On Friday the Trump administration announced changes to how transgender people will be housed in U.S. prisons, striking down an Obama-era guideline that recommended “housing by gender identity when appropriate.” Instead, the revised manual recommends the use of “biological sex as the initial determination for designation.” In other words, the preference has shifted from one that respects a person’s gender identity, to one based on physical factors such as genitalia. Here are eight things you should know about what this means and why it matters.
1. Transgender people face abuse in the prison system at exceptionally high rates
The decision under the Obama administration to issue guidelines recommending that transgender prisoners be housed based on their gender identity was introduced under the Prison Rape Elimination Act. It is difficult to overstate the devastatingly high risk for sexual assault that transgender people in prison face, particularly transgender women in men’s prisons. According to a study conducted by UC Irvine in California, 59 percent of transgender women held in men’s prisons were sexually abused, compared with 4 percent of cisgender prisoners in men’s prisons. The National Center for Transgender Equality reported in 2015 that transgender “respondents who were incarcerated were five to six times more likely than the general incarcerated population to be sexually assaulted by facility staff, and nine to ten times more likely to be sexually assaulted by another inmate.”
2. Transgender people are more likely to end up in prison than their cisgender counterparts
In the United States, 2.7 percent of adults have been in prison and 10.2 percent have been under criminal justice supervision, including probation. Among the transgender community, 16 percent, or 1 in 6 people, report having been in jail or prison for any reason.
3. Transgender people in prisons face additional hardships, including massive barriers to obtaining adequate health care
In addition to facing extraordinary levels of abuse in prison, transgender prisoners are faced with a litany of other hardships, including a lack of access to hormone therapy, denial of sexual reassignment surgery, and a lack of mental health treatment and care. This last issue alone warrants far more analysis than is possible in this article, with a shocking 40 percent of respondents to the National Transgender Discrimination Survey (NTDS) reporting they have attempted suicide in their lifetime, almost nine times the national average.
4. Transgender people experience threats to their personal safety at exceptionally high rates outside of the prison system
Of the 28,000 transgender people who responded to the NTDS in 2015, 46 percent reported that they were verbally harassed and 9 percent that they were physically assaulted in the past year alone. Transgender women of color, especially black trans women, experience the most extreme levels of violence. According to analysis by Mic.com, the murder rate for young, black trans women is 1 in 2,600, compared to 1 in 19,000 for the general population. The Human Rights Council has begun tracking and publishing the names of transgender people killed violently. In 2017, the number was 28. To date, in 2018, 8 transgender people have been murdered, ranging in age from eighteen to forty-five. It’s important to note that, due to widespread discriminatory attitudes in the media, violence against transgender people is often not taken seriously, and goes under-reported; the real death toll is likely to be higher.
5. Threats to the safety of transgender people are often compounded by mistreatment by law enforcement
For many in the transgender community, seeking law enforcement assistance when faced with threats of physical and sexual violence is not an option. More than half (57 percent) of transgender people report being somewhat or very uncomfortable asking for police assistance. According to the 2015 NTDS, 58 percent of transgender people who interacted with law enforcement in circumstances where they believe the officer knew they were transgender reported they were verbally harassed, physically or sexually assaulted, or mistreated in another way in the past year. Black, Asian, Latinx, American Indian, and multiracial respondents experienced double discrimination in interactions with law enforcement, reporting harassment and assault by police at even higher rates. One NTDS survey respondent said, “when I began to live in my correct gender, I was stopped by police and forced to strip in public in front of them as well as being verbally harassed, threatened with arrest, and accused of being a sex worker.” In fact, in 11 percent of cases, transgender people reported that officers assumed they were sex workers.
6. Progress on transgender rights in prison has been hard-fought and slow
As highlighted by Robert Sember from The New School at a recent talk hosted by Creative Time, progress on these issues has been slow. In 1994, the Supreme Court’s ruling in Farmer v. Brennan laid the legal groundwork for the introduction and passing of the Prison Rape Elimination Act in 2003, followed by long-awaited regulations implementing the act in 2012. It is these regulations that included the Obama-era change to the Transgender Offender Manual, taking into account a person’s gender identity. These changes were far from perfect, and allowed for decisions to be made on a “case-by-case” basis. This discretion left open a lot of room for poor decision-making at a local level, but were nonetheless an important step in the right direction for transgender human rights in the context of incarceration.
7. Under Trump, transgender rights have gone backwards
As has been widely reported, under President Trump and Attorney General Jeff Sessions, transgender rights have been significantly rolled back and undermined. These rollbacks have occurred around access to education and health care, ability to serve in the military, workplace rights and, now, the right, when incarcerated, to be imprisoned in facilities that accord with one’s gender identity rather than biological sex. The Trump administration will no longer investigate cases of school students denied the right to use the bathroom that aligns with their gender identity; furthermore, it has announced plans to roll back a rule instituted by the Obama administration to prevent discrimination against transgender people by health care providers and insurers. Under an order issued in March, the Trump administration made yet another attempt to exclude transgender people from serving in the military (though court injunctions continue to prevent the implementation of this change), and Attorney General Jeff Sessions declared in October that transgender people would no longer be protected from workplace discrimination by civil rights laws.
8. There are many groups and individuals resisting these attacks on transgender people’s rights
A small but determined coalition of groups is watching and fighting back against the Trump administration’s changes, from the Human Rights Council and ACLU, to the National Center for Transgender Equality, the Sylvia Rivera Law Project, the National LGBTQ Task Force, and many, many more community-based organizations engaged in vital work to protect and expand transgender people’s rights. In the words of Mara Keisling, executive director of the National Center for Transgender Equality, on Friday:
“Transgender people already know the Trump-Pence administration is dedicated to stripping away our rights. Their cruelty is only made more evident as they continually go after the most vulnerable among us.”