When President Obama commuted the sentence of Chelsea Manning, a transgender woman in the Army who was convicted of leaking secret government documents, a spotlight was shone not only on her legal case but also on the treatment of transgender women in prisons all across the country.
Both the transgender communities and corrections officials had been aware of this issue for many years; until relatively recently hardly anything has been done about it. Even now, although policies have started to be developed, implementation has hardly begun.
In general, transgender inmates have been assigned to prisons according to the sex indicated on their birth certificates rather than the gender with which they identify. As a result, transgender women have routinely been put in men’s prisons, where they have been badly treated and have very often been victims of sexual abuse. Most transgender women inmates feel that they belong in women’s prisons, but their protests have usually not been taken seriously.
Serious studies of the extreme vulnerability and mistreatment of these women began about 10 years ago. The one most frequently referred to was conducted in California. It indicated that sexual assault was about 13 times more common against transgender women as against other inmates and identified them as one of the most vulnerable groups within the prison system. These findings are similar to those of other studies.
Of course, the prevalence of sexual assault in prisons in general has been common knowledge for a very long time, but it has traditionally been associated primarily with attacks by men against other men. The more recent focus on assault against transgender women in particular was spurred by the Prison Rape Elimination Act of 2003 (PREA). When the final rules for implementing this important law were issued by the Justice Department in 2012, they did contain several provisions for improving the treatment of transgender inmates. The most important one was that the decision about which sex-designated prison an inmate should be assigned to cannot be based on anatomy alone, but must also consider other factors and be made on a case-by-case basis, with the safety of each inmate as the first priority. That language obviously left room for a great latitude of interpretation.
By 2016 it was clear that in practice PREA was being largely ignored. This fact was emphasized by various transgender and prisoner advocacy groups, and in that year the Justice Department issued a “clarification” of the rules, which was essentially just a restatement of the original regulation. Ironically, one of the main results of PREA so far may be considered unfortunate for transgender inmates. Because the regulation forbids housing transgender inmates in separate buildings, New York announced in November of 2016 that it may close the transgender housing at its huge Rikers Island prison, although it had been designed to improve the safety of just such prisoners.
Besides vulnerability to sexual assault, probably the other biggest problem for transgender prison inmates is health care. Even outside of prison, special health issues faced by transgender people often make it difficult to obtain adequate medical care. And in addition to more routine care, many transgender people and their doctors consider hormone therapy and sex reassignment surgery to be essential to their health. Prison systems have routinely rejected such requests from inmates, but now California has agreed to provide such treatments when a doctor considers them necessary. The first sex reassignment surgery provided by the state for a prisoner took place in January of 2017.
The ultimate solution for transgender women in our prisons will depend on the same thing they need in the outside world — to be treated like any other women. This will require housing them in women’s prisons, but that in itself will not bring equal justice to them.
Trans people are incarcerated in disproportionately large numbers in this country. The reasons are many. They are vulnerable to discriminatory treatment by the entire criminal justice system, including law enforcement and courts in addition to prisons. And this poor treatment is related to the discrimination that confronts most of them throughout our whole society. Widespread employment discrimination forces many of them into poverty and not infrequently into prostitution as their only means of survival. Black transgender women in particular are at especially great risk both inside and outside of prison.
Although there are things that can and should be done to improve the treatment of the transgender population in prison, there will be limits to the success of such programs until both transgender men and transgender women are treated equally with everyone else throughout our society. This does not mean that we should not continue to work for changes in the treatment of transgender people in prisons. It just means that we should also work to improve their treatment everywhere else, so that eventually fewer will end up in prison in the first place.
Lee Schubert is the author of “Woman Incognito: Transsexual without Transition.”