As Anti-Trans Bills Target Prisoners, Some Warn of a ‘Canary in the Coal Mine’
Legislation targeting transgender people behind bars is part of a much broader campaign against LGBTQ rights. Advocates say the measures could preview future attacks by the anti-trans movement.
Adam M. Rhodes Aug 17, 2023
Lawmakers in a handful of states have begun taking aim at transgender people in prison with extreme measures that seek to infringe on the rights of an especially vulnerable segment of the population.
Over the past two years, elected officials have proposed a variety of mechanisms designed to suppress transgender existence behind bars. The bills are part of a much broader wave of anti-LGBTQ state legislation, which has most notably included hotly contested efforts to block healthcare access for trans youth.
In light of the recent trend and the history of repression against trans prisoners, the new legislation could be a “canary in the coal mine,” previewing increasingly aggressive policy measures targeting trans adults as well as children, said Richard Saenz, the criminal justice and police misconduct strategist at LGBTQ+ advocacy organization Lambda Legal.
“These attacks have been happening for years against detained people,” Saenz told The Appeal. “[They’re] policies that prevent care; the talking points that we have heard for years that trans women are inherently dangerous to cisgender women. It was tested against incarcerated people.”
In April, Indiana Republican Gov. Eric Holcomb signed a bill prohibiting the use of public funds to pay for prisoners’ gender-affirming surgery. The law could impact at least 117 trans, nonbinary, or intersex people who are incarcerated in the state’s prison system, a spokesperson for the Indiana Department of Corrections told The Appeal. Although about a third of those prisoners are currently receiving some form of gender-affirming care, the spokesperson confirmed that neither the DOC nor its third-party medical providers have ever provided gender-affirming surgery to an incarcerated person.
As with most anti-trans legislation, critics say bills targeting incarcerated trans people are largely legislating against hypotheticals in an effort to score political points in the right-wing culture war against the LGBTQ+ community.
“It’s political theater at the expense of transgender bodies who are locked up and at great peril,” Julie Abbate, the National Advocacy Director at Just Detention International, an organization that works to end sexual abuse in prisons and jails, told The Appeal in an interview.
A 2022 law in Mississippi bars prisoners from changing their names while incarcerated. That measure followed an unsuccessful effort that would have prohibited incarcerated trans people from changing their names and their gender markers.
“Unfortunately, Mississippi has fallen short in providing adequate support and protections for transgender people in correctional facilities, resulting in significant harm to their physical and mental well-being,” McKenna Raney-Gray, a staff attorney for the ACLU of Mississippi’s LGBTQ Justice Project, said in a statement to The Appeal.
Although the measure is only one of dozens of anti-LGBTQ bills introduced in Mississippi over the past two years, Raney-Gray said the political climate for transgender people in prison remains especially “abysmal.”
“Incarcerated individuals already face a reduction in rights, and there are few, if any, protections afforded to transgender people specifically,” she said.
The legislative campaign against transgender prisoners has also cropped up in at least one blue state. Earlier this year in Oregon, more than a dozen Republican state legislators sponsored a bill to bar the state from funding all gender-affirming care for transgender prisoners. The proposal did not make it out of committee this session.
Advocates say it’s impossible to separate these bills from the broader push to criminalize trans existence, as seen in legislation banning gender-affirming care for youth, blocking trans people from playing sports, or outlawing books and public performances with queer themes.
“We’re trying to legislate trans bodies more and at higher levels—making things felonies which means more [reliance on] prisons,” Andrew Aleman, a deputy director at Black and Pink, a national prison abolitionist organization that supports the LGBTQ+ community, told The Appeal. At the same time, “we are trying to restrict what kind of environment they have access to once they’re incarcerated, what kind of care they have access to, and what kind of supports they have.”
The recent legislation flies in the face of decades of legal precedent supporting the rights of transgender people in prison, according to Saenz.
When the U.S. Supreme Court ruled in 1994 that a prison official’s “deliberate indifference” to an incarcerated person’s substantial risk of serious harm violates the cruel and unusual punishment clause of the Eighth Amendment, it was a ruling in favor of a trans woman who was sent to a men’s prison, where a man beat and raped her.
In 2018, the Seventh Circuit Court of Appeals also ruled that a trans woman could sue Wisconsin Department of Corrections officials for denying her hormone treatment while in prison and on supervised release. In the ruling, a judge wrote that the woman’s punishment “cannot extend to the deprivation of the medical treatment she requires for her serious gender dysphoria.”
Saenz himself has represented clients fighting back against anti-trans prison policies. In 2018, he helped win a court decision striking down a Missouri policy that had refused hormone therapy to trans prisoners who had not been receiving treatment before they were incarcerated.
And in 2022, the Fourth Circuit Court of Appeals also held in a first-of-its-kind ruling that gender dysphoria is protected under the Americans with Disabilities Act. The decision allowed a trans woman’s lawsuit against Fairfax County, Virginia, officials to proceed on the grounds that they had violated the ADA by housing her with men in an adult detention center. In June, the Supreme Court declined to take up the case, letting the appeals court’s ruling stand.
Last year, Lambda Legal published the results of a survey of incarcerated queer and trans people, which Aleman said demonstrates how these policies will only compound this community’s suffering behind bars.
The report, published in partnership with prison abolitionist organization Black and Pink as part of a larger report on LGBTQ+ issues in the criminal legal system, found that queer and trans people face rampant mistreatment while incarcerated. More than half of respondents reported being sexually harassed by jail or prison staff, while 1 in 6 said they had been sexually assaulted. A whopping 87 percent reported verbal assault.
For the vast majority of trans people, this abuse takes place while they are detained in facilities that do not align with their gender identity. Over three-fourths of all trans and gender nonconforming respondents in the survey reported being housed inconsistently with their gender identity, with many saying they had been denied their preferred housing assignment in the past five years. Among transfeminine people—a group that includes nonbinary individuals who may have a more feminine gender—that number jumped to more than 90 percent.
Experts say these housing practices put trans prisoners at tremendous risk of physical and sexual violence. For many trans women in prison, the denial of gender-affirming surgery means being forced to live in men’s prisons until they undergo the procedure.
In New Jersey, the state corrections department rolled back a policy last year that had made it easier for transgender people to be housed in facilities that match their gender identity. The amended language allows officials to cite “reproductive concerns” to override a trans prisoner’s housing preference. Under the new policy, some trans women have been placed in men’s facilities, where they say officials have impeded their requests for gender-affirming surgery. These procedures that would incidentally eliminate any potential “reproductive concerns.”
Trans women currently being held at a New Jersey men’s prison have said they face routine mistreatment by prison staff and other incarcerated people. At least two have reported acts of self-mutilation in recent months, which they’ve characterized as a response to unreasonable delays in approving gender-affirming surgeries.
Meanwhile in New York City, Mayor Eric Adams has severely hindered the work of an LGBTQ+ affairs unit within his department of corrections. After Adams replaced a top DOC official, the agency shelved a draft housing policy aimed at housing trans and nonbinary people with respect to their gender identities. The unit’s programming has since all but stopped, and most of its staff has resigned, according to a report by The City.
Advocates have raised concerns about the lack of public outcry in response to the anti-trans proposals targeting people behind bars. Some have noted that people in prison can’t physically testify on their own behalf, which has denied them opportunities to advocate for themselves as others in the trans community have done recently in the face of hostile legislation.
Then there’s the added issue of social stigma against people in prison, which tends to make the public less sympathetic to their needs—even more so if they’re trans or queer.
“It’s just frankly easier to discriminate against and limit protections for people that are incarcerated and especially trans people that are incarcerated because there are less eyes on it,” Aleman said. “Fewer people care about folks that are incarcerated.”
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