Fifteen years ago, a senator from Alabama carried a bill that changed the game for transgender prison rights. The senator was Jeff Sessions, and the bill was the Prison Rape Elimination Act (PREA).
It’s the same law Sessions’ Department of Justice is working to undermine today. Last month, the Trump administration announced new guidelines under the Bureau of Prisons (BOP) that sought to house transgender inmates according to their sex assigned at birth, instead of their identified gender.
Now, legal advocacy organizations say they are looking into legal action to block the policy.
The rule change is the result of a lawsuit out of Fort Worth, Texas brought by four cisgender prisoners who claimed that housing them with trans women constituted “cruel and unusual punishment.”
The Transgender Offender Manual now states that “only in rare cases” should a trans inmate be housed based on their identified gender over their sex assigned at birth. It confuses that matter, however by using language in PREA, stating that a trans person’s safety should be considered and decisions will be made on a case-by-case basis.
But despite the muddled language, the intent is clear, say advocates. Per the new rule, transgender women will be automatically housed with men. Transgender men will be housed with women. Non-binary people will have their options stripped away in federal prisons.
The policy is a direct affront to PREA, the federal law requiring prisons to house trans inmates on a case-by-case basis with special consideration for their safety and self-identified gender.
“The Prison Rape Elimination Act is binding on the federal bureau of prisons system,” said Richard Saenz, criminal justice and police misconduct strategist at Lambda Legal. “So we believe that the recent changes to the Bureau of Prisons transgender offender manual violate PREA as well as the constitution.”
Saenz said Lambda Legal is reviewing all possible legal options for challenging the rule.
Ian Thompson, a legislative representative for the American Civil Liberties Union, echoed that statement on behalf of his organization, “including federal court action,” he added.
The two organizations are among more than 100 to sign onto a letter this week to Federal Bureau of Prisons Acting Director Hugh Hurwitz, urging a reversal of the policy and a recommitment to PREA.
The six-page letter argues that the new policy exceeds BOP’s authority by violating federal law.
“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,” the letter argues.
The policy not only faces opposition in court. One who takes particular exception to it is Virginia Congressman Bobby Scott, who sponsored PREA in 2003.
“The Trump Administration’s action violates the spirit and intent of the Prison Rape Elimination Act by unfairly and unnecessarily putting transgender inmates at a higher risk of sexual assault,” Scott said in statement to INTO.
Saenz worries that the new BOP policy will also muddy the waters around PREA compliance beyond federal prisons.
“It sets a dangerous precedent that we hope states do not take this as a green light to implement some harmful changes,” he said.
Despite PREA, transgender prisoners have faced extraordinary high rates of violence behind bars in the U.S. A California study found that transgender inmates were 13 times more likely to be sexually abused behind bars than cisgender people.
The Colorado Department of Corrections is refusing to house transgender inmate Lindsay Saunders with women despite pleas from her attorney and local lawmakers. She has reportedly been sexually assaulted twice in custody and faces daily abuse from her peers and prison staff.
The Philadelphia Department of Corrections is likewise facing difficult questions over its decision to house a transgender woman arrested at Pride with men earlier this month.
Challenges to those placements could become more difficult now that the Department of Justice has confused the rule of law, say advocates.
“At a minimum, it sends the completely wrong message,” said Thompson. “I think the clearest evidence is really just pointing to what can only be described as an anti-trans bigotry that animates the actions of this Department of Justice.”