There was a promise in the federal Prison Rape Elimination Act.
Transgender people would be housed not according to their sex assigned at birth, but according to where they would be safest. Every placement was to be made on a case-by-case basis.
It passed in Congress unanimously in 2003 and in 2012, the U.S. Department of Justice finally issued rules for its implementation that were hailed as a landmark for trans prisoners, who are 10 times more likely to be sexually assaulted behind bars than the general population.
“While PREA does allow each facility and each agency to make their own interpretation of what they believe is appropriate housing and complying with PREA, it is still very clear on what you can do and when you cannot do while entering into that assessment determination,” said Mateo De La Torre, racial and economic justice policy advocate at the National Center for Transgender Equality (NCTE).
Among those rules is that transgender people cannot simply be placed based on their anatomy or sex assigned at birth. A prisoner’s own feelings of vulnerability have to be weighed in the decision about where to place them. LGBTQ people cannot be segregated from the general population simply because they are LGBTQ.
But despite PREA guidelines, the Colorado Department of Corrections (CDOC) has not imprisoned a single transgender woman in a women’s facility.
“We have not seen it necessary to place trans females in female prisons,” Mark Fairbairn, public information officer for CDOC, told INTO in an email.
According to Fairbairn, CDOC currently has 116 transgender women in its custody. All of them are housed in male facilities.
That fact raises questions about Colorado’s compliance with PREA. The state is currently battling prison abuse allegations by transgender inmate Lindsay Saunders-Velez, who has been repeatedly denied transfer to a women’s prison despite three reported sexual assaults.
Richard Saenz is a senior attorney and criminal justice and police misconduct strategist at Lambda Legal. He said Colorado’s practice of placing all transgender women in male facilities raises a red flag.
“If a state system is complying with what PREA requires, where all of the transgender women who are in their custody are only being housed in male facilities, I would be interested in knowing what the transgender committee uses [as criteria for placement],” Saenz said.
Asked how CDOC met compliance while placing all trans women in men’s facilities, Fairbairn stated that the department evaluates all requests on a case-by-case basis.
“Usually concerns can be mitigated at the facility level or by transfer to a different facility,” he said. Fairbairn added that the department had not found it necessary to house transgender females with females.
Mara Keisling, the executive director of NCTE, notes the individual consideration of each case mandated by PREA allows for transgender people to have a say in where they will be safest.
“Some of it might be they don’t want to make trouble, and they think it’s a trick question,” said Keisling. “Maybe they’ve already been in the jail. They feel like know it better and they don’t want to go through all sorts of nonsense with the women in jail challenging whether or not they’re real women. Then there’s a lot who feel they can use their transness and their feminity to get protection or companionship [in a men’s] facility.”
Still, It remains unclear why CDOC has not moved Saunders-Velez, who has repeatedly asked to be transferred. Fairbairn did not make a CDOC spokesperson available for further questions.
Saunders-Velez’s story has parallels with that of Strawberry Hampton, a transgender inmate in Illinois who just won an emergency decision that requires the Illinois Department of Corrections to train its staff on transgender issues and re-evaluate her placement in a men’s prison.
In May, Saunders-Velez’s story made national headlines because hours after federal Judge Marcia Krieger denied her emergency request to be moved, she was reportedly raped. It was her second sexual assault in custody, she claims.
The Associated Press noted that following the second assault, Saunders-Velez’s medical records showed rectal and other injuries. A nurse who treated her said her assailant might be HIV-positive.
Days later, Colorado lawmakers brought forth a non-binding resolution that called on CDOC to adopt a policy for protecting transgender inmates that aligned with federal standards. The resolution mentioned Saunders-Velez by name.
Saunders-Velez was reportedly raped a third time in August. She remains in a men’s prison.
Asked how Colorado remains PREA compliant without moving Saunders-Velez, Jacque Montgomery, a spokesperson for Governor John Hickenlooper, deferred questions to CDOC.
Montgomery previously told INTO, however, that the state is fully compliant and that all of Saunders-Velez’s complaints have been investigated.
Montgomery furnished investigations into two of Saunders-Velez’s allegations. In the first investigation, the inspector concluded that Saunders-Velez lied because DNA evidence collected did not match that her accused assailant.
The second investigation determined that Saunders-Velez had consensual sex because she reportedly flirted with the perpetrator before the attack.
“At first, [the accused] denied any sexual assault activity but later recanted his story stating that they did have sex but it was consensual,” the report stated.
Research has found that false reports of sexual assault are very rare. Experts note that many survivors don’t report because of the scrutiny they fear from law enforcement, their communities, friends, and families.
CDOC has been facing allegations of misgendering its transgender prisoners for at least two years. In 2016, transgender detainee Jayde Moonshadow filed suit against CDOC for refusing her gender-affirming personal products and undergarments.
Moonshadow’s initial 23-page handwritten complaint reported that her back and neck hurt her because CDOC wouldn’t issue her a bra. She noted that while she was on hormones, she also wanted hair removal. Moonshadow’s case was settled this fall.
According to Fairbairn, the 116 transgender women CDOC currently has in custody included 94 women on hormones. The remaining 22 are waiting to have their request for hormones reviewed by a gender identity committee, have had their requests deferred or don’t want hormones, Fairbairn said.
Saunders-Velez’s case is ongoing, and her attorney Paula Greisen says she has met with around 30 of the trans women incarcerated by CDOC and claims that stories like Saunders-Velez’s are the norm, not the exception.
“Most of these women are living with the fear of sexual assault, rape or the threat of some sort of violence related to their gender identity status while in prison,” said Greisen. “The stories are heartbreaking.”