Corrections is an inherently challenging environment. While jail standards and laws tend to be written in stark directives, the complexities of the real world require correctional administrators and officers to balance competing priorities. The presence of transgender inmates in our facilities creates some of the most vexing challenges.
In an earlier article, I reviewed policies regarding screening, classification and housing of transgender inmates. In this second article, I’ll explore case law regarding the treatment of such inmates and what correctional agencies can do to avoid costly litigation concerning transgender inmates.
Case law involving transgender inmates tends to group into two categories: cases involving harassment and assault and cases involving transgender inmate medical care—specifically, hormone treatments and sex reassignment surgery.
Accusations that the facility failed to protect an inmate against harassment or assault are not limited to transgender inmates, of course. But transgender inmates present a higher risk for victimization—a risk that can rise if the inmate is placed in housing according to the gender they were assigned at birth.
In 2018, the Texas Department of Corrections (TDOC) reached a settlement with Lambda Legal, a nonprofit LGBTI and HIV advocacy group, in the case of a transgender female inmate. The inmate claimed prison staff did not adequately protect her from sexual and physical abuse while housed in a male facility; when she complained, she was advised to “stop acting gay” in order to prevent future sexual assaults.
Trainers and supervisory staff must emphasize that political views or biased personal views about LGTBI inmates are not to influence staff actions.
Despite dozens of grievances, attacks, complaints and requests, prison staff kept the inmate in general population, in near proximity to her assailants. After she told staff which inmates had threatened her, an inmate called her a “snitching faggot” and slashed her face eight times with a razor. This settlement included both a monetary award and the provision that the TDOC would update its policy to do more to protect LGTBI inmates. Texas now adheres to its Safe Prisons/PREA Plan, dated February 2019. When deciding to assign a transgender or intersex inmate to a male or female unit, or making other housing and programs decisions, the decisions will be on a case-by-case basis. Staff will consider the health and safety of the inmate, plus potential management and security problems. The inmate’s housing status will not be solely based on his or her LGTBI status. In addition, the housing and program assignments of intersex and transgender inmates will be reassessed semi-annually to address any problems. Correctional facility staff will consider seriously the inmate’s own views about his or her own safety.
An even more challenging area of the law involves the struggle of transgender inmates to get correctional staff to diagnose them with gender dysphoria and obtain the medical care they desire. Inmates cannot pick or choose their type of medical treatment, and generally, courts will defer to the judgment of the facility medical staff.
According to the American Civil Liberties Union, courts are beginning to opine that inmates undergoing hormone therapy and medical treatment for gender dysphoria when incarcerated cannot have such treatment abruptly discontinued unless there is a serious, clear medical reason for ending it. One federal ruling stated, “Taking measures which actually reverse the effects of years of healing medical treatment…is measurably worse [than failing to provide such treatment in the first place].” Correctional staff get into legal “hot water” when they fail to realize that transgender inmates do have limited legal protections, they are to be kept safe and their medical needs must be met.
In February 2020, the 9th U.S. Circuit Court of Appeals ordered the state of Idaho to pay for an inmate’s sex change or gender confirmation surgery, upholding an earlier lower federal court ruling that denial of the surgery amounted to a violation of the Eighth Amendment. By doing so, it became the first circuit in the U.S. to rule that transgender surgery must be paid for by the state. Idaho is appealing the ruling to the U.S. Supreme Court on the basis that such surgery is medically unnecessary.
A clear indicator of what may be coming are the Michelle-Lael Norsworthy and Shiloh Quine cases in California. Michelle-Lael Norsworthy is a transgender female inmate who was paroled from the California state prison system in August 2015. Prior to that, a federal judge ordered the state of California to provide her sex reassignment surgery. Although motions were filed to vacate the decision due to the parole, sex reassignment surgery is covered under California’s state Medicaid plan. The parolee is eligible for the surgery.
As with all inmates, correctional staff want to make incarceration for transgender inmates a positive experience.
Another transgender inmate, Shiloh Quine, is serving a sentence of life without parole for first-degree murder, kidnapping and robbery. In court filings, a psychologist noted Quine had undergone counseling and has consolidated her female identity. She unsuccessfully petitioned the California Department of Corrections and Rehabilitation (CDCR) for surgery and medical care. She attempted suicide several times. Due to her case going before the same judge as the Lael-Norsworthy case, the CDCR settled and agreed to provide Quine both the surgery and housing in a female corrections facility. In addition, the state’s transgender inmates will have access to gender-specific items, including makeup. The CDCR will review its policies of medical treatment and surgery for gender-dysphoria.
However, not all courts who have dealt with this issue have concluded sex reassignment surgery should be provided to inmates. In March 2019, the 5th Circuit issued a divided and lengthy opinion rejecting a transgender female inmate’s request for sex reassignment surgery, noting “the medical community is deeply divided about the necessity and efficacy of sex reassignment surgery” and adding that medical experts “profoundly disagree about whether sex reassignment surgery is medically necessary to treat gender dysphoria.”
These lower court decisions may influence litigation filed in higher state and federal courts, including the U.S. Supreme Court.
Strategies to Reduce Liability
As with all inmates, correctional staff want to make incarceration for transgender inmates a positive experience, with safety, services, getting along with other inmates, work and programs all serving to keep the inmates in a positive frame of mind. Condescension, harassment, physical and sexual assault, fear, depression and anxiety results in a negative experience, leading to the possibility of harm to the inmate or legal action against the facility.
There are no simple answers to addressing the challenges presented by transgender inmates, but this does not mean correctional officers are powerless. Documentation is key; correctional officers should document as much as possible interactions, services provided and decisions concerning transgender and intersex inmates.
In my earlier article, I noted the practices of the Sarasota County (FL) Sheriff’s Office with regard to transgender inmates. This facility’s approach shows that simple steps can go a long way, including:
- Respecting privacy as much as possible, especially around showers, changing clothes, sleeping and use of toilets. Exceptions include staff incidental viewing during routine checks or special observation checks. Exigent circumstances apply, such as medical emergencies, fights, suicide attempts, etc.
- Referring to inmates by their last name, chosen name and gender.
- In strip search reports, including the inmate’s birth and preferred gender.
- Developing a Search Preference form that is signed by the inmate and outlines the search tactics that will be followed.
A more foundational approach to the challenge of transgender inmates is through the creation of different housing models. One option for correctional facilities is to create open-type housing units in the facility general population. After careful screening and assignments, inmates who are vulnerable to sexual abuse can be housed with inmates who may be vulnerable for other reasons. This would decrease segregation and provide housing beneficial for LGTBI inmates, without segregation solely based on gender identity and sexual orientation. Providing programs and services would be face to face, rather than through a cell door window. This approach may gain in popularity, as it meets Prison Rape Elimination Act (PREA) standards for normal environment and access to programs.
In February 2020, the 9th U.S. Circuit Court of Appeals ordered the state of Idaho to pay for an inmate’s sex change or gender confirmation surgery.
Larger facilities may be able to develop transgender housing units, an approach that has been used in the New York Department of Corrections.
Complicating the housing question is that transgender inmates often request protective custody. This can make the situation easier on staff, but in some facilities, segregation space is limited, and administrators may want to reserve as many cells as possible for serious problems such as escape risks, violent and assaultive inmates, seriously mentally ill inmates and security threat groups (e.g., gangs).
Training is essential to safely maintain custody of transgender inmates and is another critical strategy for limiting liability. Inmates are encouraged to report signs of sexual harassment, misconduct and assault, and staff cannot “brush them off.” This means any staff having contact with inmates must not only look out for their safety, but also inform them of mechanisms inside the facility for reporting problems to staff.
PREA standards are clear. Standard 115.31 mandates training for all staff having contact with inmates on sexual abuse, sexual harassment, staff sexual misconduct and communicating with inmates with gender issues. This standard also requires training for staff on fulfilling their responsibilities under agency policies and procedures concerning sexual abuse and sexual harassment prevention. Included are policies and procedures in prevention, detection, reporting and responding. Additional issues include dynamics of sexual abuse when incarcerated, reactions of victims and communicating effectively with them.
Training will be tailored to the gender of the inmates at the facility, and additional training will be required in cases where staff is transferred from a male-only facility to a female-only facility, and vice versa. Employees who have not had the training shall receive it within one year of the effective date of the PREA standard, plus refresher training every two years. In the years when no refresher training is given, the agency shall provide additional refresher training on current policies on sexual abuse and harassment. Thus, training must be continual and contain up-to-date information.
Standard 115.32 requires that volunteers and contractors receive training in their responsibilities under the agency’s policies and procedures on prevention, detection and response. In addition, all volunteers and contractors having contact with inmates are notified of the agency’s zero tolerance policies. At the Sarasota County Sheriff’s Office, for example, all staff receive PREA training and education, including communicating with and searching LGTBI inmates, within one year of employment. Refresher training is presented every two years. The Sarasota Sheriff’s Office also requires courts and correctional divisions to develop training and provide information to staff about developmental, societal and family challenges of LGTBI inmates.
Effective management of transgender inmates requires staff to abide by changes in policies due to statutory and case law. In briefings and training classes, supervisors must make very clear that PREA guidelines, case law and statutes will be followed—without exception
With training about LGTBI inmates comes common sense. Trainers and supervisory staff must emphasize that political views or biased personal views about LGTBI inmates are not to influence staff actions. The priorities are safety, privacy, medical care, mental health care and communications with respect. All inmate accusations of sexual misconduct and assault-from other inmates or staff-must be thoroughly investigated by trained investigators, under PREA guidelines. By performing duties in this manner, it is possible to avoid costly liability.
The times are changing. More attention is now given to the safety, medical needs and mental health needs of LGTBI inmates in correctional facilities. Gone are the old attitudes of telling a gay inmate to “man-up” or making jokes about inmates in the showers. LGBTI inmates must be respected during the routine duties of the correctional facility, such as searches and checks. Only then can they be expected to grant correctional officers respect in turn.
Transgender inmates will continue to pose challenges to our jails—this is an evolving area of the law and within society as a whole. As correctional officers attempt to navigate the complex real-world scenarios involving transgender inmates, effective policies, training and a culture of mutual respect are critical—both to reducing liability associated with transgender inmates and to ensuring their safety.
- McCullough J. (March 15, 2018) Texas prisons to update LGBT policy after lawsuit from transgender inmate who was beaten, raped. The Texas Tribune. Retrieved 3/21/20 from https://www.texastribune.org/2018/03/15/texas-prisons-update-lgbt-policy-after-lawsuit-transgender-inmate-who-/
- Texas Department of Criminal Justice, Correctional Institutions Division. (February 2019) Safe Prisons/PREA Plan. Retrieved 4/18/20 from https://www.tdcj.texas.gov/documents/cid/Safe_Prisons_PREA_Plan.pdf
- Cleary P. (July 2015) Transgender and Behind Bars. Nevada Lawyer. Retrieved 3/21/20 from https://www.nvbar.org/wp-content/uploads/July2015_Transgender-Behind-Bars.pdf.
- St. Amand A. (February 12, 2020) Idaho to fight order to pay for inmate’s gender surgery. Retrieved 3/21/20 from https://mtstandard.com/now/today/idaho-to-fight-order-to-pay-for-inmate-s-gender/article_7f5ce012-91da-55c4-8501-7da6d45f53f7.html.
- Schwartzapfel B. (August 10, 2015) What Care Do Prisons Owe Transgender Inmates? The Marshall Project. Retrieved 3/21/20 from https://www.themarshallproject.org/2015/04/21/what-care-do-prisons-owe-transgender-inmates
- Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019). Retrieved 3/21/20 from https://caselaw.findlaw.com/us-5th-circuit/1904260.html.
- 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.
- Hastings A, Browne A, Kall K et al. (April 2015) Keeping Vulnerable Populations Safe under PREA: Alternative Strategies to the Use of Segregation in Prisons and Jails. National PREA Resource Center. Retrieved 3/21/20 from https://www.prearesourcecenter.org/sites/default/files/library/keepingvulnerablepopulationssafeunderpreaapril2015.pdf.