DoJ guidelines clarified 2012 regulations requiring prisons to consider gender identity of transgender inmates, who are far more prone to violence and abuse

This article is more than 4 years old

This article is more than 4 years old

The US Department of Justice released new guidelines Thursday prohibiting corrections agencies from placing transgender inmates into men’s or women’s units solely based on their anatomy at birth.

Federal regulations have required prisons and jails to consider transgender inmates’ gender identity since 2012 – and those prisoners’ views on where they would feel safest. However, most agencies continue to have blanket policies or practices that put inmates in cells based on their genitalia.

The change was applauded by civil rights organizations as an important step forward in protecting the safety and dignity of a highly vulnerable population – one far more likely to be raped while behind bars than other inmates.

“Advocates have long been pushing for this clarification in order to make agencies take seriously the health and wellbeing of transgender people in their care,” said Chris Daley, deputy executive director of Just Detention International.

The new guidelines come on the heels of a report from the civil rights group Human Rights Watch demonstrating that transgender inmates in federal immigration detention are at high risk of sexual assault, repeated strip searches and indefinite solitary confinement.

Adam Frankel, coordinator of HRW’s lesbian, gay, bisexual and transgender rights program, said the new guidelines are a start but that the change “doesn’t go far enough”.

“We would encourage them to prohibit these kinds of dangerous placements,” Frankel said, “which, their own research demonstrates, create an extraordinarily high risk for transgender people in prison and blatantly disrespect their gender identity.”

The National Inmate Survey, conducted by the federal Bureau of Justice Statistics, estimated that 4% of state and federal prison inmates and 3.2% of jail inmates reported being sexually victimized by other inmates or staff during the previous year.

That same survey, released in 2014, showed that 34.6% of transgender inmates in prisons and 34% in jails reported being sexually assaulted during the same time frame.

The Prison Rape Elimination Act was signed into law by then president George W Bush in 2003. Regulations implementing the law were finalized in 2012 and require that housing decisions regarding transgender inmates be made on a case-by-case basis.

According to the guidelines posted Thursday, “any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing or programs based solely on their external genital anatomy violates the standard.”



The Department of Justice did not respond to requests for comment.

“The new guidance, posted online today by the National PREA Resource Center, sends the clearest message yet that current housing practices in prisons and jails are in violation of PREA and put transgender people at risk for sexual abuse,” Just Detention International and the National Center for Transgender Equality said in a joint statement.

It “makes clear that housing transgender people based solely on sexual anatomy is not ‘case-by-case’,” the organizations continued.

Harper Jean Tobin, NCTE director of policy, said a complete list of federal regulation violators “would include probably every state department of corrections”.

Transgender detainees at high risk of assault in US immigration facilities Read more

Massachusetts, for example, has a prison policy, that reads as follows: “An inmate who is committed to the Department shall be placed in a gender-specific institution according to the inmate’s biological gender presentation and appearance.”

As a result, she said, transgender women are most often housed in men’s units, which places them at high risk for sexual assault.

“Whatever else one might say about our incarceration or people sentenced to it,” Tobin said, “rape is never part of the punishment. And yet it has become far too common – and has been for decades – for transgender women.”