The Trump Administration is violating federal law and the U.S. Constitution with a new policy to house transgender inmates based on “biological sex,” said 67 members of Congress.
In a letter to Acting Director of Prisons Hugh Hurwitz in late July, the members demanded the Bureau of Prisons (BOP) walk back new guidelines that aim to house transgender inmates according to their sex assigned at birth.
The letter suggests that BOP is violating the Prison Rape Elimination Act (PREA), after BOP made changes to its Transgender Offender Manual in June, mandating “only in rare cases” should a trans inmate be housed based on their identified gender.
The new policy stems from a Texas lawsuit brought by four cisgender prisoners who argue that it is “cruel and unusual” to house them with trans women.
Under PREA, transgender inmates are to be placed on a case-by-case basis, and their safety is supposed to play a crucial role in those decisions.
The American Civil Liberties Union and Lambda Legal are exploring lawsuits over the new BOP policy, which advocates have argued violates PREA because it default houses all transgender people based on biological sex without regard for their safety.
The letter from members of Congress echoes that sentiment.
“We are gravely concerned that the undefined term ‘biological sex’ will function in practice as a moving target, one that opens the door to significant discrimination and animus as its meaning is allowed to shape-shift to keep transgender prisoners from ever being housed in accordance with their gender identity in violation of PREA’s standards,” the letter states.
More than 100 advocacy organizations signed on to a similar letter to Hurwitz in June, pressing for a reversal of the new policy and a recommitment to PREA.
“One glaring omission in the revised policy broadcasts the BOP’s intent to completely prohibit housing based on gender identity, disregarding both transgender prisoners’ own perceptions of safety and the studies that confirm the overwhelming risk to transgender prisoners housed based on genital characteristics,” that letter argues.
Virginia Congressman Bobby Scott takes particular exception to the new policy. Scott sponsored PREA in 2003 alongside Attorney General Jeff Sessions when he was an Alabama Senator.
In a joint statement, Scott and New York Congressman Jerrold Nadler charge BOP with knowingly placing transgender prisoners at risk and violating the law.
“BOP has a constitutional requirement to protect the health and safety of all individuals in its charge – including transgender prisoners,” the two lawmakers wrote. “According to the Department of Justice, between 2011 and 2015, incidents of sexual assault tripled in our nation’s prisons, and BOP should be doing more to protect prisoners, not less. These changes to the Transgender Offender Manual should be immediately reversed.”
The BOP declined to comment on the letter.