Identity

Trump's Prison Guidance Puts Trans Inmates at Greater Risk of Abuse

Prisons are now instructed to consider "biological" sex before gender identity when designating placement for transgender prisoners. Advocates warn the move will immediately endanger trans people in prison.
Phot by Chip Somodevilla / Staff via Getty Images

On Friday, the Trump administration released a new guidance that instructs federal prisons to prioritize the "biological sex" of transgender inmates when determining whether they should be housed with men or women.

This is an alteration to an Obama-era guidance meant to create safer environments for transgender people in prison. The previous version of the Transgender Offender Manual stated that housing for trans inmates should be determined "by gender identity when appropriate." That line has now been scratched out. The new manual mandates that “biological sex,” or the gender that inmates were assigned at birth, is now to be used as the “initial determination” for housing.

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The alteration was made in a federal document that provides guidelines for the Transgender Executive Council (TEC), a group of professionals from various prison–related institutions who have historically been tasked "to ensure the Bureau of Prisons properly identifies, tracks, and provides services to the transgender population." The Trump administration has added a caveat to that mission statement, directing the TEC's recommendations for trans inmates to be "consistent with maintaining security and good order in federal prisons."

The subtext to that amendment is clear: that services provided to trans inmates may compromise prison security or disrupt "good order." The Trump administration is implying that the proper treatment of trans inmates may cause harm to cisgender prisoners. The new manual is filled with such implications—under Trump, for instance, the TEC must now consider whether placing a trans woman in a women's prison would violate the "privacy" of other inmates. The "trauma" of other inmates must also be considered before the TEC recommends a trans inmate to be housed in a facility in accordance with their self-identified gender.

The implications of this policy are extremely dire for incarcerated transgender people. According to statistics from the Bureau of Justice, more than a third of trans people who are locked up experience sexual assault. Similarly, a 2011 survey by the National Center for Transgender Equality found that 34 percent of Black transgender inmates had reported sexual abuse in prison.

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"This new policy is yet another attack on trans existence, this time in the context of the Bureau of Prisons," Chase Strangio, an attorney with the ACLU who represents transgender interests across the country, tells Broadly. "We are exploring all possible responses, including federal court action, to minimize the devastating and immediate harm this will cause prisoners who are transgender."

Under the Prison Rape Elimination Act, correctional facilities are required to evaluate transgender inmates on a case-by-case basis when deciding where to house them. “One of the ways that the law has responded to minimize that risk is to consider a prisoner's own view of where they would be safer and to actually make placements based on gender identity," explains Strangio. The Trump administration’s new policy "undermines" the work that has been done to protect transgender people who are incarcerated, placing them at risk for abuse, he adds.

The change is reportedly a response to a lawsuit filed by four evangelical Christian women in a Texas prison in August of 2017. The women claimed that Obama's trans-affirmative guidance was “a politically-driven agenda to affirm that gender identity theory, rather than biological sex, is the normative basis to determine whether an inmate is male or female.” These inmates argued that allowing trans women in women's prisons ”creates a situation that incessantly violates the privacy of female inmates; endangers the physical and mental health of the female plaintiffs and others, including prison staff; [and] increases the potential for rape.”

Crudely characterizing trans women as sexually predatory, mentally ill men is old hat for Christian extremists—but it is disturbing to see that the concerns expressed in this lawsuit—privacy, safety, trauma to cisgender inmates—are now reflected in federal government guidance.

"There are already so many barriers to justice for transgender prisoners, and we will not sit back idly while this administration attacks our community," Strangio says. "The language of 'biological sex' is again being deployed to suggest that trans people are threats to others just by existing. This is contradicted by medicine, science, and a robust body of case law, and these discriminatory actions won't stand. But in the interim, we know that this does serious harm to our trans siblings inside, and we will work tirelessly to ensure that people are supported."