WARNING: Safety Not Guaranteed

Transgender inmates face discrimination and mistreatment by fellow inmates and prison officials.

Photo by Josh Rushing (Flickr)

Transgender individuals in America face a great deal of discrimination every day.  According to the National Center for Transgender Equality (PDF), “[T]ransgender and gender non-conforming people bear the brunt of social and economic marginalization due to discrimination based on their gender identity or expression.”  Part of the problem is that many people do not fully understand what it means to be “transgender,” their exposure to the community limited to media stories of discrimination and tragic suicides.  With so much attention devoted to the negative events, public awareness of general transgender issues is woefully lacking.

“Gender identity” is an individual’s “internal, personal sense of being a man or a woman.”  A transgender individual has a gender identity that is different from the sex that he or she was assigned at birth.  LGBT advocates like Laverne Cox have increased general awareness and acceptance of transgender people.  However, as with any social movement, there is a long ways to go before discrimination is meaningfully reduced.

Nearly one in six transgender people have been incarcerated at some point in their lives, a very high rate compared to that of the general population.

Discrimination is especially prevalent in the prison system of the United States.  According to recent statistics (PDF), nearly one in six transgender people have been incarcerated at some point in their lives, a very high rate compared to that of the general population.  Factors that contribute to this high level of incarceration include disproportionate poverty, homelessness, discrimination, participation in street economies, and in some cases, law enforcement bias.  Additionally, a California study (PDF) reports that transgender individuals are thirteen times more likely than any other prisoners to be victims of prison rape.

Two transgender prisoners recently filed lawsuits against prisons in which they have served time.  On October 23, 2014, Lambda Legal filed a federal lawsuit on behalf of Passion Star, a transgender inmate in Texas.  Many parties are named as defendants, including prison officials, wardens, and Texas Department of Criminal Justice Executive Director Brad Livingston.  According to the complaint, Ms. Star was brutally attacked by male inmates and continues to be tormented.  She says that prison officials responded to her problem with deliberate indifference and repeatedly refused to place her in secure housing.  Ms. Star also alleges that the Texas Department of Criminal Justice has failed to adopt and train officers on policies and procedures to protect its lesbian, gay, bisexual, transgender, and gender-nonconforming inmates.

On January 5, 2015, LeslieAnn Manning, a transgender woman housed in a male facility in New York, sued Sullivan Correctional Facility officials for violations of her constitutional rights.  Ms. Manning says that in 2013, a fellow prisoner raped her and threatened her life if she ever told.  She alleges that the prison failed to adequately protect her from rape because of the existence of several factors that should have alerted officials to her heightened risk of sexual assault.

The Supreme Court forbade the use of excessive physical force against prisoners and held that prison officials have a duty to protect prisoners from serious injury.

The right to be free from harm and discrimination in prison is derived from three sources (PDF): the U.S. Constitution, federal statutory law, and state law.  First and foremost, the Eighth Amendment guarantees that an individual shall be free from “cruel and unusual punishment.”  In 1994, the United States Supreme Court held that the Eighth Amendment applies to certain actions by prison officials.  The case, Farmer v. Brennan, was initiated by a transgender woman in a federal prison in Indiana.  The Court forbade the use of excessive physical force against prisoners and held that prison officials have a duty to protect prisoners from serious injury.  In order to prove a violation of this duty, a prisoner must show that the prison official acted with a sufficiently culpable state of mind and that the prisoner was injured or exposed to a substantial risk of serious injury as a result.  There must be evidence to show that the official knew or should have known that the prisoner was at a substantial risk of serious injury and failed to act reasonably to avoid it.

In 2003, Congress passed the Prison Rape Elimination Act (PDF) (“PREA,” or “the Act”) in response to high incidents of sexual assault in prisons.  PREA calls for the collection of statistics of sexual assaults occurring in prisons, offers guidelines for addressing prison rape, creates a review panel, and provides states with grants to remedy the problem.  The Act was intended to eliminate prison rape by increasing facility supervision, training officers about sexual assault issues, limiting cross-gender inmate searches by prison officials, and requiring special care to vulnerable prisoners like Manning and Star.  PREA violators risk losing five percent of federal grants from the Department of Justice.

Unfortunately, the Act was not implemented until 2012, prison facilities were not audited until August 2013, and the penalty only applies to state-run prisons.  Furthermore, several states, including Idaho, Texas, and Arizona, have publicly refused to comply with PREA.  Additionally, even if a state complies, federal guidelines are murky at best.  In order to “ensure the inmate’s health and safety,” PREA requires prisons to assess transgender prisoner housing arrangements on a case-by-case basis that accounts for the inmate’s subjective view of his or her own safety.  This unclear standard leaves prison officials room to “justify their decisions however they choose,” according to ACLU staff attorney Chase Strangio.

State-level statutory protection of inmates varies.  The tort laws of some proactive states, like New York, protect prisoners from sexual assault by prison officials.  Additionally, in Giraldo v. California Dept. of Corrections and Rehabilitations, a state appellate court recognized the right of transgender prisoners to be protected from rape and assault by other prisoners.  The unfortunate reality, though, is that many states do not provide such protections.

The prison system itself offers several (albeit imperfect) options to ensure the safety of its prisoners.

With so few remedies available, preventative measures are key for the protection of transgender inmates.  The prison system itself offers several (albeit imperfect) options to ensure the safety of its prisoners.  One such measure is protective custody, which is similar to solitary confinement.  Inmate housing is generally assigned by sex, so individuals like Star and Manning are kept in male facilities simply because they were born “male.”  This creates an increased risk of sexual assault, especially for transgender women in male facilities.  Protective custody seeks to combat that risk by removing transgender inmates from the general population.  The problem with this option is that it leaves those prisoners locked up alone for the majority of the day and does not guarantee protection.

A second option is to create specific units exclusively for transgender women and gay men, commonly known as “GBT pods.”  The Los Angeles Central Jail has designated a “gay wing” with much success.  However, the L.A. community is much different than other parts of the country.  The city’s culture is much more accepting of transgender issues, which contributes to the success of the prison’s “gay wing.”  GBT pods in other prisons and other parts of the country have not been as successful.  Moreover, GBT pods come with their own risks, including increased discrimination by prison officials and a lower likelihood that the prison will adopt better policies to ensure inmate safety outside of the pod.

Whether grounded in the Eighth Amendment, PREA, or state tort law, transgender inmates in our nation’s prisons have a right to be safe from discrimination and sexual assault.  Prison officials must take all steps necessary to ensure the safety of transgender prisoners like Ms. Star and Ms. Manning.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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