Transgender and in prison: Violence, harassment, and denial of medical care are the norm

“Being a transgender woman is not easy, but being a transgender woman incarcerated with the Department of Corrections is a nightmare,” said Ashley Diamond, who recently settled with the Georgia Department of Corrections after the Southern Poverty Law Center sued on her behalf. Diamond was denied medically necessary treatment and was sexually assaulted by other prisoners while being held in male facilities. “I was mistreated and mishandled from day one when I got off the bus. Everything from my name to being raped. I was ridiculed and brutalized, and I’m still trying to recover from it.”

Unjust: How the Broken Criminal Justice System Fails LGBT People of Color, a new report by the Movement Advancement Project (MAP) and the Center for American Progress, documents the widespread violence and mistreatment of transgender and gender-nonconforming people inside U.S. prisons, jails, and immigration detention centers and investigates the reasons for their high rates of incarceration.

One-fifth of transgender women and 10 percent of transgender men are incarcerated at least once during their lifetime, compared to only 5 percent of all adults. Almost half of black and a quarter of Latinx transgender and gender-nonconforming people are incarcerated at least once, compared to 12 percent of their white counterparts.

“LGBT people of color are pushed to the margins through family rejection, bullying in school, being over-disciplined in school, and employment discrimination and wind up in vulnerable situations,” said Naomi Goldberg, a coauthor of Unjust and the policy and research director at MAP. “This, combined with police profiling and stigma, contributes to this overrepresentation of LGB and transgender people of color in the criminal justice system.”

The report, produced in collaboration with seven other civil rights organizations, points to discrimination and homophobia as root causes. LGBT youth are much more likely to be bullied and harassed physically and emotionally at school, resulting in increased risk of substance abuse, missing school, suicidal thoughts, emotional challenges, and lower aspirations to attend college. Of LGBT youth of color, 79 percent have “interacted with security or law enforcement in their middle or high school years,” states the report. “What happens during these formative years impacts your future,” said Goldberg.

“Quality of life” policing plays a role in the overrepresentation of transgender people in the criminal justice system, particularly for young people. “Trans youth of color who may just be hanging out are subject to profiling and hyper-policing,” said Goldberg. “Trans women, especially transgender women of color, are often profiled mistakenly for being sex workers. Can you imagine how scary it would be to get picked up or pulled over and then put in a county jail as a transgender woman?”

According to Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, by the National Center for Transgender Equality and the National LGBTQ Task Force, unemployment rates are over twice as high for African American transgender people as for their white counterparts. “Transgender people, and particularly transgender people of color, are discriminated against in every aspect of life. This results in people being pushed into survival economies like sex work, making contact with law enforcement more likely,” said Demoya Gordon, staff and Transgender Rights Project attorney at Lambda Legal, the oldest legal LGBT civil rights organization. “Once caught up in the criminal justice system, transgender people routinely have their rights violated. The mistreatment often starts at intake, where officers have been reported to do things like take transgender women’s wigs away and even cut their hair. Transgender people are also often strip-searched for no other reason than to satisfy officers’ curiosity or ostensibly to “verify” the person’s sex, a practice prohibited under the Prison Rape Elimination Act (PREA) guidelines.”

In 2012 the PREA standards—the set of federal rules to prevent and respond to sexual assault and harassment in correctional facilities—were finalized, and they included protections for transgender people. However, around 35 percent of transgender people in prisons and jails report experiencing sexual abuse, compared to less than 5 percent of all those incarcerated.

“When I first arrived, they put me in the same cell as a convicted rapist,” said Diamond. “I’m damaged to the point where it’s difficult for me to leave my house and to be around people.” She was in solitary confinement for nearly two of the three and half years she was incarcerated, a common practice.

“Our prison system is failing badly at keeping transgender prisoners safe,” said Jesse Lerner-Kinglake, communications director of Just Detention International, a sexual assault prevention organization focused on correctional and detention facilities. “Solitary confinement is often ostensibly used to keep transgender people safe, but in practice it’s punitive."

“Transgender people are particularly vulnerable to physical and sexual abuse while detained or incarcerated,” said Gordon. “This was the experience of Passion Star, a black transgender woman incarcerated in Texas who faced horrific sexual and physical abuse while housed in several male prisons. Although she repeatedly begged Texas prison officials for help, they refused to move her into safer housing until Lambda Legal filed a lawsuit on her behalf. Additionally, most departments of correction still default to housing people based on their anatomy without regard for gender identity—another practice the PREA guidelines prohibit.”

The misuse of solitary confinement has “huge repercussions beyond the obvious damage to mental and physical health,” said Mik Kinkead, director of the Prisoner Justice Project at the Sylvia Rivera Law Project, a legal aid organization, When in solitary, “people are often treated as if they are in disciplinary solitary, resulting in only one hour of recreation a day and general limited out-of-cell time,” and are unable to participate in many programs and services.

Until recently, transgender women who are undocumented immigrants were often placed in male detention facilities. While one out of every 500 individuals in immigration detention is transgender, one in five confirmed sexual assaults involves a transgender person. “It’s a horrific experience for transgender people, many of whom are coming here seeking asylum, seeking safety from violence, and they receive that welcome to America,” said Goldberg. “The real question is, Why are we detaining people if we can’t keep them safe?”

The psychological fallout can be long lasting. “I feel more fragile around people than ever,” said Diamond. “Prison isn’t supposed to be a cakewalk, but it shouldn’t have been like this. It needs to be safe. Sexual violence should not be a part of a prison sentence.”

Diamond’s case has had positive ripple effects in Georgia correctional facilities, which increased training for staff and adopted sexual assault policies more aligned with federal policies. And the U.S. Department of Justice filed a brief in the case “reminding departments of corrections that prison officials have the obligation to assess and treat gender dysphoria just as they would any other medical or mental health condition,” said Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division.

“The good news is that we know it is possible to protect transgender prisoners from abuse,” said Lerner-Kinglake. “Through strong policies and safe practices, corrections agencies can protect every prisoner, cisgender and transgender alike, from this violence.”