The Trump administration has rolled back federal guidelines on the housing of trans prisoners following months of speculation.
On Friday night, the Bureau of Prisons (BOP) released an updated Transgender Offender Manual claiming that federal agencies “will use biological sex” as the main consideration when determining the placement of trans prisoners. Under these guidelines, a transgender woman who was assigned male at birth would be housed in a men’s unit.
The document claims that a trans inmate would only placed in accordance with their “identified gender in rare cases.”
As reported initially by BuzzFeed, these changes effectively reverse earlier guidelines enacted under the Obama administration which advised prisons to determine the placement of trans prisoners on a “case-by-case basis.” Introduced in 2012, the previous policy instructed officials to make assessments based on the “inmate’s health and safety” and “whether the placement would present management or security problems.”
Prior to leaving office in 2016, President Obama issued further guidance to ensure that “transgender inmates can access programs and services that meet their needs as appropriate” and that staff members have appropriate training to “work effectively with transgender inmates.”
It also adds that trans prisoners should be “given the opportunity to shower separate from other inmates” in order to prevent attacks.
But INTO reported in January that these guidelinespassed just days before Trump’s inaugurationwere under threat due to a lawsuit out of Fort Worth, Texas. Four women claimed they were subjected to unlawful “gender discrimination” after being housed with trans women.
Plaintiffs Jeanette Driever, Rhonda Fleming, Charlsa Little, and Brenda Rhames argued the placement constituted “cruel and unusual punishment” and violated the 8th Amendment to the U.S. Constitution.
Fleming, a Trump voter sentenced to three decades behind bars for health care fraud, alleged in court filings that her “bodily rights [were] violated.” The lead plaintiff claimed that she was “humiliated and degraded every day so that men that identify as women can be comfortable.”
The women, however, were kept in a separate building from the trans prisoners in question. They had almost no interaction with them.
While the Trump administration did not promise to erase the Obama guidelines as a result of the court case, the White House stated it would be watching the outcome closely. In an amicus brief filed in the U.S. District Court for the Northern District of Texas Wichita Falls Division, the administration pledged to “evaluate the issues in this case and how the challenged regulation and policies apply to Plaintiffs.”
LGBTQ advocates say the White House’s conclusions in that case are a direct violation of the 2003 Prison Rape Elimination Act, which states inmates must be assessed in regards to their risk of being targeted for abuse or sexual assault.
“The extreme rates of physical and sexual violence faced by transgender people in our nation’s prisons is a stain on the entire criminal justice system,” claims National Center for Trans Equality (NCTE) Executive Director Mara Keisling in a statement. “Instead of leaving the existing policy alone, the administration is clearly prepared to encourage federal prisons to violate federal law and advance its own inhumane agenda.”
“The decision to disregard a transgender person’s gender identity is harmful and disrespectful,” adds HRC Government Affairs Director David Stacy.
“This unconscionable decision ignores medical expertise and defies common sense,” Stacy says in a press release. “Transgender people under the control of the Bureau of Prisons will face greater risk of violence and discrimination.”
Studies show that transgender women placed in men’s prisons are 13 times more likely than other cisgender inmates to experience sexual assault.
These realities are especially stark for trans women of color, who are jailed at extremely disproportionate rates. The national LGBTQ advocacy organization Lambda Legal reports that black transgender women are three times more likely than other trans people to have served time in prison: One out of every two black trans women has been locked up at some point in their lives.
This population reports extreme violence behind bars. Ashley Diamond sued the Georgia Department of Corrections after being raped at least seven times by other inmates and staff members at the prison.
Advocates say, however, that putting trans inmates at further risk of violence and harm is consistent with the administration’s larger reversal of LGBTQ rights. Just weeks after taking office in 2017, the Departments of Justice and Education rescinded Obama-era guidelines advising teachers and faculty to allow trans students to use the restroom which most closely corresponds with their gender identity in schools.
More recently, the White House announced it would be creating an office in the Department of Health and Human Services (HHS) known as the Division of Conscience and Religious Freedom. That office’s mission is to protect the right of healthcare workers to deny services to trans people if they cite faith-based objections.
“Transgender people already know the Trump-Pence administration is dedicated to stripping away our rights,” Keisling says. “Their cruelty is only made more evident as they continually go after the most vulnerable among us.”
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