The Uphill Battle to Make Prison Safer for Trans Women
Even as their advocates win victories in court, trans inmates remain vulnerable to violence from their fellow prisoners and indifference from a system that does not understand their needs.
In a landmark decision earlier this month in the case of trans woman Ashley Diamond, Georgia eliminated its "freeze-frame" approach to gender transition, which mandated that trans prisoners could take the medication they were using prior to their arrest, but couldn't continue or start to transition while behind bars.
It was an unquestionable victory for trans rights, but Diamond's struggle is not over—on Monday, a federal judge refused to transfer her to a lower-security facility out of deference to prison authorities.
Although the response to Diamond's case has been remarkable, even receiving front-page coverage in the New York Times, this latest ruling shows that questions remain about just how much change is needed to accommodate those who wish to transition on the inside.
In February, Ashley Jean Arnold—a transgender woman held at a men's federal facility in Virginia— committed suicide, reportedly after being denied access to comprehensive gender-affirming care. Since Arnold was a direct beneficiary of the 2011 elimination of "freeze-frame" policies in federal prisons, her death raises questions about the limits of the recent steps taken by the Department of Justice. What's more, the Justice Department defended the Bureau of Prison's treatment of Arnold in response to her case by arguing that honoring the medical needs of incarcerated trans people might stand at odds with maintaining institutional safety and security.
As courts across the country take up lawsuits brought by trans people on the inside, Arnold's life and death raise questions about whether it is possible accommodate prisoners' transitions without fundamentally altering the gendered structure and culture of America's prisons.
At the time of her suicide, Arnold was incarcerated at Federal Correctional Facility Petersberg, a medium security facility located about 30 miles south of Richmond, Virginia. Her long bid—25 years—was a result of the serious nature of her crime, namely a 2008 guilty plea to a charge of producing child pornography.
According to court documents reviewed by VICE, it was only once she was incarcerated that Arnold received a diagnosis of gender identity disorder. But from the beginning, it seems, Arnold believed she was receiving inadequate medical care—and that this negligence was leading to her psychological deterioration.
In a lawsuit filed against prison officials in July 2013, and amended in September of last year, Arnold alleged that she had been denied access to a range of treatments consistent with the internationally accepted Standards of Care established by the World Professional Association for Transgender Health's (WPATH). Court documents reveal that prison officials rebuffed Arnold's repeated requests for access to female undergarments and brassieres, makeup items, voice therapy, a male anti-balding medication, and sex reassignment surgery.
The lawsuit also outlined the many delays Arnold faced in receiving hormone replacement therapy. Although Arnold was eventually placed on hormones in January 2014 (about six months after the suit was first filed), the process took nearly two years. Like Diamond, Arnold and other incarcerated trans women have argued that their limited access to gender-affirming care constitutes an Eighth Amendment violation, which bars cruel and unusual punishment and mandates the provision of adequate medical treatment to prisoners.
The judge in Arnold's lawsuit dismissed the case in December 2014, finding that prison officials had provided her with "constitutionally adequate treatment" and had acted without deliberate indifference to her medical needs. Some legal advocates, though, believe that Arnold's suit had merit. Jennifer Orthwein is a Pro Bono Counsel with the Transgender Law Center, a nonprofit that has provided legal support and advocacy to transgender people, including those who are incarcerated. She reviewed Arnold's court documents at the request of VICE.
"[Arnold] desperately sought to receive treatment for her gender dysphoria and acknowledgment of her gender," Orthwein said via email. "Instead, nearly all her efforts were ignored, obstructed, delayed, or denied based on incompetence, indifference to her serious medical need and outright bias."
While it is impossible to determine whether the dismissal prompted Arnold's suicide—she left no note explaining her actions—in court documents Arnold openly asserted that her patterns of self-harm and suicidal ideation were linked to her lack of care.
Trans women incarcerated in men's facilities can end up in solitary confinement simply for possessing feminine items.
Her suicide may also be linked to the alleged retribution she faced as result of filing the suit. According to jailhouse lawyers Christopher Zoukis and Sangye Rinchen, both imprisoned at FCI Petersburg, Arnold faced sexual harassment and retaliation from prison officials in the time leading up to her death. Zoukis has published articles about Arnold's suicide on Prison Legal News and the Huffington Post.
Although Arnold appealed the District Court's decision to the Fourth Circuit just weeks before her death, the case will be dismissed unless next of kin pursue it on her behalf. VICE contacted the Department of Justice and the Bureau of Prisons to inquire about Arnold's lawsuit and the circumstances surrounding her death. Both offices declined to comment.
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Trans people behind bars face distinct barriers. According to Orthwein, it is the specific nature of the prison environment that makes the experiences of trans people so painful. "Gender dysphoria, which is marked by symptoms like depression and suicidal ideation, is not something that all transgender people experience, but rather reflects the distress transgender people feel when they're not allowed to live as their authentic selves," she told VICE. "Prison, where gender is suppressed and transgender identities are ignored or attacked, is an environment that is practically built to exacerbate dysphoria and cause transgender people extreme harm."
Trans women incarcerated in men's facilities can end up in solitary confinement simply for possessing feminine items. In the amendment to the lawsuit, Arnold recounts how officers searched her possessions during a compound-wide shakedown. They located bras, panties, makeup items, hair accessories, nail polish, and pantyhose in her cell–a serious violation, since she did not have explicit permission to have the items. As punishment, Arnold was sentenced to 30 days in the disciplinary segregation, the special housing unit (SHU).
In Arnold's case, as well as several others, the security threats allegedly created by these things seem to stretch the bounds of credulity. In their motion to dismiss Arnold's suit, lawyers for the Bureau of Prisons stressed the Warden's concern "that inmates can wear makeup to disguise themselves and escape from prison."
In an environment that is strictly governed by rules and regulations, some prison officials may believe that trans women's requests will undermine institutional safety or security.
Security concerns also played a role in the First Circuit's December decision to deny sex reassignment surgery to Michelle Kosilek, a trans woman locked up in Massachusetts. In his dissent, Judge Ojetta RogerieeThomson compared the decision to Plessy v. Ferguson and Korematsu v United States —perhaps the most infamous Supreme Court decisions on the books. The case has been appealed to the Supreme Court.
As case law evolves, questions remain about how to alter the policies and procedures that govern trans women's lives. Valerie Jenness, Dean of the School of Social Ecology and a professor of criminology, law, and society at the University of California, Irvine, has written extensively on the experiences of trans women behind bars. In a telephone interview with VICE, she said that pushback from some correctional officials is not necessarily a reflection of bigotry, but can be traced to the paradoxical question of how to house trans or gender-nonconforming people in facilities that are segregated on the basis of genitalia. In an environment that is strictly governed by rules and regulations, some prison officials may believe that trans women's requests will undermine institutional safety or security.
"After years of filing, and taking a case to court, four transgender inmates are now beginning hormone therapy, myself included!" –Ashley Jean Arnold, before her suicide
There have been small victories in improving the lives of trans people behind bars. In early April, a federal judge in California ruled that the state's Department of Corrections must provide sex reassignment surgery to an incarcerated trans woman named Michelle-Lael Norsworthy.
But access to gender-affirming care is just one of the issues faced by incarcerated trans people, for whom sexual violence at the hands of prisoners and guards, and the routine use of solitary confinement for "protection" and punishment, can be daily realities.
Transgender people continue to resist the legal and societal barriers they face as a result of their gender identity. Jason Lydon is the founder of Black & Pink, an organization that aims to build support between LGBTQ people across prison walls, primarily through a pen-pal scheme. "When transgender prisoners fight for access to hormones, underwear, makeup, and any other moments of gender self-determination they are fighting for an individual and collective power to refuse the gender based violence of the prison system," he told VICE.
Arnold published a brief letter in the July 2014 Black & Pink newsletter. "I am writing to share with everyone a long-awaited victory at our institution," she wrote. "After years of filing, and taking a case to court, four transgender inmates are now beginning hormone therapy, myself included!
"We want to publish this story to inspire everyone not to give up—keep fighting; the war is far from over but this is a major battle won. Keep your heads up!"
A little over six months later, on February 24, 2015, Arnold hung herself in her prison cell. She was 32.
UPDATE 4/24: An earlier version of this article mistakenly referred to sex reassignment surgery as "sexual reassignment surgery" in two places. This error has been corrected.
Aviva Stahl is a Brooklyn-based journalist who writes about prisons, particularly the use of solitary confinement and the experiences of terrorism suspects and LGBTQ people behind bars. Follow her on Twitter.