Two days before the inauguration of Donald Trump, the federal Bureau of Prisons quietly released a new employee manual laying out a variety of protections for transgender inmates.
The document, which was posted on the BOP website without fanfare, mandates specialized training for federal prison guards on how to treat transgender inmates, says trans inmates should be allowed to shower separately from other inmates, and requires that housing placements give "serious consideration" to transgender inmates' own sense of where they might be safest.
Many of these policies were already in effect as a matter of practice, but the new manual makes them clearer for guards and prison staff—and perhaps more likely to be followed. Jennifer Levi, a project director at the LGBTQ legal rights group GLAD, says that's important because current treatment of transgender inmates varies widely across the federal prison system's roughly 150 facilities.
"It's pulling together a range of policies in one place," Levi explains. "Transgender inmates are currently facing inconsistent treatment across the country, between different facilities and even different staff members… So I look at this as a positive step to making sure these policies get implemented."
The Bureau of Prisons said in a statement that the manual had been in progress for a long time. "BOP has been working on establishing official guidance on this issue for nearly three years," a spokesperson told me.
Of course, the manual's release can also be seen as a last-minute effort to lock in protections for trans inmates before the Trump administration took over. Jeff Sessions, Trump's nominee for attorney general, is a staunch opponent of LGBTQ rights. If confirmed, he will oversee federal prisons across the country and could start to roll back some of these policies.
"I'm very concerned," Levi said. "There's a huge amount of misunderstanding and bias toward transgender people who are incarcerated, and that potentially gets much worse when there are leaders who have disregard of civil rights and civil liberties."
Transgender inmates in the federal system face severe challenges including subpar healthcare services and highly elevated levels of sexual abuse. In a 2011–2012 survey conducted by the Bureau of Justice Statistics, more than one in three trans inmates in state and federal prisons said they had been sexually assaulted within the last year, compared to only about one in 25 inmates among the overall population.
However, trans inmates won important rights and protections over the course of the Obama years. In 2011, a lawsuit brought by a federal inmate represented by Levi led to the BOP allowing inmates to receive individualized gender dysphoria treatments like hormone therapy. Previously, the bureau's "freeze-frame" policy prevented inmates with gender dysphoria from getting any treatment regimen that they hadn't already started when they entered prison.
The Trump administration will have a tough time erasing hard-won protections like that, which came from a court settlement. "That can't just be wiped off with the stroke of a pen," Levi told me.
Check out President Obama's visit to a federal prison as documented by VICE.
The regulations in the manual aren't radical and reflect the growing consensus of corrections leaders around the country, according to Harper Jean Tobin, the director of policy at the National Center for Transgender Equality. "The BOP is right in line with federal law and regulations and where the field is going," Tobin said. "I suspect this is not going to be seen as something highly controversial within the bureau—this is something we would expect is going to stick around."
The release of the manual also came just a day after President Obama commuted the sentence of the most famous transgender inmate in America, Chelsea Manning, who was convicted of leaking state secrets to WikiLeaks. Manning was serving a 35-year sentence in a military prison—which is not under the jurisdiction of the BOP—and the harsh life she faced as a trans woman living in a men's prison helped galvanize support for her cause. It also brought more visibility to transgender inmates around the country, advocates say.
Under Obama, the Justice Department's Civil Rights Division also intervened in several cases involving state inmates, urging courts to guarantee them medically required treatment and other rights.
Will that kind of proactive civil rights enforcement continue under Trump when it comes to the most vulnerable people in America's prisons? Early indications suggest that's unlikely—the new boss of DOJ's Civil Rights Division, John M. Gore, was one of the attorneys who defended North Carolina's transphobic bathroom bill in federal court.
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