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Transgender People and The Prison System

By Thomas C. Weiss - 2015-01-30

Summary

One of the questions surrounding transgender prisoners has to do with their housing in a prison facility that is consistent with their gender identity.

"A mechanism that is at times used to protect transgender women who are at risk of violence by being housed in male prisons is to separate them from the other prisoners"

Main Document

Transgender persons who have not had genital surgery are usually classified in accordance with their sex at the time of their birth for purposes of prison housing, despite the length of time they may have lived as a member of another gender and regardless of how much other medical treatment they may have experienced. The situation places male-to-female transgender women at great risk of sexual violence. Transgender persons who have undergone genital surgery are usually classified and housed by their reassigned sex.

A mechanism that is at times used to protect transgender women who are at risk of violence by being housed in male prisons is to separate them from the other prisoners. The action is called, ‘administrative segregation.’ Putting a transgender woman in administrative segregation might; one the positive side, provide her with increased protection over being housed in the general population. Yet administrative segregation also has negative results such as exclusion from:

Transgender Prisoners and Hormone Therapy

Some transgender prisoners have the ability to maintain their hormone treatment while in prison. The policy of the U.S. Bureau of Prisons is to provide hormones at the level the person was maintaining before the person became incarcerated. To be more specific, the policy provides:

A policy to maintain the transgender inmate’s level of change which existed upon admission. If responsible medical personnel determine that either progressive or regressive treatment changes are indicated, the changes have to be approved by the Bureau of Prison’s Medical Director before being implemented. The use of hormones to maintain secondary sexual characteristics may be continued at around the same levels as prior to the person’s incarceration, although such use has to be approved by the Medical Director.

Even if the prison does provide hormones, there is no guarantee that they will be provided at appropriate levels and with the necessary physical and psychological support services. It is often times hard for transgender prisoners to document a prior prescription for hormones; either due to the practical difficulties and limitations imposed by being incarcerated, or because many transgender prisoners are indigent and do not have private doctors who are willing to advocate for them. Even when transgender prisoners do have the ability to provide the needed documentation, prison officials might disregard the policy.

The issue of whether a transgender person is entitled to hormone therapy while they are in a prison has been litigated extensively based upon the established, constitutional principle that it is a violation of the 8th Amendment prohibition on cruel and unusual punishment for prison officials to exhibit, ‘deliberate indifference,’ to a prisoner’s medical needs. Until the last several years, in nearly every case – courts have ruled in favor of prison officials. More recently, prisoners have experienced more success in this regard.

Transgender Prisoners and Privacy

In the State of California, transgender persons who petition for a court order recognizing their name or gender have to appear before a Superior Court Judge. The emotions the petitioner may feel during this process range from fear to exhilaration to boredom. For a person who does not openly identify as transgender, fear over having their petition denied might be compounded by a fear that their transgender status will be revealed to others in the courtroom. It is possible that someone in the courtroom may only know them by the name and gender the petitioner is asking the court to recognize officially. A casual comment by the judge might inadvertently reveal the petitioner.

Questions concerning a petitioner’s previous identity are at times unavoidable in a court proceeding. No one is asking that those inquiries fail to happen. If; however, such revelations are not necessary, the procedure needs to be completed with as much discretion as possible.

The Use of Correct Pronoun and Name

Even though respect is a concern for everyone in a courtroom, it is highly important that transgender persons are shown respect by being addressed through use of their correct name and use of the appropriate pronoun. While this may appear to be a simple thing to do, experiences reveal that it is not always done. In some cases, the gender of the transgender person is contested, or becomes a material issue in the underlying proceedings; more often it is not. Even in cases where a person’s gender is contested, there is no reason why as transgender person should be addressed by an old name or a birth-assigned gender.

A better practice that has been adopted by the majority of courts is to refer to the person by their preferred name and gender. If the person’s gender is an issue in the case, the court may note that using the person’s preferred pronoun is a matter of courtesy and does not indicate how the court will resolve the legal issues in dispute. In practice, it often times happens that a person in a courtroom such as the judge, the court reporter, an attorney, a bailiff or someone else will address a transgender person by an incorrect name or pronoun out of bias, ignorance or hostility. Along with personally showing respect to transgender persons in courtrooms, a judge should request and if necessary even demand that everyone else do the same.

Eliminating Gender-Identity Bias

Gender-identity bias can exist in several ways, not only subtle, but overt. Along with the ways described, it may manifest as a general uneasiness or distrust of a party or witness. Bias often times appears most clearly in cases involving child custody. Parents who are transgender many times fear that gender-identity bias will unfairly affect their chances in a custody battle.

One way this may happen is during a court-ordered fitness evaluation. Often times, a mental health professional that has been appointed by the court may not be well-versed in issues of gender identity. The evaluator might focus a lot of the evaluation on the person’s gender identity, even as they ignore the many other aspects of the parent’s life. It is possible that an evaluator involved may be able to produce a report that seems to be free of bias. The report; however, remains likely to be unbalanced if it places an inordinate emphasis on the parent’s transgender status, or permits knowledge of the parent’s transgender status to distort other information.

As often as possible, a judge should assign such court cases to an evaluator who has training and experience in working with the transgender community. If this is not a possibility, a judge should give sufficient weight to any independent analysis submitted by a transgender parent that seeks to balance a report that might - either intentionally or not, contain gender-identity bias.

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