Times have changed for corrections. The old ways of thinking have given way to new issues, such as how to manage special inmate populations, ranging from dealing with seriously mentally ill inmates to pregnant females. More is known now about special management inmates, thanks to ongoing research and intervention by the courts.
One of the most challenging special management populations confronting corrections personnel and management is transgender inmates. The old approach of placing an inmate in segregation because a male inmate identifies as a female or vice versa will not comply with changing views and practices, from both the courts and correctional personnel. In addition, ridiculing, harassing or verbally insulting transgender inmates (e.g., using words such as “he-shes,” “shims,” “trannies”) is now not only considered unprofessional and cruel, but can subject the facility to liability.
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 with sexual identity issues, they must treat such inmates properly and with respect.
Staff must accept that corrections practices are changing in this area, and they must adapt to changing times.
This is the first of a two-part article on the challenges and solutions of dealing with transgender inmates. In part 1, I’ll review LGBTI definitions and characteristics of transgender people, as well as policies regarding screening, classification and housing. In Part 2, I’ll explore case law regarding the treatment of transgender inmates and what correctional agencies can do to avoid costly litigation concerning transgender inmates.
Sexual Identity Definitions
In the past several decades, the civil rights movement in our nation has broadened to include not only African Americans and other people of color, but also lesbian, gay, bisexual, transgender, queer/questioning and intersex sexual identity groups. Of these, the transgender inmate has presented the most difficult challenge for correctional facilities due to the traditional model of separating inmates by gender. The transgender person defies such classifications, wholly identifying with a gender different than what they were assigned at birth. This identification extends to dress, the way to address them, name, behaviors, social skills and more.
Jails and prisons have no control over the type of inmate—mentally ill, gang member, hard-core or first-timer—who comes in. The same is true for inmates who are gay, bisexual or transgender. Yet correctional facilities are obligated to provide for the safe and legal care of all inmates.
Let’s start with some definitions:
- Gay is attributed to males who prefer sexual relations with males.
- Lesbian (or also gay) is attributed to females who prefer sex with females
- Bisexual is attributed to people who have sexual relations with either gender
- Intersexual is defined as individuals, due to a discrepancy between the internal and external genitals, have components of both male and female genitalia.
- Transgender is a general term describing individuals who display behaviors, including dress, appearance, etc., that vary from the gender they were assigned at birth. Recently, this has become a challenge for correctional facilities as transgender inmates have demanded that housing assignments and medical practices be modified to accommodate them.
- Queer is an umbrella term some people use to describe sexual orientation or identity that doesn’t conform to dominant society norms. Identifying as queer may also mean the individual is questioning or is unsure about his or her sexual identity.
There are several acronyms used as umbrella terms to describe these sexual orientations; in this article, I’ll use LGTBI.
Unique Risk Factors of Transgender Inmates
Life can be difficult for transgender individuals, exposing them to harassment, unemployment and medical challenges.
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
- Suicide thoughts of attempts were higher among trans men, respondents 44 years of age and younger, and American Indiana or Alaskan natives
- Lower educational attainment, unemployment and lower income all increased the prevalence of suicide thoughts or attempts.
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 general population. In the National Transgender Discrimination Survey:
- Respondents were nearly four times as likely to have an annual household income of less than $10,000 than the general population.
- 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, mistreatment or discrimination at work
- Those who expressed a transgender identity or gender non-conformity while in grades K-12 reported high rates of harassment (78%), physical assault (35%) and sexual violence (12%)
- 26% reported having lost a job, which in part contributes to the fact that respondents to the survey experienced unemployment at twice the rate of the general population
- 22% of respondents who have interacted with police reported harassment by police
- 16% of respondents who had been in jail or prison reported being physically assaulted and 15% reported being sexually assaulted
- Respondents reported much higher rates of HIV infection, drug and alcohol use, and smoking than the general population
These findings can assist correctional staff in being more attentive to transgender inmates and gender-nonconforming people. As a jail veteran, the bottom line is this: Life is tough enough for transgender people on the outside; just think how jail and prison can make life even tougher. I worked with many professional and upstanding colleagues. However, if some (certainly not all) officers are mistreating LGTBI offenders, the consequences can range from death by suicide, victimization from inmates, depression and in some cases litigation.
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, suicide and rejection. Staff must be aware of not only mistreatment of LGTBI inmates from unethical staff or inmates, but also signs of internal turmoil the inmate may be feeling. Observations of these inmates and communication with them and among staff are critical.
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 LGTBI 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.
Correctional staff must not equate inmates who are LGTBI with promiscuity. Many follow the institutional rules prohibiting sexual activity and exercise both discretion and maturity. Like most inmates, they do not want any trouble—just to do their time and be released. In other words, an LGTBI inmate is not going to turn the housing unit into a “sex club.”
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 and any 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 find it amusing to harass transgender inmates.
That said, housing and supervising transgender offenders is not easy. Gay, lesbian and bisexual inmates are generally housed according to their birth gender. Housing transgender offenders presents the greater challenge to the staff. Some facilities house them according to birth gender or what genitalia they have. Others house in accordance with the inmate’s preferences.
With passage in 2003 by Congress of the Prison Rape Elimination Act (PREA), standards were written to guide correctional staff with housing and safe custody. Correctional officers should be aware of the purposes of PREA. PREA standards address such issues as medical care, housing and classification concerning inmates with sexual identity issues.
All safe housing begins with good screening by the facility intake personnel: booking, classification, medical, mental health and confinement. A good intake interview asks the inmate 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 is in the LGTBI group, careful examination must be given to his or her fears, depression, anxieties, etc.
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:
- Physical build
- Previous incarcerations
- Extent and nature of 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 perceived to be gay, lesbian, bisexual, transgender, intersex or gender nonconforming
In addition, the inmate must be asked if he or she has experienced sexual victimization.
Good communication and classification systems, where information is shared and acted upon, can be of great benefit. Post-to-post and shift-to-shift pass-on of information is one of the keys to a well-run correctional facility.
All housing assignments inside a facility should be made with the mindset of “separating the predators from the prey.” This mindset is regardless of sexual identity, and all staff must work together to keep LGBTI inmates safe from predatory violent inmates. There are in-house rules against sex in the facility, so sexual preference should not be a concern.
The correctional facility cannot place LGBTI inmates in dedicated housing solely on the basis of their status or identification.
Standards that address housing have a central theme—ensuring the safety and wellbeing of the inmate. 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 the possible victims away from possible predators.
PREA also requires housing decisions to be made on an individualized, case-by-case basis concerning transgender and intersex assignment to male or female housing and programs and stipulates housing decisions concerning transgender and intersex 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.
Of note here is that the correctional facility cannot place LGBTI inmates in dedicated housing solely on the basis of their status or identification. 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 shall not 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 allows for the separation from the inmate 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 afford a review every 30 days. This procedure is 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 the inmate’s 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.
The Sarasota County Example
How do the standards PREA sets forth carry out in the real world? The policy of the Sarasota County (FL) Sheriff’s Office Corrections Operations and Services Bureau provides some insight. The policy addresses the transgender inmate issue in a proactive way, promoting safety, concern and respect. PREA standards are closely followed. Highlights include:
- At admission, the inmate will complete 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.
- Although the inmate will be identified by their chosen gender and name, they will be entered into the jail’s database using their legal name and gender.
- Intersex and transgender inmates will be issued jail clothing based on their preferred genders.
- Classification and medical personnel will screen and assess using PREA guidelines.
- Concerning housing, transgender or intersex inmates may be housed according to the gender they identify with, rather than their birth genitalia.
- When placing inmates into male or female housing, several things are considered by classification and the operations bureau commander, including:
-Whether such placement would benefit the safety and health of the inmate.
-Whether such placement would present security problems or management problems. Classification staff may house transgender or intersex inmates according to birth genitalia if they determine it’s needed for facility safety and security.
- LGBTI inmates can file grievances to have their housing assignments re-evaluated.
- Jail adjustment is important; the jail staff may contact and consult identified members of the LGBTI community to provide resources and support to the inmates.
The Sarasota County Sheriff’s Office approach to LGTBI inmates embodies a concept of “rightful policing.” Rightful policing is not only for police officers on the street, it applies to corrections—a branch of law enforcement that has a slightly different “beat.” Rightful policing depends primarily on the procedural justice and fairness of the law enforcement officer; it encourages the officer to act in a way that people and inmates feel safe. Also, rightful policing is about how law enforcement officers, including correctional officers, can promote fairness and respect. By doing so, inmates can feel both respected and safe in a tough environment.
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 can apply 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. These inmates must be kept safe and free from sexual victimization, harassment and assault. 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 corrections staff must ensure they receive need 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.
- CorrectionsOne. (June 15, 2010) How should correctional facilities manage transgender offenders? An interview with Jail Risk Management Consultant Donald Leach. Retrieved 3/21/20 from https://www.correctionsone.com/correctional-healthcare/articles/how-should-correctional-facilitiesmanage-transgender-offenders-qoQcRbhxnE3Obfz5/.
- American Psychological Association. Definitions Related to Sexual Orientation and Gender Diversity in APA Documents. Retrieved 3/21/20 from https://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf.
- Herman J, Brown T, Haas A. Suicide Thoughts and Attempts among Transgender Adults: Findings from the 2015 U.S. Transgender Survey. American Foundation for Suicide Prevention, Williams Institute of Law, University of California School of Law. Downloaded from https://williamsinstitute.law.ucla.edu/publications/suicidality-transgender-adults/
- Grant J, Mottet L, Tanis J. (2011) Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force. Retrieved 3/28/20 from https://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf
- Matthews K. (April 16, 2018) NYC jails to accommodate transgender inmates. CorrectionsOne. Retrieved 3/21/20 from https://www.correctionsone.com/treatment/articles/nyc-jails-to-accommodate-transgender-inmates-qIjCepUnUHDeMfub/
- Sarasota County (FL) Sheriff’s Office Corrections Operations and Services Bureaus. Policy # CO 440.04. Subject: Gender Identification Care and Custody. Effective Date 07/01/2017. Special thanks to Lt. Jay M. Doyle for providing this policy to the author.
- Meares T, Neyroud P. (February 2015) Rightful Policing. New Perspectives in Policing. Washington, D.C.: U.S. Department of Justice, National Institute of Justice. NCJ 248411. Retrieved 3/28/20 from https://www.ncjrs.gov/pdffiles1/nij/248411.pdf.