Should birth sex trump
declared gender in prison?
Q: Should prisoner placement be based on biological sex rather than
identified gender?
By Sarah Sidlow
When a transgender inmate enters prison housing, should they be housed according to their biological sex, or the gender by which they identify?
According to Obama-era legislation, prison housing, like the use of public restrooms, should be determined by a person’s identified gender.
But President Donald Trump—on a roll to reverse a number of his predecessor’s legislative decisions—says otherwise.
According to a recent announcement by the U.S. Bureau of prisons, an inmate’s biological sex will now be used to determine where transgender prisoners are housed.
Why now?
Because four women being held at a Texas detention center have filed a federal lawsuit arguing that the Obama decision (introduced just days before the 44th president left office) leaves them at greater risk of rape, because they might have to share facilities with transgender women.
Those who support Trump’s reversal—who believe prisoners should be separated by biological sex—argue that prison is just a tough place full of tough people, and that the nuances of human sexuality are increasingly difficult to navigate within its walls.
Some point to the same argument that has been used to oppose trans people from using the bathrooms that coincide with their identities—that is, who can say for sure that a twisted fox isn’t trying to get into the henhouse?
Nancy Ayers, a spokesperson for the Bureau of Prisons reportedly told BuzzFeed News that the new policy takes into account the needs of all federal prisoners “and articulates the balance of safety needs of transgender inmates as well as other inmates.”
Prison blues
Others argue this is just the latest blow to transgender rights and understanding, and simply highlights the administration’s willingness to put the safety of non-trans prisoners above that of transgender individuals.
Reports indicate that transgender prisoners are some of the most likely to face physical, emotional and sexual abuse in prison, leading some to argue that rolling back the pre-existing protections for trans prisoners in this way doesn’t do anything to improve the safety of prison systems overall, but merely shifts the danger from one group of people to another.
A 2016 report from the Movement Advancement Project and the Center for American Progress reported that compared to the 1.2 percent of heterosexual inmates report sexual assault by other inmates in prison and jails, 24.1 percent of trans inmates report at least one sexual assault.
Underlying the discussion is the Trump administration’s vocal opposition to transgender rights, including its recent attempt to ban transgender people from serving in
the military.
Q: Should prisoner placement be based on biological sex rather than
identified gender?
Where to be housed in the
big house
Finding a place for violators of the
social contract
By Marla Boone
Transgender (adjective): denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex. Transvestite (noun): a person who derives pleasure from dressing in clothes usually associated with the opposite sex. Transsexual (noun): a person who strongly identifies with the opposite gender so much so that they seek medical/surgical intervention to attain the physical characteristics of that opposite gender. Social contract (noun): an implicit agreement among the members of a society to cooperate for social benefits, for example by sacrificing some individual freedom for state protection. (Thomas Hobbes, John Locke, and Jean-Jacques Rousseau subscribed to the theory of a social contract as a means of explaining the origin of government and the obligations of citizens.)
Talk about a lose/lose proposition—how should transgender prisoners be housed? By gender identification or by biological identification? My original response was, “Wherever they will be assaulted less.” After thinking about this for some time, I settled uneasily on the side of biological identification. It’s a case of trying to do good by doing the right thing for the largest number of people even if the “good” isn’t very good.
In 2013, the Williams Institute at the UCLA School of Law estimated there were 700,000 transgender adults in the United States. By last year, it had doubled the number to 1.4 million. That transgender community has been in the news a lot lately, due largely to recent government action. One of the most disturbing aspects of my argument is that I find myself, for the first time ever, agreeing with something the country’s president did. On May 12, Mr. Trump reversed yet another one of his predecessor’s actions, decreeing that now an inmate’s biological sex will be used to make the initial decision as to where transgender prisoners are housed, instead of the gender by which they identify. To make a determination about placement, a Transgender Executive Council can consider the inmate’s health and safety, the inmate’s history of behavior, and the security of the institution and its inmates. According to the revisions, an inmate may also be assigned to a facility based on their self-identified gender if “there has been significant progress towards transition as demonstrated by medical and mental health history.” Prison wardens are permitted to recommend transferring an inmate based on their identified gender as well.
The reversal came about in part because Donald Trump seems bent upon undoing everything Barak Obama did, just because it was Obama who did it and in part due to a lawsuit brought by four female Texas prison inmates. These women contend the previous prison guidelines, which allowed transgenders to be placed according to their gender identity, put them at greater risk of rape because they might have to share facilities with transgender women. Following the changes made on the twelfth, prison authorities are now instructed to consider the health and safety of transgender inmates, as well as “whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution.” Following up, Nancy Ayers, a spokeswoman for the Bureau of Prisoners, said the new policy views the needs of all federal prisoners “and articulates the balance of safety needs of transgender inmates as well as other inmates.”
The statistics for sexual assault in prisons and jails are dismal. A study conducted by the Bureau of Justice Statistics shows 4% of federal and state prison inmates have been assaulted by either fellow inmates or by staff. 3.2% of local jail inmates have suffered a similar fate. The numbers for transgender inmates are far worse, by a factor of up to seven. This study was carried out when transgender prisoners were housed as they requested. Obviously, this particular construct did not eliminate the threat
from predators.
For their own safety, transgender as well as homosexual prisoners are sometimes placed in administrative segregation or protective custody. Biases among prison officials and a misperception among many guards about sexual orientation and/or identification mean access to such custody is not always easy or available. Another problem is that protective and disciplinary custody are often the same, which means that prisoners in “protective housing” are often held with the most violent inmates in highly restrictive and isolated settings—sometimes in more or less permanent lockdown or solitary confinement.
But first and foremost, no one deserves to be raped. Period.
However, when someone breaches the social contract and is subsequently imprisoned, they forfeit some of their rights as citizens. They no longer have the right of freedom of movement. They no longer have the right to be perilous to free society. They no longer have the right to follow their own agenda. They no longer have the right to demand where to be housed. For the greater good and safety of the majority of prisoners, it is untenable to retain male prisoners who claim to be transgender within women’s correctional facilities. The same is true for transgender females who want to be incarcerated in men’s prisons. The potential for abuse is simply too high. And there is enough abuse already.
The Transgender Prison Blues
Existing separation practices can improve prison safety
By David H. Landon
In our multi-cultural, gender-altering society, it’s somewhat surprising that the issue of this week’s debate would cause the angst that it apparently has stirred up. The question: where should a transgender prisoner be housed; with their biological matching comrades-in-crime, or with the prisoners with whom they gender identify?
We will start from the premise that everyone should have the right to be safe from both physical and psychological harm while incarcerated. Prisons should serve both as a deterrent for law breakers and as well as a place for rehabilitation so those released back into society have a chance to become law abiding taxpayers. If they are traumatized by having been sexually abused while in prison, there is little chance
for rehabilitation.
We know that under the best of prison conditions, that prison life is hard and fraught with conflicts amongst the population. However, the fact that one is in prison must not divest one of basic human rights. Are transgenders more vulnerable to attacks while incarcerated? Probably so.
There is statistical evidence that suggests that transgender women (biological males transitioning into females) face increased threats of violence while incarcerated. According to one survey conducted by the Transgender Law Center, 67% of transgender prisoners in the California correctional system report to having being assaulted while in men’s prison. The vulnerability of LGBT prisoners has led some prisons to separate them from other prisoners. However in most prisons they are housed with the general population. Statistically, these inmates are more likely to be assaulted both physically and sexually. They are more likely to be forced into prostitution when living in a male prison population.
Prison protocol for assigning one to prison for many years was based upon the inmate’s biological gender. If you had a man’s genitals you were assigned to a men’s prison. If you shared the biological genitals of a woman, then it was a woman’s prison for you. This was the case no matter how the prisoner self-identified. That policy was changed by President Obama in the last days of his administration, when prison administrations were ordered to allow transgender women to be placed in women’s prisons.
That fix was not a hit in at least some of the women’s prisons where women inmates were not happy about being housed in a prison with biological men no matter how they choose to identify themselves. In fact, four women being held at a Texas detention center are not at all happy with that Obama policy. They have filed a federal lawsuit arguing that the Obama decision is dangerous to them, leaving them at greater risk of rape if they are forced to share facilities with transgender women.
When Donald Trump took office he reversed the Obama policy. The U.S. Bureau of Prisons announced a new policy stating that an inmate’s biological sex will now be used to determine where transgender prisoners are housed. This new policy has angered the LGBT community.
The classic problem here is the rights of one group (transgender inmates) coming directly into conflict with the rights of a second group (women inmates). Expressing the opinion that as a woman, living in a cell block with a biological man makes them fearful for their safety, does not make them unreasonable or unsympathetic. Both groups of inmates want to feel safe during their prison stay. While they may be in transition from being a man to becoming a woman, until they undergo surgical modification, transgender women are seen, rightly or wrongly it doesn’t matter, as a threat by some women. Despite the all-inclusive message of the Netflix series “Orange is the New Black” to the contrary, transgender women in prison are perceived as threats to non-trans women. Frankly, the civil rights of one group should not override the civil rights of another group.
There is a compromise that should be able to work without affecting the rights of either group. Throughout the prison system there are populations of segregated prisoners within the same institution. Prison officials, for the most part, manage to keep rival prison gangs separated within each prison. They know to keep “Mara Salvatrucha aka MS 13” separated from the “Nazi Low Riders,” and the “Aryan Brotherhood” separated from the “Mexican Mafia”. That’s not to say that there aren’t times when the rival gangs find ways to mix it up. Segregating them in different prison blocks keeps the violence to a minimum.
If prison authority can segregate these violent gangs, then they should be required to protect transgender women by segregating them within men’s prisons. It’s not a perfect solution, but it addresses the violence against this population without endangering and violating the rights of others.
Preserving dignity and safety
Are our emotions overriding the facts?
By Ben Tomkins
I’m not transgender. If you are not transgender, you have as little to offer on what it’s like to be transgender as I do. Also, I am neither a doctor nor a psychologist. If you aren’t either, then we are equally unqualified to make factual assertions about the transgender paradigm. Therefore, moving forward as empathetic and moral human beings, it is critical that those of us in those categories make the following concession:
When it comes to trans issues, we are not born knowing or understanding them, and our average daily existence doesn’t provide the necessary experience for us to know what the f**k we’re talking about. If you can’t admit that, you have a perversely vainglorious sense of your cosmic value relative to your fellow beings.
This understanding is critically important when we talk about putting people in prison. Our current administration’s decision to void provisions for members of the transgendered community to be housed in a facility that corresponds to their current gender identification is not some form of tough but fair administrative judgment call. It’s a conscious choice not to care about the flagrantly available statistics, modern scientific thought, and reality in general. I am willing to grant that their consistency is remarkable, but I can go no further with them.
The balance of punishment with respect for human dignity is the difference between a just society and one that is itself criminal. We do not become dollar bills behind bars, whose only distinguishing characteristic is a serial number. Habeas Corpus—our constitutional right to be physically presented before a judge—is an enshrinement of the value that no course of justice provides for voiding someone’s fundamental identity.
So here are the facts that the current administration doesn’t care about: medical and psychological science views transgenderism as a real condition that is of foundational importance to a person’s identity and dignity. The ability to provide services for the transgender community offers an overwhelming benefit for their quality of life, and one that is uniquely personal. In other words, this is about “I am,” not “I like to
pretend to be”.
Furthermore, the facts of life in prison for someone who is transgender are far more bleak than the average inmate’s. If you are using hormone replacement therapy and living as your non-biological gender, it is an interruption of the continuity of your humanity to be told you are going to have to get by without it because you are in prison. There is no condition in which a non-transgendered man or woman would be told that, for their stay in Club Fed, they are going to have to be a different gender. It’s laughable to be sure, but only because it’s so unthinkably outrageous. Similarly, we would never tell a person that a stay in prison was going to delay splinting a broken arm or cost them access to insulin, and we can come to this conclusion with the most placid simplicity of thought.
Transgendered people also face extremely high rates of sexual abuse in prison relative to the rest of the population. The following example provides anyone with a reasonable mind enough to know what it might be like: current policy provides that a person born as a man but living and grooming themselves as a woman who has breast implants would be housed in the general population of a male prison with a cellmate. This is not a hypothetical I’ve concocted for the sake of this debate. There was a headline-making case about a transgendered inmate this very month in a Colorado men’s prison. The prison experience made Andy Dufresne’s first year in Shawshank look like Megan and Prince Harry’s wedding album. After several rapes and beatings, the final sexual assault left her in the infirmary hours after a judge denied her request to be transferred to a safer situation.
In all cases, the facts on the outcome of these situations are clear. Transgendered inmates, whether in male or female facilities, are overwhelmingly on the abused side of the equation. Men living as women do not show up in female prison facilities and take over the place as if Roger Federer took a lap on the WTA tour. They serve out their time in as much faceless obscurity as they can muster given their circumstances. The cost to our prison facilities is minimal, as are the arrangements necessary for accommodating clothing such as bras, sanitary products and any treatment continuity that
predates incarceration.
We must be careful in a democracy as polarized as ours is these days that we don’t allow our imagination and emotions to override the facts. We can preserve the dignity and safety of transgender inmates, and it is our responsibility as a people who believe in the rule of law and value of our common humanity.
Equality for all
Transgender prisoners have rights, too
By Patrick Bittner
In an age marred by very real fears of violence and hate, the idea that someone should be treated with respect and dignity is becoming somewhat of a radical, fringe idea. Progress, it seems, has become either an antiquated notion or a dirty word, associated with weakness and un-American thinking. To be equal no longer means regardless of our differences but rather to be forced into the mold of the angry, white, straight, and currently-in-power minority. And while we can debate the role of the government in defining what is right, we cannot discount the role of that body to enforce and promote equality among its citizenry. But what the shaved head-bearing, gun-toting, loud-mouthed members of middle America seem to forget is that equality does not mean everyone is the same as you. It means that everyone is given the same chance and treatment in life. This is no different when considering the question of incarceration. Prisoners are allotted rights that do not infringe on their basic human condition and guarantee them the same conditions and treatment as every other inmate regardless of any conditions. The rollback of these rules blatantly breaks this notion and creates a culture of uncertainty that can be taken advantage of on every level of both the criminal justice system and the underground prison society and leave the most vulnerable inmates defenseless.
While many may argue that the moment an individual breaks the law they are sacrificing their rights, this is simply not true. According to Cornell Law School, “Federal and state laws govern the establishment and administration of prisons as well as the rights of the inmates. Although prisoners do not have full constitutional rights, they are protected by the Eighth Amendment’s prohibition against cruel and unusual punishment. This protection also requires that prisoners be afforded a minimum standard of living. Regardless, prisoners retain some constitutional rights, such as due process in their right to administrative appeals and a right of access to the parole process. Additionally, the Equal Protection Clause of the Fourteenth Amendment applies to prison inmates, protecting them against unequal treatment on the basis of race, sex, and creed, and the Model Sentencing and Correction Act, created by the Uniform Law Commission in 1978, provides that a confined person has a protected interest in freedom from discrimination on the basis of race, religion, national origin, or sex.” Put shortly, it is against the Constitution to provide one prisoner with a different condition than that of a comparable prisoner. To place an individual, a person (and we must remember that just because someone is incarcerated does not mean they are no longer a person), in conditions that are against their identified gender directly contradicts the principles of the Constitution of the United States.
Not only is the refusal to treat transgender prisoners in a respectful and acceptable way illegal, it is dangerous. As the National Center for Transgender Equality puts it, “Trans people are also at high risk for abuse in prisons, jails, and juvenile detention. The categorical denial of transition-related medical care is common, as is prolonged isolation of trans people, which has been shown to have devastating effects on mental health and has been declared by the courts to be a type of torture.” Even more disturbing are some numbers about trans incarceration. According to the New York Anti-Violence Project, 16% of the transgender and gender non-conforming people have been sent to jail or prison “for any reason” versus just 2.7% for the general public. Seven percent were arrested or held in a cell solely due to anti-transgender bias of police officers, 16% of those who had been incarcerated were physically assaulted by inmates or staff, and some 15% report having been sexually assaulted by inmates or staff while incarcerated. Not only are these individuals jailed at a substantially higher rate than the general population, but they are at a higher risk of violent or sexual abuse during their incarceration.
To be blunt, all evidence points to this very specific segment of the prison population needing very specific regulations and often, protections. Removing the protections put in place by the Obama Administration does not save money, does not reduce violence, does not remove an infringement on rights, and definitely does not make it easier for the prison system to function. In short, it does two things, adds to the list of Obama-era rules that the current administration has undone, and takes away explicit rights and protections for a group of people that are not straight, white, or “average.” The animosity that an act such as removing these protections comes with is beyond comparison and those who support it need to re-evaluate their ethics and morals. Every man, woman, child, and everything in between in this county is guaranteed fair treatment by everyone, including the prison system, and to remove protections that enforce that shows the type of America that we are currently living in. If you want to do something about this, donate to the ACLU or even better, get out and vote and let’s ensure a future where all people are protected from abuse regardless of gender identity.