Protecting Transgender Inmates
- The National Prison Rape Elimination Commission has identified transgender people as a population at high risk of experiencing assault and violence while incarcerated.
- According to a 2014 U.S. Department of Justice Report, 40 percent of transgender prisoners reported sexual victimization in state and federal prisons – a rate that is 10 times higher than for prisoners in general.
- In California prisons, 59 percent of transgender women housed in men’s units reported being sexually assaulted.
“Kate” is a transgender woman. For nearly two decades, she has identified, presented herself, and lived her daily life as a woman. The gender designation on her birth certificate and other identity documents, including her state-issued identification, is “female.” In 2016, Kate was arrested by the East Orange Police Department on charges that were ultimately dismissed. She spent almost three weeks in custody, first at police headquarters and later in the Essex County jail.
Throughout her detention, Kate repeatedly identified herself as “legally female” and requested that she be housed with female inmates. She feared that she would be subject to harassment, abuse, and physical harm if housed in a male unit. At each step in her detention, however, police and corrections officers ignored Kate’s female gender identity and legal status and rejected her housing requests. In this regard, they followed their policy of categorizing inmates by sex based on their external genitalia or assigned sex at birth, regardless of their gender identity, presentation, or legal status. They subjected Kate to multiple cross-gender searches and medical examinations, conducted solely for the purpose of observing her genitals in order to determine her biological sex.
Kate’s fears materialized as she experienced a litany of humiliations and assaults while confined with male prisoners. She had to shower, sleep, and live among male inmates and corrections officers. Within hours, male inmates verbally and physically harassed Kate and exposed their genitals to her in a threatening manner.
Kate repeatedly told corrections officers of the harassment she was experiencing. Some turned a blind eye, while others laughed at and encouraged the harmful behavior. No one tried to protect her. When Kate started having panic attacks, the jail still refused to place her in an environment where she could safely reside and interact with other inmates. Instead, the jail moved her to a male protective custody unit. Kate spent 14 days in solitary confinement in this unit, a traumatizing experience in itself.
But even “protective” custody was not enough to protect Kate from harm. From the moment she stepped onto this unit and walked past other inmates on the way to her cell, they began taunting and threatening her – all inthe presence of corrections officers. Two days later, one of the more vocal inmates spent the better part of an hour throwing human waste and rotting food at Kate through the food tray slot in the door of her cell. The corrections officers– who should have been regularly monitoring the unit – stood by and ignored her calls for help.
In February 2019, a federal court appointed the firm to represent Kate in a lawsuit against the police, the jail, the corrections officers who failed to protect her, and the warden and others responsible for the jail’s policies on housing and treatment of transgender inmates. Based on federal and state civil rights claims, the lawsuit seeks monetary compensation on Kate’s behalf, as well as systemwide reforms that would ensure that the police and the jail develop and implement policies that satisfy their constitutional and statutory obligations with respect to the care and treatment of transgender individuals in custodial settings. Many other jurisdictions have enacted laws and policies to protect this at-risk population from harm during incarceration. The defendants in this case must do the same.
