Stories have repeatedly emerged this year over the poor treatment of transgendered offenders within prisons both in the UK and the US. In the last six weeks, two deaths have occurred in British jails. Beyond the individual cases, however, the issue brings into sharper focus how ill-equipped justice systems are to cope with the needs of offenders — and why so many end up back inside.
The evidence is serious. One British woman who completed her transition in prison, told VICE News she was raped by a male offender with permission of a prison officer. She believes a gate to the shower block was deliberately left open.
In a recent report by the US Department of Justice, 40 percent of transgender prisoners reported sexual victimization in state and federal prisons, compared to 4 percent of the general population. In the US, we heard reports of people told they were "asking for it" by officers, and when they finally did get protection it was in solitary confinement, which in itself is a human rights abuse with a high risk of depression and self-harm.
Crucially, many trans people shouldn't be in prison at all. They are over-represented in the system. In the US, as many as 50 percent of black trans people have been incarcerated. Those who spoke to VICE News said that persistent discrimination was behind these numbers. Attorney Demoya Gordon of Lamda Legal, a legal organization dedicated to the legal rights of LGBT people, said: "People not in the know think they're inherently bad, not law abiding people, in reality, so many trans people, especially of color are disadvantaged when it comes to education, housing, and healthcare and it makes it harder, it drives them into what we call crimes of survival."
There are around 80 to 100 transgendered people in British prisons, although the true number is hidden due to poor reporting. By UK law, a trans person is held in the prison that matches the gender identity on their birth certificate or a Gender Recognition Certificate, which you can apply for after living in your acquired gender for two years. Neither Vicky Thompson or Joanne Latham, found dead in their cells within weeks of each other this year, held this certificate and so had been sent to the male estate.
However, the law also says that someone who is transgender can ask to be put in the prison of the opposite gender, regardless of their certificate and in these cases it was clear the offenders had been living as women. It took a nationwide petition signed by over 150,000 people to get 26-year-old make-up artist Tara Hudson moved out of the male estate. "They would call me 'chick with a dick,' 'trannie,' I even heard one say, 'It should be shot.'" Hudson said. She also described an over-sexualized environment where she feared she would be raped.
Helen D has been campaigning on this issue for nearly 15 years, and was the first openly trans woman working for the UK Probation Service. "If a transperson is moved to a men's prison, there will be a case conference, but it's an assessment not science. It's a best estimate. Sometimes you get the risks wrong."
In response to these high-profile cases, serious consideration is being given by the government to the rights of trans people within the prison system, and evidence is currently being heard. Speaking in the House of Commons, Cat Smith, shadow minister for women, told a harrowing story of a transgender woman she was in touch with, who is so desperate that she injected bleach into her testicles and attempted to surgically remove her scrotum herself.
Jenny Anne Bishop is a British campaigner who has dedicated her life to supporting trans rights since her own transition, and is part of a forum that advises the government. She would like to see a dedicated wing in the UK for both trans men and women, where medical treatment could be accessed and support groups allowed in.
One British woman who completed her transition in prison, told VICE News she was raped by a male offender with permission of a prison officer
Helen disagrees. She doesn't believe a dedicated unit for less than 100 people is feasible, and the distance this would place most offenders from family and friends would also place them at a huge disadvantage. She feels that prisons just need to improve, so that, "If someone is living as a female, there is a clear assumption they go into a female prison."
But Bishop told VICE News she believed decisions made by the Ministry of Justice over where to house trans prisoners were not easy. Part of the problem it faces is that a transperson's body often doesn't "match" their gender identity. Transitioning often takes many years, and the degree to which someone decides to physically transition varies widely.
"It's not as black and white as putting men in men's prisons, and females in female prisons. There may be problems. It's a big risk to put a man with a female body into the male estate."
In the US, the problem is more profound. There, a culture of brutality by officers towards inmates as a method of control is widespread, and it won't change until individual states take allegations of abuse seriously.
The most important piece of legislation that would protect the rights of trans prisoners is the Prison Rape Elimination Act (PREA), which requires US states to "take measures to eliminate sexual abuse of people in custody." But it's up to individual states to adopt the act, and it has not been enacted where it's most needed.
In Texas, Lamda Legal has successfully fought on behalf of Passion Star, a transwoman who endured repeated sexual abuse and extortion across seven different facilities. "She was told repeatedly she was bringing it on herself, and that she'd need to fight, have sex, or perform sexual acts in order to be safe," Gordon told VICE News. Texas has refused to enact PREA as it insists its own legislation already provides for the safe treatment of offenders.
Jesse Lerner Kinglake at human rights group Just Detention International says the organization gets nearly 2,500 letters a year detailing sexual abuse in prison, and a fifth are from Texas inmates.
PREA provides for an assessment of the best place to put an offender, including considering their own opinion. But Gordon told VICE News the vast majority of states make their decision on gender inspection by unqualified staff. Passion Star was placed in a male prison and denied treatment for her gender dysphoria. Gordon says many facilities have a blanket rule of no treatment, which can be a harrowing experience as bodies start reverting back to their former state.
Cases are mirrored across the world. In New Zealand, there is an investigation underway in response to allegations of rape of a transwoman in a men's prison in South Auckland, run by British contractor Serco. She had been placed in the mainstream prison population; her alleged assailant was her cellmate, with whom she was double-bunked.
January 22, 2016 will be the first annual Trans Prisoner Day of Action — an international event in solidarity with trans prisoners.
It's not just in prison that abuse occurs, it's a systemic prejudice that runs through the justice system. Private contractors are a particular problem, as they don't answer to the same code of practice as prison officers.
Earlier in 2015, an inspection of Sussex and Surrey court facilities in the UK observed a transgender detainee being called "the thing" and "it" by a custody officer while waiting to appear in court. The officer had been hired by private company GeoAmey, which in 2011 won a government contract to provide prison escort and custody services in an agreement worth up to 900 million pounds ($1 billion) over 10 years. It is under fire for its hired "officers" allowing offenders to escape, driving vans with the back door open, and telling people in their care they only have "the right to breathe."
For transgendered people in the immigration system, conditions can be worse, as the work of detention centres are not subject to the same level of public scrutiny that prisons are.
"Trans people are very vulnerable in detention. They are isolated, and targets for abuse, bullying and harassment," said Paul Dillane, executive director of the UK Lesbian and Gay Immigration Group which represents around 1,500 LGBT asylum seekers. Dillane told VICE News that people from their own country or region often mete out the abuse, the same that they are trying to escape from.
_"_I spend 20 hours a day in my room. I can't come out, when I do they laugh at me. They point and laugh because I am trans," said Farah, who is seeking asylum from Iran, in a statement presented by Dillane to the parliamentary enquiry collecting information into equality for transgender people, including within the criminal justice system. Dillane is pushing for that to include the asylum system. Ultimately, he wants the number of asylum seekers put into detention greatly reduced, with a time limit put on their stay.
'A lot of trans people are in prison for very violent offences, a lot of them caused by frustration'
Adam is a 23-year-old trans man who sought asylum from Egypt where he had experienced horrendous human rights abuses. "I think I would be dead if I had stayed in Egypt. I was abused on a daily basis; the threat of torture and rape was very real. People would grab me on the street to see if I was a man or a woman," he said. "I was refused asylum three times. At first I didn't even have a lawyer. The Home Office refused to believe that I am trans, they treated me like a liar. They continuously referred to me as a woman. I felt like they were attacking me." Dillane told VICE News that trans people are regularly refused asylum on the grounds of not being able to prove their gender identity.
Yet the public mood is increasingly sympathetic to the plight of trans people within the justice system. In the US this may reflect public awakening over lawless, prejudiced, and aggressive police behaviour towards other groups, most obviously towards black men. But the public and politicians are also waking up to the fact that incarcerating ever-increasing numbers of people and then not giving them a chance to improve their chances in life is a huge cost to society, even on purely economic terms.
"A lot of trans people are in prison for very violent offences, a lot of them caused by frustration. If you are excluded from society, and verbally and physically abused you don't care what society says," said Helen. She recounted a story of someone she had worked with, who while attending hospital for treatment, was laughed at by staff. She threw items around the room and was put on probation, but Helen believes she was provoked. If another crime is committed, especially a violent one (Hudson headbutted a bar manager) the person may end up in prison.
Helen said support on the inside and outside is vital. Of 20 trans offenders she helped support over 8-10 years, only two or three reoffended within two years, when the UK national statistic is 50 percent. "We'd show them that being trans wasn't just about being excluded from society."
But Helen also admitted that cost-cutting within the justice system could scupper more forward-thinking work, especially of prison governors. Bishop mentioned an initiative on the UK's Isle of Wight where a wing had been dedicated just to trans offenders with visits from local support groups and specialist medical support. When that governor left, the incoming one got rid of it and mixed everyone up again.
"Most trans people's lives improve after transition," said Bishop. She is a firm believer that it's in the economic interest of governments to put trans offenders in the right prison and support them through transition. "If you treat trans prisoners better, they are less likely to reoffend, and isn't that what prison is about?"
Follow Cat McShane on Twitter: @CatMcShane