Transgender inmates: Treating them fairly, keeping them safe

In addition to the risk of depression and suicide, transgender people experience sexual violence, harassment and other adverse conditions at higher rates than the general population


This article was originally posted in May 2020, and has been substantially revised and updated.

September 26, 2020: California Governor Gavin Newsom signs S.B. 132, which requires state prisons to house inmates based on their stated gender identity, with a few exceptions. The law also mandates that corrections officers use inmates’ preferred pronouns when interacting with transgender prisoners.

April 6, 2021: According to the California corrections department, in the six months since S.B. 132 was enacted, “1,129 inmates have self-identified as transgender, non-binary and intersex.” The overwhelming majority are biological men who identify as transgender women, requesting to be housed in women’s facilities.

In this Dec. 10, 2013 an inmate wears his special purple wrist band in a new unit in the Harris County Jail for gay, bisexual and transgender inmates in Houston.
In this Dec. 10, 2013 an inmate wears his special purple wrist band in a new unit in the Harris County Jail for gay, bisexual and transgender inmates in Houston. (AP Photo/Pat Sullivan)

November 21, 2021: A women’s advocacy group sues the state of California to overturn S.B. 132, with two plaintiffs claiming they had been sexually assaulted by trans or non-binary inmates in women’s facilities.

January 20, 2022: New York Governor Kathy Hochul announces a policy initiative that would allow prisoners in the state to be housed “with persons of the gender that is consistent with such person’s gender identity.”

March 31, 2022: NBC News reports there are 4,890 transgender people incarcerated in state prisons across the country, and that just 15 are housed in facilities that match their gender identity.

April 14, 2022: After New Jersey enacts a policy requiring the state to house inmates based on gender identity, the New York Post reports two prisoners in a state women’s facility are pregnant as the result of “consensual sexual relationships” with a transgender inmate.

April 20, 2022: An Illinois federal judge orders the U.S. Bureau of Prisons to provide gender-affirming surgery to a prisoner incarcerated in Florida.

The topic of transgender inmates in U.S. correctional institutions is rapidly evolving. Obviously, jails and prisons have no control over the type of inmate who comes in. And just as the inmates in U.S. jails and prisons come from all walks of life, all races and religions, many also identify as members of the LGBTQ community. Notably, the past several years have seen a marked increase in the number of inmates who identify as transgender.

The civil rights movement, which began as a push for racial equality, has broadened in recent decades to include equal rights for other identity groups. Of these, the transgender inmate has presented one of the most difficult challenges for correctional facilities due to the traditional model of separating inmates by sex.

The challenge of transgender inmates

Dealing with special populations within a prison can be tricky, but few are quite as tricky as trans inmates. The old approach of placing an inmate in segregation because a male inmate identifies as a woman, or a female inmate identifies as a man simply does not comport with today’s laws and regulations designed to protect them. Housing is just part of the problem. There is also the issue of managing them, protecting them, and professionally interacting with trans inmates – plus the matter of attitudes held by both corrections officers and other inmates that can increase conflict.

Transgender inmates are people, and a new way of thinking must be instilled in the ranks of our nation’s correctional officers. Whatever an officer’s personal views of people experiencing gender incongruence, they must treat such inmates properly, with respect, and accommodate them within reason. Also, the safety and protection of these inmates are vital.

Staff must accept that corrections practices are changing in this area, and they must adapt to changing times. By the same token, transgender inmates must realize that accommodation is a two-way street. While they are to be kept safe – and every professional correctional officer knows and supports that – inmates must accept that incarceration is an environment like no other. Rules, including housing decisions, must be followed for everyone’s safety and well-being. Corrections staff must balance the needs and accommodations of transgender inmates with the requirements of keeping the facility safe and carrying out procedures, such as searches.

The lay of the land

Before we go any further, it is helpful to review the current thinking regarding sex and gender. Sex refers to a person’s physical characteristics such as reproductive organs, chromosomes and hormones. Gender is seen by many as a social construct based on cultural roles and norms. As some have put it, “Your sex is what’s between your legs; your gender is what’s between your ears.”

While most people we interact with every day are cisgender, meaning their sex and gender are aligned, many are not. Note that attraction is a different thing altogether, and these and other factors impact a person’s sexual and gender identity.

There are some very good reasons inmates in jails and prisons have always been housed according to sex – the primary one being safety. With the rising awareness of the more complicated interplay between sex and gender, more laws are being passed and policies implemented that require us to pay special attention to the sexual and gender identity of our inmates.

To some veteran corrections officers, these changes can feel confusing and strange. It may even be difficult to accept. But it does not matter whether you agree with the theories, policies and politics of sex and gender. Regardless of a person’s sex or gender, regardless of who a person is attracted to (or not), everyone in our jails and prisons deserves to be treated with dignity. Correctional facilities across the country are obligated to provide for the safe and legal care of all inmates, period. Furthermore, laws and policies often come with penalties that can punish both administrators and officers who fail to follow them.

Definitions

When discussing sex and gender identities, it is important to use the correct (and most up-to-date) terminology. LGBTQ is an umbrella acronym for lesbian, gay, bisexual, transgender and queer (or in some formulations, questioning). Some people prefer the extended LGBTQIA, which stands for lesbian, gay, bisexual, transgender, queer (or questioning), intersex and asexual. Others prefer adding a plus sign after the acronym (LGBTQ+) to indicate there are genders and sexual identities that don’t fit within the five-letter acronym.

Here’s what the letters stand for:

Lesbian: A woman who is sexually attracted to other women. A sexual orientation, this term can be used by women as well as non-binary people (people who don’t identify as a man or woman).

Gay: A person who is sexually attracted to people of the same gender. A sexual orientation, this term can be used by men, women, and non-binary people.

Bisexual: A person who is sexually attracted to both men and women. A sexual orientation, this term can be used by people of all sexual and gender identities.

Transgender: A person who is not gender-conforming, meaning their gender doesn’t match the sex that appears on their birth certificate. A gender identity, transgender is often shortened to trans, and is frequently combined with other words to indicate the person’s gender identity, such as trans woman or trans man. Note that the acceptable term is transgender, not transgendered.

Queer: A term often used for any person who identifies as LGBTQ. While many in the LGBTQ community feel the word is acceptable for self-identification (i.e., someone describing themselves), the word can be problematic when used by a non-LGBTQ person to describe someone else.

Questioning: A person who is in the process of trying to discover their own gender identity and/or sexual orientation.

Intersex: A person whose physical characteristics (including genitals, chromosomes, and appearance) don’t fit traditional categories of male and female.

Asexual: A person who doesn’t experience any sexual attraction to others, regardless of sex or gender identity.

Unique risk factors of transgender inmates

Anyone with any experience in jails and prisons knows it’s not unusual for an inmate to have dealt with tough circumstances prior to incarceration. Many inmates led hard lives prior to incarceration. This is especially true for trans inmates. Life can be difficult for transgender individuals, exposing them to harassment, unemployment and medical challenges.

Suicide and depression

According to the 2015 U.S. Transgender Survey, among transgender and gender non-conforming people:

  • 40% reported attempting suicide.
  • 82% had seriously thought about suicide in their lifetime and 48% had thought about it in the last year.
  • 39% reported experiencing “serious psychological distress.”
  • Lower educational attainment, unemployment and lower income all increased the prevalence of depression and suicidal thoughts.
Other risk factors

In addition to the risk of depression and suicide, transgender people experience sexual violence, harassment, and other adverse conditions at higher rates than the rest of society. According to the National Transgender Discrimination Survey:

  • Transgender and gender non-conforming people are four times as likely to live in households with an annual income of less than $10,000.
  • 30% reported having a physical disability or mental health condition that substantially affects a major life activity.
  • 57% experienced family rejection.
  • 19% reported experiencing homelessness.
  • 90% reported experiencing harassment or discrimination at work.
  • 26% reported having lost a job due to their sexual identity, and respondents experienced unemployment at twice the rate of the overall population.
  • Of those who expressed a transgender identity or gender non-conformity while in grades K-12, 78% reported high rates of harassment, 35% reported experiencing physical assault, and 12% were victims of sexual violence.
  • Of respondents who have interacted with police, 22% reported experiencing harassment by officers.
  • Of respondents who had been in jail or prison, 16% reported being physically assaulted and 15% reported being sexually assaulted while in custody.
  • Respondents reported much higher rates of HIV infection, drug and alcohol use, and smoking than the overall population.

These findings can assist correctional staff in being more attentive to transgender inmates and gender-nonconforming people. Life is tough enough for transgender people on the outside; just think how jail and prison can make life even tougher.

When corrections officers mistreat LGBTQ inmates – or allow them to be mistreated by other inmates – the consequences can include victimization from inmates, depression and death by suicide. These impacts, in turn, can lead to lawsuits and even criminal charges against the abusers.

The basic premise that should be followed by corrections staff is that many of these offenders have faced an uphill battle in life with family, school and work. Being booked into a jail or receiving a prison sentence may magnify feelings of depression, hopelessness and rejection. Staff must be aware of not only mistreatment of LGBTQ inmates from unethical staff or inmates, but also signs of internal turmoil the inmates may be feeling. Observations of these inmates and communication with them and among staff are critical in preventing further harm.

In addition to the risk of depression and suicide, transgender people experience sexual violence, harassment and other adverse conditions at higher rates than the general population.

Besides fear and anxiety among LGBTQ inmates housed in the stark, often overcrowded environment of a correctional facility, transgender inmates have special medical needs. If these are not met, staff can be sued for the denial of medical care under the Eighth Amendment.

Manipulation

Correctional staff must not equate trans inmates with promiscuity, but the possibility is always there. Many exercise both discretion and maturity and follow the institutional rules prohibiting sexual activity. Like most inmates, they just want to do their time and be released. However, whether accused LGTBQ inmates are pre-trial or post-conviction, they have been accused of breaking the law; staff cannot ignore the fact that they may be streetwise and have engaged in criminal behavior. Being LGTBQ does not give these offenders a “pass.”

The specter of inmate manipulation and “getting over” on the staff is a constant problem and should be included in any serious discussion of transgender inmates. Any inmate, regardless of gender identification, can manipulate others and commit acts that harm their victims and embarrass the agency. Most inmates will give staff no problems, while some will try to do time on their terms, which may include sexual predation.

Being a sexual predator under the guise of transgender identification can have serious consequences. For example, a transgender inmate may insist on having staff of a particular gender conduct personal searches – including strip-searching. In some cases, the inmate may be manipulating others for their own sexual excitement. If they discover that staff members are uncomfortable with their requests, they may take leverage the situation to smuggle contraband or otherwise exert power over the staff.

Another serious potential consequence of housing trans women with female populations is the possibility for sexual contact, desired or undesired. As we’ve seen in at least two cases, this includes the possibility a trans inmate can impregnate a female inmate.

Corrections staff are trained to practice universal precautions: All inmates are possible escape risks, all inmates are possible suicide risks, all inmates can be violent, and all inmates are possible manipulators. This includes transgender inmates and other members of the LGBTQ community.

As an illustration, consider a situation that allegedly occurred at the Washington Corrections Center for Women (WCCW). An inmate spoke to the media about experiencing and witnessing sexual assaults on female inmates by male inmates who claimed to identify as women. One such inmate, known as Jazzy, was reported to have committed multiple sexual assaults on fellow inmates. One victim woke to find Jazzy touching her “all over” and displaying an obvious erection. She reported the incident to staff, who penalized her for filing a false report and segregated her from other inmates. Jazzy accused the alleged victim of being “homophobic” and was not punished for the incident.

One former WCCW corrections officer stated that male inmates were manipulating the transgender transfer policy to get access to female inmates. In this case, Jazzy ultimately confessed that he had not fully transitioned to female and kept it a secret from the staff. He avoided a strip search by pretending to cry and accused staff of wanting to “experiment with his parts.” Inmates who use transgender policies to their advantage have been known, upon release, to return to their original gender. When asked about these alleged incidents, the Washington Department of Corrections stated that placement decisions of transgender or non-conforming inmates is decided through a lengthy team evaluation process, looking at mental health, health services and facility considerations.

Correctional policies related to transgender inmates

The main goal of correctional facilities with regard to transgender inmates should be to ensure their safety. Safe custody means protecting transgender inmates from attacks and harassment by other inmates and “rogue” staff. It also means keeping them safe from themselves by preventing self-harming actions. It is traumatic to be locked up inside a correctional facility where many inmates view harassment and assault – both physical and sexual – as acceptable behavior. Unfortunately, some staff may also find it amusing to harass transgender inmates. This unprofessional behavior is not to be tolerated and any staff member who engages in such conduct must be disciplined.

That said, housing and supervising transgender offenders is not easy. While gay, lesbian and bisexual inmates are generally housed according to sex, transgender offenders present a greater challenge because their gender identity doesn’t match the sex they were assigned to at birth.

Another issue is “passing” – that is, whether the trans inmate’s appearance tends to cause others to perceive them as a man or woman. We’ve all be conditioned by a lifetime of experience to assume a person’s gender based on how they look. To the objective observer, a trans man may or may not “pass” for a man; likewise, a trans woman might “look like” a woman to others … or she might not. We in corrections need to understand that a person’s outward appearance might not match how that person feels inside. While some may react to this mismatch with confusion or even distaste, the appropriate (and human) response should be guarded compassion, with manipulation and safety in mind.

Different states have different laws and policies regarding housing assignments for trans inmates. Some require the segregation of inmates according to the sex they were assigned to at birth. Others assign housing in accordance with the inmate’s gender identity.

When Congress passed the Prison Rape Elimination Act (PREA) in 2003, it established standards to guide correctional staff in preventing sexual violence in jails and prisons. The legislation addresses such issues as housing, classification, medical care, and treatment of inmates who are gender non-conforming.

Screening/classification

All safe housing begins with good screening by the facility intake personnel: booking, classification, medical, mental health and confinement. A good, thorough intake interview asks inmates whether they are having any mental health issues or medical problems, as well as details of their social, educational and work history. If the offender identifies as LGBTQ, special care must be taken to assess their fears, depression, anxieties, vulnerabilities, and so forth. In-depth screening is a must; just an inmate simply saying that ‘I identify as a male or female’ is not to be a ticket to the housing of that inmate’s preferred gender. Many factors based on mental health, criminal history and medical issues must be thoroughly examined or discussed in a team approach. These decisions must not be rushed.

Standard 115.41 (PREA) sets forth screening for risk of sexual abuse and victimization. All intake screening is to be objective and take place within 72 hours of arrival at the facility. At a minimum, staff must assess:

  • The inmate’s age and sex.
  • The inmate’s physical build.
  • The inmate’s incarceration history, if any.
  • The extent and nature of the inmate’s criminal history (including sex offenses against children or adults).
  • Whether the detention is solely for civil immigration purposes.
  • Whether the inmate has a physical, mental or developmental disability.
  • Whether the inmate is identified as gay, lesbian, bisexual, transgender, intersex, non-binary or gender nonconforming.
  • Any past history of sexual assault or victimization.

Good communication and classification systems, where information is shared and acted upon, is crucial to successfully manage inmates who identify as transgender. Post-to-post and shift-to-shift pass-on of information is one of the keys to a well-run correctional facility.

Housing

All housing assignments inside a facility should be made with the mindset of “separating the predators from the prey.” This should happen regardless of gender or sexual identity, and all staff must work together to keep LGBTQ inmates safe from predatory, violent inmates. There are in-house rules against sex in the facility, so at least in theory, sexual orientation should not be a concern.

Laws and regulations regarding housing have a central theme – ensuring the safety and well-being of all inmates. PREA Standard 115.42 states the correctional agency shall inform staff of the information obtained from the initial screening, with the primary goal of separating inmates at high risk for being abused from inmates who are at high risk to abuse them. Put simply, keep possible victims away from possible predators.

PREA requires housing decisions to be made on an individualized, case-by-case basis. It also mandates that housing arrangements for gender-nonconforming inmates be reviewed twice per year. Serious consideration should be given to the transgender or intersex inmate’s own views about his or her safety. Transgender inmates should also be afforded the opportunity to shower separately from other inmates.

Please note that it’s possible that intake staff may determine an inmate who identifies as trans is more likely to be the predator rather than the prey. There is no objective test to “prove” a person’s professed gender identity. All we have is the inmate’s assertion, and it is not up to us to question or validate whether the inmate is sincere or not. The inmate’s actions will tell us whether they are a predator.

Especially where inmate housing by gender identity is mandated by law, we can expect to see scenarios in which male inmates cynically assert a trans identity and request transfer to women’s facilities for the specific purpose of getting access to female inmates to victimize. Other males may identify as transgender and request transfers because they believe they are less likely to be harassed or harmed in a women’s prison. In situations like this, it is up to corrections administrators and staff to walk the fine line between providing housing that matches each inmate’s gender identity and ensuring that all inmates are afforded adequate protections. To do so requires good communication among the staff.

Segregated/dedicated housing

Of note here is that the correctional facility cannot place LGBTQ inmates in dedicated housing solely on the basis of their sexual or gender identity. Protective housing of transgender or intersex inmates may appear convenient but is not easily condoned by PREA standards.

According to PREA Standard 115.43, inmates at high risk of abuse and victimization shouldn’t be placed in involuntary segregated housing unless staff makes an assessment there is no alternative to keep them safe. (Exceptions include a dedicated housing unit established with a consent decree from a court or a legal decision that has a purpose of protecting such inmates.) If this assessment is not immediately conducted, as is the case at times due to the heavy workload of staff, an inmate can be placed in involuntary segregation or protective custody for less than 24 hours while staff considers the situation.

Inmates housed in this manner shall be afforded access to programs, education, privileges and if possible, work assignments. Reasons for such placement must be clearly documented. This standard also states the facility shall place inmates on involuntary segregated housing only until an alternative means can be arranged that separates the inmate from all likely abusers and threats to his or her safety. Such a housing situation shall not ordinarily exceed a 30-day period.

There is no “one size fits all.” If a situation such as this goes on, staff must review the circumstances every 30 days to determine the ongoing need for segregation from the general population.

The inmate cannot be forgotten about. Housing is a team decision, and decision-makers must consider the best housing assignments for all inmates’ health, welfare and safety while also considering the possibility of management and security problems. Showers and searches must also be addressed.

Changes are occurring to traditional thinking about housing transgender inmates. In New York City, jail inmates will be housed with inmates of the gender they identify with. Exceptions to this policy are if a safety assessment of the inmate requires alternative housing. One option under consideration is a transgender housing unit.

Words matter

Housing is just one area that requires a change of thinking when it comes to transgender inmates. Another is language. It is important to make sure every member of the jail or prison staff is adequately trained on the acceptable and unacceptable ways of referring to trans inmates.

In the past, it was not uncommon for corrections staff to use derogatory terms such as he-sheshimit and tranny when referring to non-conforming inmates. Using slurs like these is not just unprofessional – it also signals to other inmates that the transgender person is fair game, which is likely to lead to increased abuse. (It can also lead to litigation.)

The accepted practice is to determine the pronouns preferred by each prisoner and use them consistently. While some corrections officers may balk at using he/him/his to refer to someone who “looks” female or using she/her/hers for an inmate with a beard and a penis, the facility should set a policy and follow it consistently. Some gender-nonconforming inmates may prefer they/them/theirs or even neopronouns like ze/zir/zirs. Again, it is not our job to question or second-guess a prisoner’s identity, regardless of our personal opinions.

There are other language pitfalls that are best avoided. For example, with the exception of lesbian, staff should be encouraged to use words related to gender and sexual identity as adjectives, not nouns. For example:

WRONG: a gay
RIGHT: a gay person/inmate/prisoner

WRONG: a trans
RIGHT: a trans person/inmate/prisoner

WRONG: a transgender
RIGHT: a transgender person/inmate/prisoner

Here are some other terms to avoid, and the more accepted terms to use instead

WRONG: sex change operation, sex reassignment surgery
RIGHT: gender-confirming surgery, gender-affirming surgery

WRONG: sex change hormones
RIGHT: gender-affirming hormones, feminizing hormone therapy, masculinizing hormone therapy

The point of all this is not political correctness or coerced speech. Rather, it is about affording everyone the dignity due to every inmate in our care. It is about professionalism and being nonjudgmental. It is also about preventing lawsuits and making sure your facility and the people who work there comply with the laws and regulations of your state. Ultimately, it’s about “smooth shifts.” The more respect we can foster between inmates and staff – and between inmates and other inmates – the less friction we will see in day-to-day operations.

That said, we also have to be realistic. This is a quickly evolving societal area and correctional officers are often making decisions and interacting under fast-moving, hectic, unpredictable and potentially dangerous circumstances. Staff must follow directives and policy. But if a well-meaning correctional officer makes an honest mistake and forgets to use a trans inmate’s preferred pronouns, or asks if an inmate is undergoing a “sex change operation” (thinking that there may be a serious medical issue), it shouldn’t necessarily trigger an immediate disciplinary reaction. There may be no intent to ridicule, disrespect or harass. Although an inmate complaint must be allowed to go through the proper channels, administrators should also take into account whether the officer was doing the primary job of caring for the inmate. Further, evidence that the officer corrects the mistake and tries not to repeat it can protect the officer against civil litigations and being accused of harassment.

The Sarasota County example

The policy of the Sarasota County (Florida) Sheriff’s Office Corrections Operations and Services Bureau provides some insight into managing transgender and intersex populations in a respectful, and safe way, following PREA guidelines. [24]

  • At admission, the inmate identifying as LGBTQ or other gender-identifying community member will be given a Search Preference form. Notification will be given to the medical staff and classification staff that the form has been completed.
  • Both the operations bureau commander and watch commanders will be notified of any special housing assignments of transgender and intersex inmates and will brief staff.
  • The inmate’s legal name and gender will be entered into the jail’s database. They will be identified by their chosen gender and name.
  • Intersex and transgender inmates will be issued jail clothing based on their gender identity.
  • Classification and medical personnel will assess risk and vulnerability using PREA guidelines.
  • Housing: Transgender or intersex inmates may be housed per their gender identity, rather than sex assigned at birth. Classification and the operations bureau commander weigh factors such as the inmate’s health or safety, programming, and management and security. Decisions are made on a case-by-case basis.
  • Classification staff may house transgender or intersex inmates according to sex assigned at birth, if necessary for the inmate’s safety, emotional well-being, or the safety and security of the facility.
  • LGBTQ inmates can file grievances to have their housing assignments re-evaluated.
  • Jail adjustment is important; the jail staff may contact and consult with identified members of the LGBTQ community to provide resources and support to the inmates.
  • The Sarasota County Sheriff’s Office approach to LGBTQ inmates embodies a concept of respect, addressing inmates by chosen name, last name and gender.

There are some inmates who will never cooperate and respect officers, but as a jail veteran, I can say that most inmates, when treated with respect and fairness, respond positively to the correctional officer. This applies to transgender inmates, too.

Safety is key

Corrections professionals at all levels are grappling with housing and maintaining safe custody of inmates with gender issues. The old way of thinking was simply to segregate transgender inmates. However, under PREA standards, inmates cannot be placed in housing solely on their gender identification or status.

Transgender inmates must be kept safe and free from sexual victimization, harassment and assault, and corrections staff must ensure they receive needed medical and mental health care and are not in the proximity of predatory inmates. This can be accomplished by staff practices of respect and concern for safety. Staff must accept that corrections practices are changing in this area, and they must adapt to changing times. However, there must be a down-to-earth, realistic balance; trans inmates are to be respected, kept safe and as much as possible, be afforded accommodations. But the line officer and supervisors, along with the brass, should always remember that “an inmate is an inmate is an inmate” – regardless of gender identification.

Bibliography

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