By: Caroline Witz

When Lady Jae was sentenced to 27 years to life at the age of 27, she already identified as a woman. She was assigned to a men’s prison, however, and remains there to this day. Because Lady Jae has elected not to undergo gender confirmation surgery, she will not be transferred to a women’s prison under California state law. Instead, many trans people (especially trans women) stay in facilities meant for the sex they were assigned at birth, where they face astronomical rates of sexual violence, repeated misgendering by prison personnel, extended placement in solitary confinement if they are designated as a “safety risk,” and lack of access to basic necessities to affirm their gender.

In May of 2018, the Department of Justice under President Donald Trump released new guidelines on incarcerated transgender individuals in federal prisons. Whereas previous policy recommended that individuals be housed according to their gender identity when appropriate, the DOJ’s change notice uses “biological sex as the initial determination for designation,” using health and safety risks, behavioral history, and “management and security of the institution” when considering possible reassignment to gender-appropriate facilities, which “would be appropriate only in rare cases” when an individual has made significant steps towards medically transitioning. The new criteria also restrict transgender individuals to exclusively “necessary” medical treatment.

These regulations, in tandem with slow, inefficient, and often capricious third-party medical providers contracted by state and federal prisons, mean that these regulations essentially sentence trans prisoners twice: they deal with the usual ills of incarceration, plus the complications of serving that sentence in prisons meant to house an entirely different population, without necessary security and healthcare infrastructure.

A California decision, Quine v. Beard, required the state to pay for gender confirmation surgery and provide access to commissary items which were available in women’s prisons to a transgender inmate. While several state courts have handed down similar rulings requiring state prisons to provide gender confirmation surgery for inmates who meet specified standards, very few inmates in these states are able to access such care. In response to Quine, California made their medical restrictions even more profound, requiring inmates who wish to undergo surgery to remain on hormones for years and have their need adjudged “necessary” by facility personnel through a long process. The Transgender Law Center provides anecdotes about prisoners who have to undergo inappropriate questions, genital inspections, or sexual violence, only to be denied hormones or psychiatric care. Unable to proceed with a medical transition, these prisoners may choose to buy hormones off of other inmates. At the point where prison healthcare providers are the ultimate arbiters of what is “necessary,” it is all too easy to disregard decisions like Quine by simply choosing not to hand down a proper diagnosis or treatment plan. Even more pressing is the way in which such decisions enshrine medical transition as the only experience for trans individuals. Many people, like Lady Jae, would elect not to undergo such procedures. Under even the most progressive prison policy in the United States, these people have two choices: undergo invasive and lengthy medical and psychological intervention, or continue to be uncomplicatedly charted as their assigned gender for their term of incarceration.

These policy changes, coupled with an administration which is increasingly friendly to attacks on the rights of incarcerated people (either by creating new law or allowing institutions to disregard existing law) place trans prisoners in a precarious position. Proponents of such policy changes rely on age-old “safety” arguments that paint transgender people, especially transgender women, as rapists, predators, and interlopers in women’s spaces. At the end of the day, these attitudes are the most toxic element: not only do they undergird policies in prisons, they also create tenuous employment situations for trans people, lead to pronounced financial insecurity, and place transgender individuals under heightened scrutiny from police. When trans people can still be fired at will based on their gender identity, when a disproportionate number of trans women rely on deeply criminalized survival sex work to support themselves, when transgender people are denied basic rights and resources in their daily lives—they are placed in a prison pipeline alongside other vulnerable groups. Destroying these barriers in prisons, then, are not just about ensuring incarcerated trans people are provided basic necessities: it is necessary to ensure trans people are not incarcerated unjustly in the first place.

 

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.