which provides precedent for transgender people to argue that the failure to protect them from sexual abuse and other violence, and the failure to provide transition-related health care is cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution.
These promising legal developments don’t change the fact that conditions for TGNC people behind bars remain discriminatory and dangerous. While PREA carries potential financial penalties for prison systems that do not comply, it does allow incarcerated people to file a lawsuit in court for violations of its provisions. Enforcement and education are an uphill climb.
If you or someone you know has experienced assault, discrimination, forced isolation or denial of health care while in detention of any kind, contact Lambda Legal’s Help Desk at 866-542-8336 or www.lambdalegal.org/help.