Transgender in Prison

Prosecutors employ many strategies to convict defendants, using everything from hard evidence like DNA to less reliable material like eyewitness testimony. But what about using one's sexual identity against them?

One group that has been unfairly treated by our justice system's inability to come into modern times is the transgender community, composed mainly of  people of color from low-income backgrounds. According to the Transgender, Gender Variant and Intersex (TGI) Justice Project in San Francisco, at least 1-in-2 transgender people have been imprisoned or jailed at some point in their lives. This group, which has limited protections under state and federal laws, is thus subject to all the crazy twists and turns the U.S. justice system takes.

Alexander L. Lee, the legal director for the TGI Justice Project, said the relationship between wrongful convictions and the use of transphobia to convict his clients is greatly understudied. It comes down to LGBT people not being given equal access to fair trials because of homophobia, transphobia, and prosecutorial misconduct.

"I have had clients who were subjected to homophobic and transphobic prosecution strategies in their trials.  I had one client who was a transgender man, and he was accused of a crime involving fraud.  His transgender status was used against in him in court, as the victims and the prosecution made arguments in court saying his living as male was 'proof' that he was an inveterate liar," he told me. "I have had other transmen clients where, during their criminal trials, their gender expressions were made into an issue by prosecutors seeking to make my clients seem more 'predatory' to juries."

So what's going on in your state? There is no uniform policy on how to treat transgender people in prisons or jails, but all localities use genitalia as the way to determine one's sex when deciding whether to put someone in an all-male or all-female facility. This means that transgender women who are pre-op or non-op (as many are because surgery is very expensive), are treated as men even if they've lived as women for decades. Same for transmen.

Let's take a look at one state: California. Dr. Lori Kohler, a Professor of Clinical Family and Community Medicine at University of California, San Francisco, estimates that there are 400 transgender women (male-to-female) inmates in the Golden State, and only one transgender man (female-to-male). The state's total prison population is 175,000 inmates. Kohler, who runs a network of health care projects in California prisons that specifically caters to trans folks, said there is no right answer in determining how to deal with trans inmates.

"The real challenge is that you can make some of the people happy some of the time, but we can't assume that women's prisons are the best place for transgender women," she says. "There are many who would like to have a single cell and just be with other transgender women, there are some who would like to be in the women's prison, and there are some who like being in the general population. It all depends on what lifestyle people have developed in the prisons."

Regardless of where the trans population in California is placed, the outcome is not good. One study, completed in 2007 by the University of California Irvine's Dr. Valeria Jenness, concluded that 59% of California's transgender prisoners reported being sexually assaulted, compared with 4% of the general prison population. The California Department of Corrections, which funded the study, has not refuted its findings.

A result of these findings was California Assembly bill 382, the LGBT Prisoner Safety Act, which passed May 11 in the state's lower house 64 to 9.  The bill, introduced by Assemblymember Tom Ammiano (D–San Francisco) and sponsored by Equality California, aims to prevent violence against lesbian, gay, bisexual, and transgender people in the state prison system. “All people deserve basic protections – including those serving time in our state prisons,” Ammiano said.  “No prisoner should fear for his or her life or be the target of abuse because of his or her sexual orientation or gender identity.”

This bill may not solve the problem of hate against trans folks, but it is a start. For Lee, the legal director at the TGI Justice Project, he points policy makers to New South Wales in Australia. The prison policy there regarding trans people is to use gender identity as the primary classification factor, rather than genitalia. This means that pre-op or non-op, transwomen are treated as women, no question about it.