Mimesis Law
22 September 2019
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DOJ Finally Issues Clarification On Housing Transgender Inmates

Apr. 14, 2016 (Mimesis Law) — Last month, the Department of Justice (DOJ) released an important addendum to their 2012 guidelines aimed at protecting transgender prisoners in state and federal prisons. While the DOJ had already issued guidelines that stated that an inmate’s self-proclaimed gender identity should be a high priority when placing them in gender-specific facilities, the recent clarification explicitly asserts that automatic placement based on anatomy is a violation of federal law. “It states what should be obvious, except almost all our state and local governments are getting it wrong,” said Mara Keisling Executive Director of the National Center for Transgender Equality.

Since 2003, when George W. Bush signed into the law the Prison Rape Elimination Act (PREA), jails and prisons have been required to make decisions about housing transgender and intersex inmates on “a case-by-case basis.” Almost a decade later, the DOJ finally got around to drafting rules implementing PREA. The regulations stated that decisions about housing should be made on a case-by-case basis taking into account an inmate’s health and safety. In addition, the guidelines stated that a transgender person’s preference should carry significant weight in the decision-making process. 

Despite these guidelines, most transgender inmates were still being automatically placed in housing facilities based on their anatomy, with little to no regard placed on their gender identity. “It’s almost as though no one read it,” says Harper Jean Tobin of the National Center for Transgender Equality. Tobin and other advocates lobbied the DOJ to explicitly reiterate their position as, “a reminder that in many cases officials didn’t hear and didn’t get the first time.”

Transgender inmates suffer disproportionate harassment, violence and sexual assault while incarcerated. Federal statistics suggest that about four percent of state and federal prison inmates have experienced sexual assault. However, about 60 percent of trans women prisoners report sexual assaults. In many facilities, officials house transgender inmates in solitary confinement, either as soon as they enter a facility or after they have been sexually assaulted. Many inmates will do anything to avoid the isolation of solitary confinement, even if it means keeping quiet and enduring the abuse.

DOJ’s March 24th memorandum states that, “being transgender is a known risk factor for being sexually victimized in confinement settings. The standard, therefore, requires that housing and programming assignments be made ‘on a case-by-case-basis.’ Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units or programs based solely on their external genital anatomy violates the standard.”

The DOJ acknowledges the fact that, “the decision as to the most appropriate housing determination for a transgender or intersex inmate is complicated” and that several risk factors should be considered before making a placement, such as “an inmate’s security threat level, criminal and disciplinary history, current gender expression, medical and mental health information, vulnerability to sexual victimization, and likelihood of perpetrating abuse. The policy will likely consider facility-specific factors as well, including inmate populations, staffing patterns, and physical layouts. The policy must allow for housing by gender identity when appropriate.” 

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