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New US Immigration Guidelines on Transgender Detainees Fail to Protect, say Activists

The new guidelines are intended to protect transgender immigrants in US detention centers, but the guidelines are merely suggestions, not requirements, and facilities have to opt-in.
Photo by Juan Carlos LLorca/AP

For the 20 months Marichuy Leal Gamino was locked up in the male wing of Arizona's privately-run Eloy immigration detention center, she was forced to endure nearly daily bouts of humiliation. Gamino, who was born male but identifies as female, was held in detention not for committing any crime, but for seeking asylum in the US from Mexico.

During her detention, she faced constant harassment from the male guards and the wing's 250 men, who called her "faggot" and ripped makeshift shower curtains away from her and fellow transgender women while they washed. One night, Gamino, who had begun transitioning to become female, and had continued to take estrogen hormones while in custody, claimed she was raped by her straight cellmate.


"I know its a detention center and we aren't supposed to get privacy, but they treat us like we're prisoners, like criminals," Gamino told VICE.

Shortly after the alleged rape, Gamino was taken to the detention center's medical facility, where she spent two days recovering before being transferred to solitary confinement, ostensibly for her own protection, she was told. At one point, a counselor tried to persuade her to sign a form saying the rape was consensual, she said.

"When I came back from the hospital after the rape, they put me in segregation," Gamino said. "They call it the hole, you're there 23 hours a day. I was only there for a couple of days because I kept telling them it's like they're punishing me. I couldn't make calls, I couldn't send or receive letters, nothing."

This week, the federal agency responsible for border control and immigration enforcement, the US Department of Homeland Security's Immigration and Customs Enforcement agency (ICE), moved to prevent further incidents like this from happening, recommending in new guidelines that detention facility staff allow transgender detainees the freedom to decide which gender they want to be housed with and what pronouns to use.

"ICE will allow for the placement of a transgender woman consistent with their gender identity, meaning that a transgender woman could be with biological females," ICE's deputy assistant director of custody programs, Andrew Lorenzen-Strait, said Monday, according to the Associated Press.


Under the new guidelines, all transgender people will also be tracked, and the agency will provide training programs for detention staff and directors on the care of transgender people, the first of which is scheduled for August, ICE officials told VICE News.

The reasons behind the agency's sudden policy change is not clear, but it is notable that the announcement came just days after an undocumented transgender activist heckled President Obama at a gay pride event at the White House. The activist, Jennicet Gutiérrez, was escorted out, but continued to voice her concerns about the treatment of immigrant transgender women detained by the US government through the media.

"The violence my trans sisters face in detention centers is one of torture and abuse," Gutiérrez wrote in a Washington Blade op-ed. "The torture and abuse come from ICE officials and other detainees in these detention centers."

Gutiérrez added she had spoken with her "trans immigrant sisters" who revealed "horrendous treatment" experienced during their time in US detention after "seeking asylum to escape threats of violence because of their gender identity and sexuality."

"This is how they're greeted in this country," she said. "At times misgendered, exposed to assault, and put in detention centers with men."

Related: The Reason a Transgender Immigration Activist Heckled President Obama at the White House

Gamino can attest to such treatment. At 23, she bears the mental and physical scars of several violent experiences. Originally from Sinaloa, Mexico, she grew up with her parents in Phoenix, Arizona from the age of six. Her parents have since obtained visas and remain in Phoenix, Gamino said. Three years ago, when she was 20, a drug charge landed her in an Arizona State Prison in Yuma. After serving a year in the prison, authorities deported her back to Nogales, Mexico, where she says was tortured and stabbed because of her transgender identity. She presented herself back at a checkpoint at the Arizona border to claim asylum in May 2013 and was immediately absorbed into the US immigration detention system, which currently houses around 34,000 detainees.


Even after the incidences, Gamino says she never felt greater hopelessness than during the roughly 20 months she spent in Eloy, which is managed by the nation's largest for-profit prison company, Corrections Corp. of America (CCA). Research shows her experiences are not unique.

According to the 2013 Center for American Progress report, Lesbian, gay, bisexual and transgender immigrants are 15 times more likely to face sexual assault in detention. The same report also noted authorities' widespread use of solitary confinement as "protective custody" for detainees in response to claims of rape and other assaults.

Despite ICE's new guidelines, the housing of transgender detainees remains an issue. Activists say ICE's new guidelines on housing and pronoun identification are merely recommendations, and that detention facilities are not required to adopt them. Instead, the detention facilities that want to adopt the guidelines specifically on the housing of transgender detainees can sign a so-called Contract Modification Template, ICE spokeswoman Virginia Kice told VICE News.

The agency predicts only two or three facilities will sign the contract, to accommodate the some 60-70 transgender immigrants currently in detention across the US, many of whom are currently sharing rooms with people of the same biological sex.

Back in April, before the announcement, Kice, told VICE News that "in some instances, gay or transgender detainees may be housed with the general population if, in the agency's assessment, that is the appropriate course of action," according to the agency's policy, but that "such decisions are made in consultation with the detainee."


Kice said that detainees may be segregated for their own protection, but that their sexual orientation or gender identity "may not provide the sole basis for a decision to place the detainee in involuntary segregation." A separate protective custody unit for LGBT people also exists in Santa Ana City Jail in Orange County, California. The facility accepts detainee transfers from outside the state based on the "merit" of their application, and depending if there are enough beds available, she added.

The roughly 25 transgender detainees currently held there "are not considered to be in segregation," Kice said.

But some transgender advocates say that while the new policies on the treatment of transgender detainees are a decent step in the right direction, ICE's policies have "missed the point." The agency's guidance documents still allow for the "inhuman" treatment of transgender people, who activists argue should not be in detention in the first place, including their placement in administrative segregation, so-called protective custody, and isolated pods.

"These guidelines are still failing to protect LGBT immigrants because they're not mandated," Solar Bermudez, Detention Project Director for the Transgender Law Center told VICE News. "It's missed the point of releasing vulnerable populations. As a vulnerable population, transgender people shouldn't be detained, just like women and children shouldn't be detained. As long as they are in detention, transgender women especially, will continue to be abused, raped and harassed."


Related: The US Army Is Retreating From Its Prohibitive Policies on Transgender Soldiers

The Corrections Corp. of America, the company that runs Eloy Detention Center, did not immediately respond to a request for comment about Gamino's treatment while in detention in its facilities. In an earlier statement, a spokesman said that the company has a "zero-tolerance policy regarding sexual abuse and harassment" and that at each of its facilities, staff must complete 160 hours of pre-service training, including on "the dynamics of sexual abuse and harassment, respectful interaction with lesbian, gay, bi-sexual, transgender, intersex, or gender nonconforming detainees, and strict adherence to the Prison Rape Elimination Act."

But Gamino maintains guards at Eloy were poorly trained on the treatment of transgender immigrants. She alleged that at times, guards also failed to stop the abuse she and other transgender women suffered at the hands of male detainees, which she said contributed to her severe depression and at one point led her to attempt suicide.

"They don't have the capability to deal with the LGBTQ community, especially trans women," she said, "Even in state prison, it was way better. There were one or two situations where there were homophobic people, but there was more respect in there from the guards."

Authorities at Eloy eventually closed Gamino's rape case because of a lack of evidence, she said. Since her release from the facility on $7,500 bond this January, she has appealed the decision and is still waiting to hear back. Gamino's immigration case is also currently being assessed by ICE, but that has not deterred her from advocating on behalf of other transgender immigrants still locked up in detention. Even now, after her release, the trauma of her experience lingers.

"I don't want any more trans women to suffer what I suffered in there," she said. "Whatever happened to me, it gave me a lot of power to fight for our rights… but when [the rape] comes back in my mind, I go crazy. I don't know what to do. My life is not the same."

Follow Liz Fields on Twitter: @lianzifields

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