How should correctional facilities manage transgender offenders?
An interview with Jail Risk Management Consultant Donald L. Leach
It’s hard to find accurate statistics on exactly how many people in the United States (or anywhere else) are lesbian, gay, bisexual or transgender (LGBT). Nonetheless, what we know for sure is that the number of people who define themselves as LGBT is rising – fast. And this has a distinct impact on the world of corrections.
“As gender identity becomes more recognized as a legitimate concern that individuals have, you are going to see more of it in corrections,” said Donald L. Leach, a Jail Risk Management Consultant based in Lexington, Kentucky.
Leach hosted a workshop at the 2010 American Jail Association conference in Portland, Oregon titled, “Sexuality in the Jail: Issues with Managing Gay, Lesbian, Bisexual, Intersexual and Transgender Offenders”, which primarily discussed this question: How can correctional professionals define and manage the LGBT community effectively, securely and in correspondence with the law?
This article will discuss some of the related issues that can arise in the jail or prison environment and how Leach recommends dealing with them.
Using the right terminology
When dealing with sensitive issues like this, Leach notes that what might seem like a harmless slip of the tongue can quickly turn into a major liability risk. Here are a few terms you need to be aware of:
- Sexual preference: The preference one shows by having sexual interest in members of the same, opposite or either sex
- Gender identity: Distinctly different from sexual preference, gender identity refers the gender with which a person self-identifies. Thus, for example, it is possible for someone to be a biological male who identifies themselves as a woman and also has a sexual preference for women.
- Transgender: A general term applied to a variety of individuals, behaviors and groups involving tendencies that vary from the usual gender roles
- Transsexual: A more specific term for when an individual identifies with a physical sex that is different from their biological one
- Intersexual: A group of conditions where there is a discrepancy between the external genitals and the internal genitals, thus providing the individual with components of both the male and female genitalia
Housing: Predator vs. prey
Regardless of sexual preference and gender identity, a fundamental objective in corrections must be to “separate the predators from the prey,” Leach said.
In many facilities, he said, “we’re not doing a good enough job of separating by classification.”
In other words, an inmate’s sexual identity or preference is only important to officers in so far as it helps them to decipher whether the inmate is likely to become a victim of abuse in the facility, Leach said. They should then be housed accordingly.
“We need to eliminate all types of violence,” he said. “Identify the predators and then remove them. It’s about protecting inmates from violence, sexual or non.”
Housing: Sexual preference
So, if our goal is to better protect vulnerable inmates, should we be using sexual preference as a method for classifying inmates? Leach says “no”, because knowing an inmate’s sexual preference shouldn’t affect how we house them or define whether or not they’ll be victimized.
“We don’t care what your preference is,” Leach said. “There is no sex in the jail - period.”
Leach also challenges the notion that because an inmate is sexually attracted to someone of their own sex that it means they’re going to have sexual relations while incarcerated.
“It’s not true that people will automatically couple-up,” Leach said, emphasizing that just because a man is gay, it doesn’t mean he will be attracted to all and any men.
Instead of focusing on issues of sexual preferences, Leach said, “what you look for is sexual identification”.
Housing: Sexual identity
When booking offenders, Leach said, it pays tenfold to ask the incoming prisoner whether they identify as male or female, regardless of what might seem like obvious physical characteristics to you and other staffers.
For instance, if someone is clearly (from a physical standpoint) a man but claims to identify as a woman, should this affect how we house them?
The best thing to do in these situations, Leach said, is ask. First, ask the transgender or intersexual offender whether they would like to be housed with men or women. If they say “with women”, then ask the women in the housing unit if they’ll be comfortable living with a man who identifies as female. In these situations, clear communication between all parties is critical and often very effective, he said.
This is not to suggest, Leach stressed, that inmates should be allowed to choose which gender they are to be housed with. It is simply another "predator vs. prey" risk to be considered by staff.
Once all predator vs. prey risks have been evaluated and the inmate has been housed, Leach reminds staffers to make sure to document the whole process that resulted in classification and housing of the offender, thus protecting themselves from any future liability risks.
There is, however, one specific case scenario Leach said to beware of: the male inmate who claims to identify as female simply to get a chance to prey on women sexually. However, this is again an issue of predator vs. prey and should be combated through a rigorous classification system.
Who should conduct searches?
Next to housing, deciding who should conduct searches is one of the most difficult tasks - and highest liability risks - correctional professionals face when dealing with LGBT inmates, according to Leach.
“What we’re looking to do is not put additional trauma on people during searches,” he said.
Obviously, an individual going through a strip search is going to experience a certain level of embarrassment and trauma – in many ways this is just the nature of being in prison. The question, Leach said, is “how much embarrassment is ok,” before staffers find themselves in legal trouble?
According to Leach, as with housing inmates by gender identity, the key to conducting searches in an unclear situation is communication. Ask the inmate if they would like to be searched by a man or a woman. Get them to clearly confirm their preference and then document the process thoroughly, thus protecting staff if the inmate chooses to claim victimization.
If the inmate isn’t sure whether a man or a woman should conduct the search, offer to have both a man and woman officer in the room, Leach said. Often this is good practice in any situation where a male inmate requests to be searched by a female.
All in all, dealing with issues of sexual preference and identity will continue to be a tricky matter for correctional professionals until clearer case law develops around the process. For now, however, here’s a recap of some of the key points given by Leach in both his presentation and interview with C1 that staffers can use to protect both themselves and the inmates:
1. Improve our methods of classification (remember to ask about gender identity)
2. Clamp down on all types of violence and any sexual relations (same-sex or not)
3. Communicate clearly with all inmates and get their feedback when making inmate housing and search decisions
4. Thoroughly document all communication and the decisions made based on it
Please feel free to post any questions regarding these issues in the comment section below and we’ll forward them on to Mr. Leach.