Last week, President Donald Trump’s administration rolled back yet another LGBTQ-friendly policy — this time, rescinding some protections for transgender people in prison.
The new guidelines in the Transgender Offender Manual, as reported by Dominic Holden at BuzzFeed, likely make it more difficult for trans inmates to be housed based on their gender identity instead of the gender assigned to them at birth. The new guidelines say that prisons “will use biological sex as the initial determination” and that an inmate’s own gender identity will only be recognized for housing “in rare cases.”
The guidelines add specific hurdles to trans people being housed based on their gender identity. Trans inmates will be only be considered for housing based on their gender identity if “there has been significant progress towards transition as demonstrated by medical and mental health history.” Authorities must also “consider whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution.”
The previous guidelines “recommend[ed] housing by gender identity when appropriate,” generally including language that was friendlier — or at least more vague — toward placing trans inmates in facilities appropriate to their gender identity instead of the sex assigned to them at birth. (The full changes can be read here.)
The shift, Holden reported, came after four evangelical Christian women at a prison in Texas filed a lawsuit disputing the old guidelines as well as regulations filed under the Prison Rape Elimination Act. The women argued that the Obama-era rules put them in danger, creating “a situation that incessantly violates the privacy of female inmates; endangers the physical and mental health of the female Plaintiffs and others, including prison staff; [and] increases the potential for rape.”
A spokesperson for the US Bureau of Prisons told Holden that the new manual “addresses and articulates the balance of safety needs of transgender inmates as well as other inmates, including those with histories of trauma, privacy concerns, etc., on a case-by-case basis.”
But LGBTQ advocates condemned the move.
“The extreme rates of physical and sexual violence faced by transgender people in our nation’s prisons is a stain on the entire criminal justice system,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement. “Instead of leaving the existing policy alone, the administration is clearly prepared to encourage federal prisons to violate federal law and advance its own inhumane agenda.”
LGBTQ advocates worry the changes will endanger trans inmates
For LGBTQ advocates, the concern is that if someone identifies and presents as a woman but is placed in prison with men, she’s going to be at higher risk for rape and sexual assault.
Data gives reason for the concern. A 2016 report from the Movement Advancement Project and the Center for American Progress found trans inmates are at very high risk of sexual abuse in prison: About 1.2 percent of heterosexual inmates report sexual assault by other inmates in prison and jails, while 24.1 percent of trans inmates report at least one sexual assault.
In 2016, I covered the story of Samantha Hill, a trans woman in the federal prison system. Before she was finally transferred to a minimum-security Kentucky facility where she said that she’s finally much safer, Hill was sexually assaulted at least eight times. She complained all along the way — only for the prison system to repeatedly ignore her until she finally got the legal representation she needed to fight for her. And Hill is far from alone, with trans inmates like Passion Star in Texas and Ashley Diamond in Georgia sharing similar stories.
The Obama administration implemented new regulations and guidelines for trans inmates to try to prevent more incidents like Hill’s. The new rules weren’t by any means perfect — with trans inmates still likely at an elevated risk, and prisons still sometimes ignoring the needs of trans inmates. But for LGBTQ advocates, the Obama-era rules were a step toward protecting trans inmates from a disproportionate risk of sexual assault and guaranteeing these inmates their Eighth Amendment protections against cruel and unusual punishment.
Now the Trump administration is weakening such protections.
This is far from the first anti-LGBTQ action by the Trump administration. Since taking office in January 2017, the administration has also tried to ban open trans people from serving in the military, rolled back anti-discrimination protections for trans students in K-12 schools, rescinded a memo that said trans workers are protected under civil rights law, and much more. That’s despite Trump posing with the LGBTQ Pride flag and his promise that he would protect “L, G, B, T … Q” people at the 2016 Republican convention.