Legal Battles: Transgender Inmates’ Rights

Introduction

Challenging binary gender norms and common conceptions of the differences between the sexes, transgender individuals are poorly understood, feared, and stigmatized (Scherpe, 2015). In the larger society, transgender individuals are subjected to harassment, violence, and employment discrimination, which results in significantly high rates of poverty, poor health, and isolation (Caramco, 2017). Their endurance of abuse and discrimination has been linked to higher rates of substance use, mental and psychological distress, anxiety, depression, suicidal thoughts, and HIV infection (Weber et al., 2018). Commonly, transgender individuals are negatively represented in culture and society. This antagonistic representation worsens in institutionalized environments (Hochdorn et al., 2018).

Considering their frequent mistreatment, marginalization, and employment discrimination, transgender individuals may adopt illegal survival strategies (Gordon et al., 2017). Some will participate in underground economies to earn income (e.g., prostitution and selling drugs), or turn to substance use as a survival mechanism (White Hughto et al., 2017). All such illegal acts place transgender individuals at risk for arrest, incarceration, and health issues (White Hughto et al., 2017).

The incarceration of transgender individuals is not only a consequence of illegal activities, but also of biased policing and sentencing practices (White Hughto et al., 2017). Historically, law enforcement has been part of the problem. The Stonewall Riots of June 1969 played a significant role in initial public awareness of police brutality directed toward the transgender community (Roberts, 2018). While some changes in policing policy have been implemented, almost half a century later, it is still common for law enforcement to presume any transgender woman is engaging in sex work, and to stop, harass, demand identification, and make arrests on the suspicion of prostitution. The transgender community refers to this phenomenon as “walking while trans” (Carpenter & Barrett Marshall, 2017).

According to the National Center for Transgender Equality (NCTE), 22% of transgender people report police harassment, 6% report bias-motivated assault, and transgender people of color report police harassment and assault at even higher rates, 38% and 15%, respectively. Those transgender individuals who work in the sex industry or participate in underground economies report more elevated levels of police violence, two times as many physical assaults and four times as many sexual assaults (National Center for Transgender Equality, 2015).

White Hughto et al. (2017), also report that 16% of the1.4 million transgender adults living in the United States have been incarcerated at least once in their lifetime.

Housing and Medical Care in the United States Correctional System

Correctional facilities rely traditionally on two institutions to navigate how they define, treat, and manage the placement of inmates in their custody—the criminal justice system and the medical community. Both the courts and lawmakers have defined gender along traditional and outdated ideas of biological sex as the same as gender. While the pairing of biological sex and gender is no longer how gender is defined in contemporary times, correctional institutions have been slow in changing policy to reflect the needs of transgender inmates. Taking their cue from policymakers and the courts that have relied on language from the Civil Rights Act of 1964, the Federal Rehabilitation Act of 1973, and the Americans with Disability Act of 1990, all of which define gender in biological binary terms, correctional institutions have also used this outdated definition of gender to make housing, work assignment, and medical decisions that affect transgender inmates. While correctional institutions rely on the decisions of courts and lawmakers to guide many of their policy choices, they also rely on the medical community. Since many correctional institutions still abide by binary sex role definitions of inmates, many transgender inmates will receive only necessary, albeit inadequate medical care.

In order to receive transgender-related medical services, many transgender persons are diagnosed with gender dysphoria. Gender dysphoria is a psychiatric condition which can be defined as a conflict between a person’s biological sex and their gender identity or expression. However, most transgender individuals and advocates find that a psychiatric label is inappropriate, stigmatizing, and unhelpful (Routh et al., 2017). This diagnosis creates a situation in which many inmates feel trapped between wanting necessary medical services and being labeled, which makes them more vulnerable in prison to unwanted attention, abuse, and violence. While the psychiatric label may force a correctional facility to provide necessary medical care to transgender inmates, it does not address some other concerns of transgender inmates. Best practices suggest that biological sex is insufficient as a classification for determining housing for inmates; gender identity provides more useful information (Buist & Lenning, 2016). This is particularly important for incarcerated transgender individuals who have been living and receiving medical care for transition or sex reassignment before incarceration.

Transgender Inmates and Correctional Systems

In July of 2018, Deon “Strawberry” Hampton filed suit in U.S. District Court in Southern Illinois requesting to be moved from the male correctional facility where she had been held since 2015 on a burglary conviction to a prison for women (Hampton v. Baldwin, 2018). Hampton, 27, had been living as a female since the age of five and had been taking hormones for the previous five years. She was incarcerated in the men’s prison and deprived of her hormone therapy despite repeated requests, resulting in a reversal of her transition. While in the prison, she had been sexually abused by inmates and guards, and felt like a “sex slave” (LeventisLourgos, 2018). Although the judge did not specifically order Hampton to be moved, she did suggest strongly that the prison system review their policies, ordering all Illinois prison officers to undergo training on dealing with transgender inmates. The Illinois prison system was given 14 days to comply with the order. Meanwhile, Hampton was moved to a women’s correctional facility as she requested.

It is clear that transgender inmates have needs that are different from cisgender inmates (Hochdorn et al., 2018). These unique needs, which include safety from transphobic violence, rape, victimization, and healthcare concerns, pose many challenges for prisons globally (Gordon et al., 2017). Despite the fact that transgender inmates represent a small percentage of prison populations, they are more likely to lack protection and access to necessary medical resources when incarcerated (Penal Reform International, 2016a). That correctional systems are not sufficiently prepared to accommodate transgender individuals’ needs is illustrated by the lack of correctional staff training on how to accommodate and interact with transgender inmates (Routh, et al., 2017). Furthermore, there are few options to protect the transgender inmate in carceral settings. Leaving them in the general population renders them vulnerable to sexual assault. While some prisons place the trans individual in solitary confinement for protection, this comes with social and emotional consequences associated with such isolation. Other correctional systems utilize mental health units as housing, but these subject transgender inmates to the stigma that is attached to stereotypes of these accommodations.

Notably, most professional occupations have a Code of Ethics (COE), charging members with, among other directives, a focus on social justice advocacy for the vulnerable and oppressed (National Association of Social Workers, 2017). Transgender inmates, by definition, could not be more vulnerable or oppressed. Yet, the lack of clarity regarding transgender inmate policy and the accompanying gender identity and presentation social stigmatization leave them open to higher incidences of brutality, sexual assault, exploitation, and healthcare ambiguity. According to the 2015 U.S. Transgender Survey, compared to their cisgender counterparts, transgender inmates are ten times more likely to be sexually assaulted by other inmates and five times more likely to be sexually assaulted by correctional staff (The National Center for Transgender Equality, 2018).

Prison Culture

A prison environment is a complex social structure. Men’s correctional facilities are characterized by a culture of hypermasculinity in which displays of traditional manhood, physical strength, heterosexuality, bravery, and dominance are amplified by the unique conditions of prison life (Buist & Lenning, 2016; Okamura, 2011; Ricciardelli et al., 2015). In these settings, physical and sexual violence become means for maintaining dominance and ranking in the male hierarchy. Prisoners viewed as the most physically and emotionally vulnerable tend to hold less power than other inmates (Ricciardelli et al., 2015). In particular, transgender women housed in men’s prisons are the most vulnerable to violence, often being “outed” through prison policies. For example, upon intake, many offenders are strip-searched in front of other inmates and staff. For a transgender individual, this is a psychologically humiliating act, revealing one’s body parts and external genitalia. For a transgender woman who has been taking hormones, receiving breast augmentation (top surgery) and retaining male external genitalia, a first-day strip-search “broadcasts” the incongruence of her body parts and ensures her targeting for nonconformance to the traditional male body norm (Buist & Lenning, 2016).

Across prison and jail settings, correctional officers hold much power over inmates. The correctional staff that chooses to violate their professional code of ethics can engage in a variety of deviant behaviors. Ross et al. (2016) have organized correctional officer deviance into three categories: deviance against the institution, deviance against other correctional officers, and deviance against other inmates. With respect to the treatment of transgender inmates, it is correctional officer deviance against inmates that is the source of violations that transgender inmates experience. Whether it is humiliating inmates, singling inmates out for additional security checks, facilitating violence by other inmates, or destroying property, correctional officers utilize power as punishment in these inappropriate ways.

Much like the subculture of policing, there is a “blue wall of silence” in corrections. Fellow correctional officers may be well aware of the abuse to which inmates are subjected, but are reluctant but to report what they know. The fear rises from both formal and informal sanctions in an occupation that relies on professional cohesion to keep one safe (Ross et al., 2016). In some instances, when inmates do raise complaints about their treatment, the response comes from officials who try to silence their complaints, applying policies and procedures that justify staff deviant and illegal behaviors (Ross et al., 2016). Scholars point out that many transgender plaintiffs find obtaining relief in the court system difficult due to its lack of experience with LGBTQ rights, bias towards the plaintiffs’ gender expression, and general lack of understanding about the needs of transgender inmates. (Jauk, 2013; Routh et al., 2017).

Likewise, in many corrections sectors, correctional officers are often white, heterosexual, able-bodied men responsible for the care of inmates who are very different from them. State and federal prisons house high percentages persons of color, the mentally ill, and now identified members of the LGBTQ community (Arkles, 2009). It is typical for correctional officers to classify themselves as blue-collar workers unlike other professionals in the criminal justice system. Many feel that they do not receive the community respect that police officers get (Arkles, 2009; Stohr et al., 2012). Correctional officers tend to be overworked, underpaid, lack proper training and education, and often work in dangerous physical settings isolated from the community, all of which contribute to a subculture that tolerates deviance among officers (Stohr et al., 2012).

Consequences of a Prison Culture

Daily, transgender individuals in carceral settings are humiliated and assaulted physically and sexually, fearing retaliation if they resort to legal remedies (The National Center for Transgender Equality, 2018). While the U.S. Constitution forbids inhumane prison conditions, it does not guarantee provisions of comfort. This grants prison staff and administrators significant discretion in the manner in which they treat and interact with prisoners (Caramco, 2017). Verbal harassment, for example, is not considered inhumane (Blevins V. Naeyaert, 2018).

When a prisoner files a claim arguing that individual rights have been violated under the Eighth Amendment (the prohibition of cruel and unusual punishment) or the Equal Protection clause of the Fourteenth Amendment, he or she must prove that prison staff was indifferent to any risk to his or her health or safety (Bealer v Warden, 2018). Indifference is difficult to prove, and not all inmates achieve success. In sum, the attitudes and behaviors of a correctional system toward transgender inmates can be attributed to its culture, its administration, and the characteristics of both inmates and staff (Routh et al., 2017).

Verbal, Physical, and Sexual Assault

According to the U.S. Bureau of Justice Statistics, 34% of bisexual men and 39% of gay men in U.S. prisons have been sexually assaulted by another inmate (United States Department of Justice, 2008; Penal Reform International, 2016a, 2016b, 2017). Caramco (2017) reports that over 24% of transgender inmates have been sexually assaulted by another inmate. In U.S. prisons, half of all sexual assaults are not committed by other inmates, but by correctional staff (United States Department of Justice, 2018; Penal Reform International, 2016b, 2017). Over 16% of transgender inmates are sexually assaulted by staff (Caramco, 2017; Routh et al., 2017).

In 2018, the American Civil Liberties Union (ACLU) of Pennsylvania filed a lawsuit on behalf of Jules Williams against Allegheny County, Pennsylvania. Williams, a transgender woman, was repeatedly assaulted while incarcerated at the Allegheny County Jail (ACLU Pennsylvania, 2018). Williams experienced verbal, physical, and sexual assault during several stays at the jail between 2015 and 2017. At one point, she was stripped naked by staff and left in her cell for male inmates and guards to abuse with the epithets: “freak show,” “faggot,” and “tranny” (Schmitt, 2017).

In 2015, Williams requested her own cell to avoid continued assault and risk of harm. Her requests were ignored, and she was housed with a male cellmate by whom she was raped repeatedly (ACLU Pennsylvania, 2018). The jail’s refusal to house Williams with female inmates reflected the standard practice with transgender women. The ACLU of PA contends that the county’s correctional facility practice violates transgender individuals’ constitutional rights under the Fourteenth Amendment’s equal rights clause (ACLU Pennsylvania, 2018). The case remains “pending” today.

In a separate case, Lonnie Jackson, a transgender woman incarcerated in Wisconsin, filed criminal charges against prison officers for poisoning her, asserting her Eighth Amendment rights were violated. Without her knowledge, an officer filled Jackson’s medical ice bag with soap. When the ice melted, Jackson poured it into a cup and drank it. Shortly, she experienced dizziness and stomach pains. She vomited, noticing bubbles in the toilet. She concluded it contained a harsh soap. He asked if it was common to put soap in medical bags and was told it was not and that staff is required to inform prisoners if anything is added to medical ice bags.

The suspected officer admitted that he had tampered with her bag. Jackson told him that he had violated prison policy and the Criminal Code of Wisconsin Laws. He responded that he was not required to tell inmates what was in the bag, and had he wanted to poison her, he would have used rat poison. The officer declared he put soap in ice bags for inmates who abuse privileges, and would continue the practice.

Jackson wrote letters and formal complaints, and requested a full investigation. Ultimately, the blue medical bags were replaced by clear bags, and an outside investigation was initiated. The Deputy District Attorney declined to file assault charges against the officer; however, the judge ordered Jackson’s amended complaint against Officer Kuepper, Deputy Warden Hable, and Security Director Zanon to be operative. Jackson v. Kuepper (2018) is still pending.

Discrimination and Neglect

While some staffers are verbally, physically, and/or sexually abusive, others are deliberately discriminatory and neglectful. James Jefferson, an African American transgender woman who is HIV-positive, was denied a job as a baker with the Prison Industry Authority (PIA). The supervisor of the PIA bakery told Jefferson that the PIA does not hire “sick” and “high-risk” individuals, and that she did not want to hire an African American transgender woman with breasts. Instead, the supervisor hired six inmates, all of whom had less work experience than Jefferson. Jefferson contends she was denied the job based on her race, gender identity, and HIV status (Jefferson v. Hollingsworth, 2018). Although this case was dismissed without prejudice in 2018 because Jackson could not demonstrate that individual staff were involved in the discrimination, the court granted the request to file an amended complaint in the future.

In another case, Passion Star, a transgender woman, has been housed in six different male facilities in Texas, and at each one, she has suffered sexual assault, violence, and rape (Lambda Legal; Passion Star a/k/a Zollicoffer v. Livingston, 2016). Represented by Lambda Legal, Passion Star filed multiple grievances and complaints, and requested placement in safekeeping. In response, prison officials told her to “suck dick,” “fight,” or to stop “acting gay” if she wanted the assaults to end (Lambda Legal, 2016). They also denied her request to be moved to a safer place despite the discrimination and violent sexual assaults she endures (Lambda Legal, 2016).

Policies

Passed unanimously by the US Congress in 2003, The Prison Rape Elimination Act (PREA) requires states to prevent the sexual abuse of vulnerable people in custody. The act requires prisons and jails to take measures to separate transgender women in male facilities from likely aggressors. Then-governor of Texas Rick Perry remarked that PREA standards were “ill-conceived” and declined funding that the Department of Justice had reserved for sexual assault prevention in Texas detention facilities (Lambda Legal, 2016).

On behalf of Star, Lambda Legal petitioned for a preliminary injunction enjoining defendants from housing Star in general population; a permanent injunction directing defendants to keep Star safe while she remains in custody; a declaratory judgment; expungement of disciplinary violations; medical and psychiatric treatment; compensatory damages; punitive damages; and attorney’s fees (Passion Star a/k/a Zollicoffer v. Livingston, 2016). Regarding her experiences with the Texas Department of Criminal Justice, Star expressed her thoughts and feelings in the following statement, “TDCJ officials get away with so much and disregard so many legitimate threats to people’s safety, and it needs to stop somewhere. I fight for my life every day in here. Safety from rape and assault is not a privilege. It’s a right, and I hope that this lawsuit will help make sure this doesn’t happen to anyone else” (Lambda Legal, 2016).

In 2016, the District Court held that the Director was aware of and disregarded the substantial risk of harm. Passion Star was granted parole in 2016 and released in 2017. The final settlement resulted in required policy changes, training for staff, and a monetary settlement for Passion Star (Lambda Legal, 2018b).

Violence and Death

Prison officials’ and staffers’ negligence and carelessness can lead to inmate violence and even death. Danny Oscar Hensley, a transgender woman incarcerated in Kentucky, was beaten, raped, and strangled to death by an inmate. Hensley was labeled at risk of being sexually victimized, while his murderer was categorized as a high risk sexual offender. Nevertheless, the prison’s Classification and Treatment Officer housed Hensley and his murderer in the same dormitory, and, against prison policy, allowed Hensley’s murderer to enter Hensley’s cell. Hensley’s father, in a lawsuit against the officer, contends that the officer and her supervisors did not protect his son, and that their failure resulted in his death. The judge denied summary judgment to the defendants, and a final pre-trial conference was set for 2019 (Hensley v. Bossio, 2018). There has been no action in the case since October 28, 2019.

In Shorter v. United States, Christopher Shorter, a transgender woman incarcerated in New Jersey, wrote a grievance to the warden, complaining the prison counselor was not properly trained in housing transgender individuals. The counselor originally assigned her to a twelve-man room, even though she was labeled at risk for sexual victimization. Her request to be moved to a two-person cell was approved, but the counselor housed her with a sex offender in the cell farthest from the officer’s station. Although she had the cell to herself, she was not allowed to put a lock on her cell door. She expressed fear of being assaulted and asked to be moved closer to the officer’s station. Her request was denied. Soon after, an inmate entered Shorter’s cell and assaulted her with a sharp object. The prison’s doctor did not perform a rape examination or a forensic medical exam and did not collect DNA. Additionally, the lieutenant investigating the assault did not ask Shorter any questions regarding the assaulter’s identity, and confiscated and threw away the clothing worn by Shorter during the assault. Shorter was involuntarily placed in a segregated housing unit, and told her claims of assault were unsubstantiated. In her civil rights complaint filed in the United States District Court for the District of New Jersey, Shorter contended that the failure of the jail to protect her violated her Eighth Amendment rights, and the prison’s failure to properly investigate her assault violated her Fifth Amendment right to Due Process (Shorter v. United States, 2018).

Inadequate Housing

A major concern among transgender rights activists is the housing of transgender inmates. Most countries do not have transgender-specific housing units. The U.S., Brazil, and Italy, for example, make decisions on inmate placement based on an individual’s external genitalia or biological sex, not his or her gender identity (Gordon et al., 2017). Genitalia-based classification places transgender inmates, specifically transgender inmates in all-male prisons, at a higher risk of sexual harassment, physical injury, rape, and death (Peek, 2018).

Housing transgender inmates in segregation or isolation units does not prevent their mistreatment (Peek, 2018). Such separation denies transgender inmates the services and programs available to other inmates, including jobs and treatment programs and the ability to make phone calls (Caramco, 2017; Peek, 2018). Moreover, placing transgender inmates in these units stigmatizes them further by emphasizing their status as a transgender individual and victim (Caramco, 2017).

Segregation and isolation reinforces the view that transgender individuals should face special consequences or restrictions because of their gender identity. Even if segregation or isolation prevents transgender inmates from inmates’ attacks, it does not prevent harassment from COs, a significant source of abuse (Peek, 2018). Advocates argue that transgender individuals should be accommodated according to their subjective gender identity, thus reducing sexual assault from other inmates (Peek, 2018).

Not all inmates are comfortable being housed with transgender inmates. In Addison v. Warden, Rondalyn Addison, who was incarcerated in Texas, filed a habeas corpus petition (a writ brought in to determine whether a person in the custody of legal authorities is being lawfully detained) objecting to the policy which allows male transgender inmates to be housed in female facilities. Addison argued that the policy violates the U.S. Constitution because transgender inmates pose a threat of sexual assault to female inmates. Consequently, she filed a court order to remove all male inmates from female facilities and transfer them to male prisons. The case was dismissed, as her claims that challenged the conditions of the prison were not actionable in a habeas corpus petition (Addison v. Warde, 2018).

Inadequate Medical Treatment

Many transgender individuals are not only assaulted in custody, but are denied medical care that is deemed necessary by medical experts. Only 40% of prisons in Europe, Australia, Canada, and the United States have a formal or informal policy addressing medical treatments, including hormone injections and sexual reassignment surgery (Gordon et al., 2017). A 2015 study reported that 80% of transgender prisoners experienced emotional distress from trying to hide their gender while incarcerated. The same study also found that over a third of the transgender individuals surveyed had used hormones prior to incarceration, and 44% had been denied them once they were incarcerated (Bright, 2018).

Necessary medical care is important to transgender individuals’ well-being and health (Drakeford, 2018). The denial of this medical treatment in prisons can cause depression, anxiety, and stress. Inmates who face gender identity-based discrimination are more likely to attempt suicide (Drakeford, 2018). While transphobic correctional healthcare providers are unwilling to administer gender-affirming care to inmates, most want to offer transgender specific care, but lack the appropriate skills and knowledge for its delivery (White Hughto et al., 2017). Furthermore, many in the correctional system report structural barriers that include policies that restrict services and treatment, healthcare budgets that are limited or insufficient, and a lack of institutional support (White Hughto et al., 2017).

Transgender Inmates Medical Care Cases

There are many recent court cases regarding denial of necessary health care services to transgender inmates. In Norsworthy v. Beard, Michelle Norsworthy, a transgender woman, was denied medically necessary gender reassignment surgery and a legal name change when incarcerated in a men’s prison. Along with gender dysphoria, she encountered brutal sexual assault and verbal abuse (Transgender Law Center, 2016, 2018).

The Transgender Law Center (TLC) represented Norsworthy at the federal district court level, arguing that the prison engaged in discrimination by denying Norsworthy’s surgery and name change. They also alleged that the prison’s actions violated both the Equal Protection Clause of the Fourteenth Amendment and the Eighth Amendment prohibition of cruel and unusual punishment (Norsworthy v. Beard, California, 2015; Transgender Law Center, 2016). For an inmate to make a successful claim for an Eighth Amendment violation based on the right to necessary medical treatment, he or she must prove the need for medical care was necessary and that prison officials knew he or she needed care (Bright, 2018). In 2015, a preliminary injunction was granted, and the California Department of Corrections and Rehabilitation was ordered to provide sex reassignment surgery and other adequate medical care for Norsworthy (American Bar Association, 2015; Transgender Law Center, 2016).

In McQueen v. Brown, Lamar McQueen, a transgender woman incarcerated in California, filed a civil rights action and First Amendment complaint against the California Department of Corrections Secretary. McQueen, diagnosed with gender dysphoria, had received 8 years of hormone therapy. Her intense mental distress persisted, and she required treatment in the form of sex reassignment surgery, as recommended by the California Department of Corrections and Rehabilitation psychologist.

The sex reassignment surgery review committee found that McQueen’s ongoing treatments provided her significant relief from her mental distress and denied surgery in 2016 and 2018. McQueen contended that the denial of her surgery revealed a deliberate indifference to her medical needs, in violation of the Eighth Amendment prohibition of cruel and unusual punishment. She also alleged that she was being treated differently because she is transgender, a violation of the Fourteenth Amendment’s Equal Protection Clause. In past cases, the Ninth Circuit Court of Appeals has held that both violation claims are within the jurisdiction of the court (McQueen v. Brown, 2018).

The California corrections system considers certain risk factors in classifying and housing prisoners. These factors include age, violent offender status, repeated offender status, and history of mental illness. It does not recognize safety concerns related to inmate sexual orientation or gender identity, or history or risk of victimization (Okamura, 2011). Like McQueen and Norsworthy, Shiloh Quine, a transgender woman, was also held in a California prison for men and denied sex reassignment surgery to treat her gender dysphoria. Further, the prison restricted her access to clothing and cosmetics provided in the women’s facilities (Transgender Law Center, 2015b, 2018).

Represented by the TLC, Quine requested a court order requiring the California Department of Corrections and Rehabilitation to offer medically necessary treatment as well as transfer her to a female facility (Transgender Law Center, 2018). In 2015, a groundbreaking settlement was reached, and the department acknowledged that sex reassignment surgery was medically necessary for Quine. She was moved her to a women’s prison (Transgender Law Center, 2015b). The department also agreed to change their policies so that transgender prisoners can access medically necessary treatment and clothing and cosmetics that reflect their gender identity (Transgender Law Center, 2015a, 2015b, 2018).

In the U.S., there are many cases similar to Norsworthy, McQueen, and Quine’s. Jessica Hicklin, a transgender woman incarcerated at an all-male correctional facility in Missouri, was repeatedly denied access to hormone therapy. Hicklin was diagnosed with gender dysphoria, and it was determined that she should receive hormone therapy, permanent hair removal, and access to gender-affirming canteen items. The Missouri Department of Corrections’ “Freeze Frame” policy, which bans access to hormone therapy for inmates if they were not undergoing treatment before being placed in custody, was used to deny this recommendation. The correctional facility repeatedly denied Hicklin treatment interventions despite multiple medical and mental health experts deeming them medically necessary (Lambda Legal, 2018a).

On behalf of Hicklin, Lambda Legal asked for a declaration that the defendant’s refusal to supply medically necessary care violated the Eighth Amendment’s prohibition of cruel and unusual punishment. Lambda also demanded preliminary and permanent injunctive relief that would order the defendants to provide medically necessary treatment. Hicklin solicited costs, expenses, and attorneys’ fees to be covered by the defendants (Hicklin v. Precynthe, 2018). In 2018, the federal judge ruled the Missouri prison system must provide hormone therapy for Hicklin (Benchaabane, 2018).

Transgender Staff Members

Across correctional systems, not only are transgender inmates discriminated against, but transgender staff members are as well. Jesse Vroegh, a transgender man and staff nurse at the Iowa Correctional Institution for Women, received medical treatment for gender dysphoria and applied to male facilities for employment (ACLU, 2016b). His supervisors denied his application. Vroegh was told to use unisex private restrooms, even as the use private restrooms can further isolate and stigmatize transgender individuals. In Mathis v. Fountain-Fort Carson School District 8, Colorado, the Colorado Division of Civil Rights ruled for the first time in court that prohibiting a transgender individual’s access to restrooms reflective of his or her gender identification is a form of discrimination (Mathis v. Fountain-Fort Carson School District 8, Colorado, 2013).

In addition to denying Vroegh equal access to gender-affirming facilities, the Iowa Department of Corrections also refused health care coverage for medically necessary surgery. As these medically necessary procedures are covered for non-transgender employees, it is clear that Vroegh was denied coverage because of his gender identity (ACLU, 2016a). In 2016, on behalf of Vroegh, the American Civil Liberties Union of Iowa filed a complaint with the Iowa Civil Rights Commission against The Iowa Department of Corrections for both the denial of medically necessary treatment and the use of restrooms and locker rooms that align with his gender identity (ACLU, 2016a; ACLU, 2016b). In 2019, a jury awarded $120,000 to Vroegh because his employer discriminated against him for being transgender by denying him the right to use the restrooms and locker rooms that match his gender identity and for denying him insurance coverage for medically necessary surgery (ACLU, 2019).

Barriers to Name Changing

Transgender individuals face barriers when applying for name changes to reflect their gender identity. For example, Michael Joseph Riley, a transgender woman serving life in prison, filed a petition in Probate and Family Court for a feminized name change. Prior to issuing a name change, the court had to determine if the change was inconsistent with public interest. Additionally, a report about the person filing was petitioned from the Commissioner of Probation, with public notice of the petition. The court sent a notice about Riley’s petition to the Attorney General of the Commonwealth, the Commissioner of Probation, the Executive Office of Public Safety and Security of the Department of Corrections, the Sex Offender Registry Board, the Plymouth County Sheriff’s Office, the Plymouth County District Attorney’s Office, and Riley’s then-wife.

The Plymouth County and Norfolk County’s District Attorney Offices filed objections to Riley’s name change. At the hearing, Riley contended that her name change was not inconsistent with public interest, citing that many Massachusetts incarcerated transgender inmates had changed their names. She also argued that denial of the petition would violate her rights under equal protections laws. The judge did deny the petition, citing confusion in the criminal justice system and its record keeping. The equal protection claim was not addressed. Riley appealed, and the issue denying the name change was vacated, with the case remanded for further proceedings (Riley, 2018). In Riley’s appeal, the Massachusetts Court of Appeals vacated a denial of a name change which would allow Riley to change her name (Rold, 2018).

Social and Political Action

To date, the largest reported survey of transgender individuals is the National Transgender Discrimination Survey (NTDS) which, in 2008 to 2009, gathered the experiences of over 6,400 transgender adults across the United States (Fitzgerald et al., 2015). According to the NTDS, societally, transgender individuals experience marginalization and stigmatization that contribute to participation in illegal economies, placing them at higher risks for poverty, unemployment, homelessness, arrest, and incarceration—where marginalization and stigmatization are heightened. Correctional staff do not have the education or training to accommodate transgender individuals, and transgender inmates are placed in carceral facilities that align with their biological sex, not their gender identity. Transgender inmates are harassed, verbally, physically, and sexually assaulted, retaliated against, denied requests for protection, raped, and murdered.

As referenced above, Congress passed the Prison Rape Elimination Act (PREA) in 2003, and the U.S. Department of Justice issued final regulations to implement PREA in May 2012, after nearly a decade of implementation study and review. PREA sets forth a comprehensive set of protective standards aimed at addressing the prevention, detection, and response to abuse to the Lesbian, Gay, Bisexual, Transgender, Queer/Questioning and Others (LGBTQ+) carceral populations. These standards include the following area protections: screening, classification, housing, protective custody, searching, limiting segregated LGBTQ+ pods/units to a voluntary or protective basis, separating minors from adult inmates, training staff, reporting abuse, supporting abuse survivors, defining consensual sex versus sexual abuse, grievances, access to courts, compliance, and enforcement (The National Center for Transgender Equality, 2018).

While the implementation of PREA policies and procedures has been a critical step to improving the rights of transgender inmates, this law is not sufficient for exacting change in correctional environments. Advocacy and assistance from local LGBTQ+ organizations and community members are crucial in ensuring that juvenile facilities, jails, and prisons are in full compliance with PREA standards. Furthermore, conformity to standards must be ensured by accrediting organizations, the Department of Justice, and state governors through both monitoring and imposing consequences for non-compliance. Ultimately, real policy transformation will only be achieved with changes in personal beliefs and attitudes toward transgender inmates by fellow inmates and corrections staff and administrations. The development of change actions will come from cumulative positive interactions with the transgender population. In this respect, advocacy and education are essential elements for the development and dissemination of knowledge, awareness, skills, and receptivity to transgender rights across correctional systems.

Further, advocacy and education initiatives should not rely solely on an “expert” perspective. Rather, real transformative change needs to be rooted in grassroots perspectives by partnering with individuals who have experienced marginalization and stigmatization first hand. Consistent with this perspective, Galvan and Bazargan (2012) conducted a mixed method analysis of over 200 Latina male-to-female transgender individuals in California. Based on their findings, the researchers offer practical suggestions for improving interactions with the transgender community.

Additional best practice suggestions can be drawn from the Los Angeles (L.A.) California Police Department (Transgender Law Center, 2012). Praised for their efforts in supporting the transgender community, the L.A. Police Department has released guidelines to address negative interactions between correctional staff and transgender individuals. Initially, the directives offer education on definitional terms and information about the transgender community, supported with a set of directives to ensure professional and respectful interactions. These include materials on how to communicate with transgender individuals and how to conduct field searches. These policies further support and detail changes to ensure proper processing, housing, custody, and protection of transgender individuals.

Because of societal change, transgender individuals are more open and visible than at any time in U.S, history, Larger social institutions including education, healthcare, the military, law, and law enforcement, and government branches at all levels are moving toward policies to protect these individuals. Across correctional systems, the task is not easy given the reliance on the traditional safety and security policy of segregating inmates by binary gender. Now that the culture is opening to a gender spectrum, the pressure is on all levels of correctional administration and staffing in all types of correctional facilities to respond with policies that protect transgender persons’ human rights, and advance with case law precedents.