Beaten, subjected to illegal strip searches, denied prescribed medication, and placed into involuntary protective custody (a.k.a. solitary confinement), 23-year-old Makyyla Holland spent six agonizing weeks in Broom County Jail. [i] Why was a 23-year-old woman subjected to this treatment in a New York State jail? She is transgender.

          In the wake of “Don’t Say Gay” bills, anti-trans legislation, and amid ever-increasing attacks on human rights, attention must be directed towards the plight of incarcerated people in the United States. Especially the plight of marginalized communities in prisons. The U.S. carceral system disproportionately impacts marginalized communities, including transgender folks. Incarcerated transgender people are continuously at risk of serious harm within U.S. prison systems.[ii]

Under the current system, once a trans person is incarcerated, they are typically assigned to a housing facility based on their gender assigned at birth.[iii] Despite being disproportionately at risk for sexual assault and harassment while incarcerated after the initial housing assignment, incarcerated transgender people rarely receive approval to be transferred to appropriate housing i.e. housing that aligns with their gender.[iv] State and Federal governments refusing to assign or transfer transgender detainees to an appropriate facility only increases the likelihood the person will be victimized.[v]

          Present arguments against properly housing incarcerated transgender people in correctional facilities that align with their gender center around protecting mostly incarcerated cis-women (people whose gender aligns with their gender assigned at birth) from victimization.[vi] Unfortunately, there have been a few cases in which, after a transgender detainee was transferred, the detainee victimized another inmate.[vii] Although these cases are rare, they are used to spread misinformation and stoke transphobic public and political opinion.[viii]

          All prisoners should be equally protected from victimization, including incarcerated transgender people. According to data collected under the Prison Rape Elimination Act in 2015, 35% of transgender detainees reported experiencing one or more incidents of sexual victimization by another inmate.[ix] Of the transgender detainees who reported sexual victimization, 72% experienced physical force or the threat of physical force.[x]

         Transgender folks should have the same confidence in equal protection privileges afforded under the U.S. constitution as cisgender people, regardless of whether they are incarcerated. Unfortunately, current law in the U.S. affords incarcerated transgender people limited protection and very few avenues to seek relief when their constitutional rights are violated. Federally, the Bureau of Prisons (BOP) has taken some measures to ensure incarcerated transgender folks are protected as required by law, but unfortunately, these measures are not very successful. State protections, if they exist, vary wildly.

 

Limited Protections Available to Trans Detainees in the U.S.

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          In the United States, legislation has been passed to protect incarcerated people, and they have a right to raise claims of constitutional violations. However, the current laws are inefficient in affording protection and create near-impossible hurdles for incarcerated folks. The Prison Rape Elimination Act (PREA), approved by Congress in 2003, was passed as a protective measure for vulnerable incarcerated populations.[xi]

         The primary purpose of PREA is to address sexual assault and harassment in prisons nationwide in the U.S.[xii] The PREA Standards, federal guidelines prisons should follow, were issued ten years after PREA was passed.[xiii] Although PREA is a federal law, States can independently determine whether state prisons will follow the regulations.[xiv] Unfortunately, few have decided not to, meaning some State prisons do not have to comply with federal standards implemented under PREA and with very few consequences.[xv]

         The PREA standards do include specific protections for transgender detainees. They specifically include a screening that should be conducted within 72 hours of a detainee’s admission into a carceral facility. The screening assesses a detainee’s risk for sexual victimization or abuse. In addition, it accounts for whether the incarcerated individual identifies as or is perceived to be lesbian, gay, bisexual, transgender, or gender non-conforming.[xvi] The primary purpose of the PREA screening is to prioritize protecting all vulnerable people.[xvii]

          Despite its efforts, PREA provides correctional staff complete discretion to determine a detainee’s gender or sexual orientation. The subjective standard is antithetical to PREA’s primary purpose, the safety of incarcerated people, and removes the right of individuals to identify as the gender they align with most. Further, it is unlikely that correctional staff are qualified to properly give an assessment under the PREA guidelines and lack the proper training or education to make these determinations.

           The PREA standards are meant to protect incarcerated transgender folks and other likely vulnerable populations in U.S. prison systems, but they only establish basic guidelines and lack enforcement power. The only consequences for violating PREA are a potential loss of prison accreditation and/or a portion of federal funding for the correctional facility.[xviii] Federal facilities are required to follow PREA but risk the same consequences as the States; they are not held to a higher standard of compliance in any way. PREA does not allow incarcerated people to sue prisons or any correctional officials for violating the statute. Violations of PREA can only be useful to bolster a claim that an incarcerated person’s constitutional rights have been violated.[xix]

 

Scant Constitutional Protections for Incarcerated People

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           Eighth amendment claims have successfully protected transgender detainees, mostly regarding medical care and treatment. First, however, the claims must make it past the preliminary stages of litigation. Typically, most courts usually reject transgender detainees' eighth amendment claims on the ground that prison officials had not acted with “subjective deliberate indifference.” [xx]

Another but even less successful constitutional claim available to incarcerated transgender people falls under the fourteenth amendment. Specifically, the equal protection clause prohibits a State or government from denying any person the equal protection of the laws.[xxi] The equal protection clause applies to “sex” based discrimination. Courts, however, are split on whether transgender detainees’ claims are the same as “sex” based discrimination claims. Some courts have held that transgender detainees’ equal protection claims are equivalent to “sex” based discrimination claims.[xxii] Other courts, unfortunately, have considered transgender detainees’ claims as distinct from “sex” based discrimination claims. These courts consider incarcerated transgender people as “quasi-suspect class” under the equal protection clause and say the cases should be analyzed under intermediate scrutiny.[xxiii]

          To prevail under the fourteenth amendment, an incarcerated transgender person must bring an equal protection claim under 42 U.S.C §1983. Section 1983, a federal statute, allows incarcerated folks to take civil legal action when deprived of their constitutional rights. A transgender detainee’s section 1983 claim, however, rarely makes it past the pre-trial stage.[xxiv] A transgender detainee must exhaust all administrative remedies available within the correctional facility before filing a section 1983 claim established in the Prison Litigation Reform Act (Passed by Congress in 1996).

Suppose an incarcerated transgender person exhausts all administrative remedies available to them, which can take years. In that case, they must then prove the prison, or its staff, acted with an intent or purpose to discriminate against them. Contrary to how it sounds, trying to prove a prison or staff intentionally or purposefully discriminated against them is nearly impossible.[xxv] As part of a fourteenth amendment claim, an incarcerated transgender person must also show that similarly situated persons outside the protected class (cis-gender prisoners) were treated differently. Yet another nearly impossible component to prove within prison conditions.

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Bureau of Prison’s Current Policies in Federal Prisons

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          Federal prisons must follow PREA standards, but that has not changed the conditions for transgender detainees. The Bureau of Prisons (BOP) publishes the Transgender Offender Manual. The primary purpose of the manual is to provide guidelines to prison staff regarding transgender detainees and the many risks they face while incarcerated.

          The BOP also established and outlined the duties of the Transgender Executive Counsel (TEC) within the manual. [xxvi] The TEC is the BOP’s official decision-making body regarding all issues affecting incarcerated transgender folks.[xxvii] The TEC is supposed to consider a set of factors that follow PREA standards to ensure the transgender detainee’s health and safety when making all decisions, including housing determinations. The factors include the transgender detainee's security level; criminal history; previous behavioral and/or disciplinary history; current gender expression; all medical information and needs; mental health; the detainee’s likelihood of victimization, and/or their likelihood of perpetrating abuse. [xxviii] Lastly, the TEC should also give “serious consideration” to the transgender detainee’s safety concerns, especially when determining their housing assignment.[xxix]

 

Major Critiques: Transgender Offender Manual and the TEC

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          The Transgender Manual appears to be a step in the right direction; however, it is lacking in several ways. Most significantly, the manual does not outline clear decision-making protocols despite designating a great deal of decision-making power to the TEC. It outlines what factors to consider but does not require the TEC to record or memorialize their meetings. The manual also provides no mechanism for incarcerated people to request information about the TEC’s decision or provide an appeal process. Essentially, all decisions made by the TEC occur in a black box. An incarcerated person’s case is referred, a meeting is held, and a decision is made. The TEC is an administrative body, yet there is no transparency or way to hold them accountable to the BOP’s policies. Frankly, there is no way to ensure they are not violating incarcerated peoples’ constitutional rights.

Another issue is that the manual does not require the TEC to collect or publish data related to transgender detainees and their decisions. Collecting and publishing data is an important accountability tool. It is possible that the TEC already collects data, but that information is not publicly available. A few important data points to collect include 1. The total number of transgender detainees in facilities that do not align with their gender 2. The total number living in facilities that do 3. The total number of transgender detainees assigned to their preferred gender facility at intake 4. The number assigned to a facility based on their gender assigned at birth 5. The number of transgender detainees who submit a transfer request to the TEC, and 6. The number of requests the TEC grants or denies.

          These data points are not an exhaustive list of important information that should be collected and publicly published. Without proper data, it is impossible to know whether the TEC or BOP’s policies are effective and protect incarcerated transgender people. A recent decision from the Southern District of New York illustrates the shortcomings of the Transgender Offender Manual, the TEC, and the law.

Case Study: JJS v. Pliler

          September 13, 2017, July Justine Shelby (JJS) pled guilty to another felony charge and was sentenced to a 15-year mandatory minimum with ten years of supervised release.[xxx] The sentencing judge recommended she be designated to a female facility, but instead, JJS was immediately housed in a men’s prison. [xxxi] Before September 2017, JJS’ license and birth certificate stated her gender as female. Since her reincarceration in 2017, JJS has only been housed in men’s prisons and was repeatedly subjected to harassment by correctional staff. [xxxii] She was also sexually assaulted more than once by prisoners and prison staff. JJS even filed a PREA report for one of her assaults.[xxxiii] Despite dealing with these conditions, JJS continually advocated to receive gender-affirming care and continuously filed requests to transfer to a women’s facility.[xxxiv]

          The Transgender Executive Council met six times beginning October 2017 regarding JJS’s transfer requests. Each TEC decision was a denial, and each decision was given orally to the warden with minimal explanation.[xxxv] On two separate applications for transfer, JJS had received glowing recommendations from the warden and her BOP psychologist. However, JJS’ psychologist later reported during a federal civil action that the TEC did not contact them once before determining whether JJS should be transferred.[xxxvi] JJS received her last denial in early 2022 and finally sought legal action. Fortunately, on November 1, 2022, the Southern District of New York issued a decision requiring that BOP transfer JJS to a women’s facility. [xxxvii] 

​

         “The overwhelming evidence suggests that BOP’s decision to deny Petitioner a transfer to a women’s facility is based on bias and fear, not evidence. It is not reasonably related to the legitimate penological interest of protecting prisoners. The factors that the TEC is required to consider under the 2022 TEC Manual support [JJS’] transfer, as does the evidence submitted by BOP staff, including three different wardens [.] . . . Accordingly, I conclude that the denial of [JJS’] transfer cannot be excused as an appropriate exercise of BOP’s discretion.” [xxxviii]
 

          JJS’s experience clearly illustrates how the law and BOP policies fail to properly protect transgender detainees. It took six years before JJS was able to legally seek relief. The TEC’s decisions are part of an administrative process within the BOP, but JJS could not appeal or request a record of their decisions. Unfortunately, as JJS was forced to wait through 6 transfer denials, she was not protected by PREA, despite filing a report, and unfortunately, victimized while incarcerated. Unfortunately, JJS’ experience is not rare and is just one of many transgender detainee experiences that exemplifies why the current laws and policies are not enough.

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Current Transgender Advocacy Work

 

          Fortunately, there are organizations fighting for the rights of incarcerated transgender people. Many non-profit organizations, like the American Civil Liberties Union, are tackling current transphobic political campaigns and supporting transgender folks. However, advocacy centered specifically around the rights of incarcerated transgender folks largely appears in the form of litigation. For example, Makyyla Holland sued Broome County and Broom County Jail with the New York Civil Liberties Union, The Transgender Legal Defense and Education Fund, and Paul Weiss, LLP. [xxxix] Thankfully, there are dedicated organizations litigating on behalf of transgender prisoners nationwide to hold State and Federal governments accountable for violations of their constitutional rights.

          An organization called Gender Justice is dedicated to this issue and other gender-based issues. The organization focuses on " dismantling the legal, political, and structural barriers to gender equity.” [xl] To achieve their goal, Gender Justice builds partnerships and coalitions, advocates policies for gender equality, educates the public, and, most importantly, utilizes courts for strategic impact litigation.[xli] Gender Justice is actively litigating a case on behalf of an incarcerated transgender person in Minnesota. The complaint filed in Lusk v. Minnesota, Department of Corrections, lists multiple state law violations and makes both 8th and 14th amendment claims.[xlii]  

 

A Feasible Solution for the United States: Separate Voluntary Housing

 

           Mass incarceration is, unfortunately, a well-versed topic in the United States. It has been made clear that the U.S. prison system needs to be abolished and replaced, ideally, with community-based services that address needs and help build stability. Abolishing the prison system, however, is not likely to occur soon. As a result, incarcerated populations, like transgender folks, will continue to be disproportionately harmed. Nevertheless, a possible and feasible solution exists: to provide a third voluntary housing option.

           The United Kingdom, Italy, France, and the United States have already tried to create alternative housing solutions for incarcerated transgender people and LGBTQIA+ folks.[xliii] Recently, Europe has had minor success in developing separate housing for transgender detainees and LGBTQIA+ inmates. It is important to note most European countries are dealing with a much smaller prison population than the U.S. [xliv]. Nonetheless, a separate non-solitary and voluntary housing unit is more than feasible for the United States.[xlv]

           The U.S. has separated transgender detainees and LGBTQIA+ prisoners into separate housing facilities on a few occasions. Still, at least one of those attempts was not precipitated by an intention to protect incarcerated people. For example, a women’s prison, Fluvanna Correctional Center in Virginia, came under intense criticism for its segregation practices in 2009.[xlvi] Guards at Fluvanna forcefully segregated incarcerated folks who appeared to be gay to prevent sexual activity. In addition, guards would separate individuals into the unit if the guards thought the individual appeared masculine, if they wore loose clothes, or had short hair.[xlvii]

Designation into the unit was involuntary; incarcerated people lost vocational and educational opportunities, were subject to harsher punishments, and experienced verbal harassment based on their gender expression.[xlviii] Fluvanna’s segregated unit is no longer in operation. It should only serve as a warning regarding the possible creation of a third housing option for LGBTQIA+ prisoners.[xlix]

           Another slightly more successful attempt at alternative housing is in California. The Los Angeles County Jail has segregated gay men and trans women into a special unit within the male jail since 1985.[l] The K6G unit was created to protect gay men and transgender folks from harm. K6G has been praised for prioritizing the safety of incarcerated people, and newer reports show a positive community dynamic.[li] The unit, however, has also been criticized for its conditions and not being safe for incarcerated folks as it purports.[lii] Another important note is that incarcerated people are not always placed in the unit voluntarily. If a guard determines that an incoming person “looks gay or transgender,” they assign them to K6G without the person’s consent.[liii]

          Despite prior attempts, creating a separate voluntary housing unit for transgender people and other LGBTQIA+ folks within male and female prisons is a feasible temporary solution. The U.S. has already proven it is possible and, with the right guidance, could prove to be more protective than current policies. A separate housing unit would only work with strict requirements recommended by transgender folks and other LGBTQIA+ people. Separation into the housing unit must exclusively be voluntary. It should not, and cannot, rely on determinations made by prison staff’s perception of a person's identity or sexual orientation. Requiring voluntary self-assignment to the unit would give transgender people the autonomy and dignity they deserve.

 

Conclusion

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           Currently, there are about 4,980 incarcerated transgender people in the U.S. Prison System.[liv] Yet, only 15 transgender detainees in eight states live in a correctional facility that aligns with their gender.[lv] That means an overwhelming number of transgender folks are repeatedly faced with serious harm because current laws and policies fail to protect them. Continuing advocacy for the rights of incarcerated transgender folks should center and be led by previously incarcerated and/or currently incarcerated transgender people. Refusing to acknowledge the plight of incarcerated transgender people is to remain complicit while the government continuously violates their human rights. The United States needs to do more and can do more by creating alternative solutions that ensure the safety of all prisoners.

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ENDNOTES

[i] Ally Bohm, Bobby Hodgens, Three Trans Women’s Stories Illustrate a Wider Problem, NYCLU (April 1, 2022), https://www.nyclu.org/en/news/three-trans-womens-stories-illustrate-wider-problem

[ii] Jessica Szuminski, Behind the Binary Bars: A Critique of Prison Placement Policies for Transgender, Non-Binary, and Gender Non-Conforming Prisoners, 105 Minn. L. Rev. 477, 494 (2020)

[iii] Id. at 491.

[iv] Id.

[v] Id. at 494, 495.

[vi] Kate Sosin, Trans, imprisoned—and trapped, NBC News (Feb. 26, 2020), https://www.nbcnews.com/feature/ nbc-out/transgender-women-are-nearly-always-incarcerated-men-s-putting-many-n1142436

[vii] Id.

[viii] Id.

[ix] Allen J. Beck, Bureau of Justice Statistics, PREA Data Collection Activities, 2015, 248824 Bureau of Justice Statistics (June 25, 2015)

[x] Id.

[xi] American Civil Liberties Union, (Dec. 16, 2022) https://www.aclu-or.org/en/know-your-rights/laws-court-decisions-advocacy-tips-protect-transgender-prisoners

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id. at 378

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] U.S. Department of Justice, Federal Bureau of Prisons, Transgender Offender Manual (2022) at 1.

[xxvii] Id. at 4.

[xxviii] Id.

[xxix] Id. at 5.

[xxx] Id.

[xxxi] Id. at 7.

[xxxii] Id at 7-13.

[xxxiii] Id.

[xxxiv] Id.

[xxxv] Id. at 13,14.

[xxxvi] Id.

[xxxvii] Shelby v. Petrucci, No. 19-CV-2020 (VSB), 2022 WL 16575766, (S.D.N.Y. Nov. 1, 2022)

[xxxviii] JJS v. Pliler (S.D.N.Y. Aug. 3, 2022) at 21.

[xxxix] Ally Bohm, Bobby Hodgens, Three Trans Women’s Stories Illustrate a Wider Problem, NYCLU (April 1, 2022), https://www.nyclu.org/en/news/three-trans-womens-stories-illustrate-wider-problem

[xl] Gender Justice, (Dec. 17, 2022) https://www.genderjustice.us/our-work/?category=strategic-impact-litigation

[xli] Gender Justice, (Dec. 16, 2022) https://www.genderjustice.us/work/lusk-v-doc/

[xlii] Id.

[xliii] Jessica Szuminski, Behind the Binary Bars: A Critique of Prison Placement Policies for Transgender, Non-Binary, and Gender Non-Conforming Prisoners, 105 Minn. L. Rev. 477, 516 (2020)

[xliv] Id.

[xlv] Id.

[xlvi] Jessica Szuminski, Behind the Binary Bars: A Critique of Prison Placement Policies for Transgender, Non-Binary, and Gender Non-Conforming Prisoners, 105 Minn. L. Rev. 477, 501 (2020)

[xlvii] Id.

[xlviii] Id.

[xlix] Id.

[l] Stephanie Saran Rudolph, A Comparative Analysis of the Treatment of Transgender Prisoners: What the United States Can Learn from Canada and the United Kingdom, 35 Emory Int'l L. Rev. 95, 113 (2021)

[li] Id.

[lii] Id.

[liii] Id.

[liv] Kate Sosin, Trans, imprisoned—and trapped, NBC News (Feb. 26, 2020), https://www.nbcnews.com/feature/ nbc-out/transgender-women-are-nearly-always-incarcerated-men-s-putting-many-n1142436

[lv] Id.            

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