‘People Will Die’ from Trump’s Trans Prisoner Crackdown, Experts Warn

On the first day of his second presidential term, Donald Trump severely restricted transgender prisoners’ access to safe housing and proper medical care. Trump’s series of sweeping executive orders signals the start of the new administration’s attacks on LGBTQ+ people.

In the president’s most direct attack on imprisoned people, one order bars the federal government from funding gender-affirming care, mandates that trans women be housed in men’s prisons, and instructs the federal government to remove protections for transgender people from Prison Rape Elimination Act (PREA) guidelines. 

Among other provisions, the order states:

• Federal agencies will “ensure that males are not detained in women’s prisons or housed in women’s detention centers, including through amendment, as necessary, of Part 115.41 of title 28, Code of Federal Regulations [Prison Rape Elimination Act rules] and interpretation guidance regarding the Americans with Disabilities Act.”

• The Bureau of Prisons must revise “its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” 

• Federal “agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology,” and

• “Federal funds shall not be used to promote gender ideology.”

The order sets up a major legal battle. Experts told The Appeal the consequences could be dire.

“This is a life-threatening executive order,” said Julie Abbate, national advocacy director at Just Detention International, an organization that works to end sexual abuse in prisons and jails. “It has immediate consequences to the actual lives and physical, sexual, and social well-being of any transgender person, including those who are locked up.”

According to a recent BOP report, trans people disproportionately face solitary confinement in federal custody. That trend continues in state facilities, where almost 90 percent of surveyed trans people said they were subject to isolation. 

A February report from the Vera Institute of Justice and Black and Pink National also detailed the violence trans prisoners face in prison. Out of nearly 300 incarcerated trans people surveyed, 31 percent said violence from fellow prisoners is the principal reason they feel unsafe. Additionally, more than half reported being sexually assaulted during their current prison sentences. 

“People will die,” Abbate said. “It’s unconscionable the President of the United States has issued this order. It’s just unconscionable in its cruelty.”

The National Center for Transgender Equality lists myriad ways in which prisons and jails ought to protect trans prisoners’ safety, including changing screening, housing, showering, restroom, and search practices. Trump’s executive order could bar federal prisons from taking any such steps.

The order also sets up a coming fight over PREA. While Trump’s order cannot revoke the act entirely—U.S. Congress enacted PREA in 2003—the law does not explicitly protect trans or LGBTQ+ people. Instead, the statute directs federal agencies to develop their own rules and guidelines to best reduce sexual assault inside prisons and jails. President Barack Obama’s administration added new protections for LGBTQ+ people to the U.S. Department of Justice’s PREA rulebook in 2012.

The DOJ’s current PREA guidelines include specific protections for trans people. Guards cannot conduct genital exams to prove a person’s gender. Prison staff must consider gender identity when making housing assignments and reassess trans people’s housing for safety concerns every few years. Transgender prisoners must be allowed to shower separately. The rules also protect children held in federal custody.

PREA standards are binding for federal agencies but not for state facilities. However, in order to receive federal grants, state carceral institutions must prove they comply with PREA. For those that do not, the federal government reduces their grants by 5 percent. For the 2024 fiscal year, all but six U.S. states and territories met PREA guidelines.

President Trump’s pick for U.S. Attorney General, former Florida Attorney General Pam Bondi, has not yet been confirmed. She has not publicly said how she will respond to Trump’s order. But her track record in Florida is worrisome: Bondi fought the legalization of gay marriage and defended a state law banning queer couples from adopting children.

Lambda Legal, the LGBTQ+-focused civil rights organization, said in a statement that the the orders will have “devastating” effects. The group vowed to fight in court.

“We are exploring every legal avenue to challenge these unlawful and unconstitutional actions,” the group said. “This is not only about politics and ideology—but also about real people’s lives.

Richard Saenz, an attorney with the organization, told The Appeal that Trump is “continuing to use the threat and dehumanization of trans people in an unconstitutional and dangerous manner.” He added that the president’s ability to make sweeping changes has limits.

“Anyone in the federal system, be it in the prison system, the jail system, and people in immigration facilities and detention centers—anyone that’s in federal custody—still has their constitutional rights,” Saenz said.

Prior to Trump’s first day in office, experts told The Appeal they expected him to launch broadside attacks against trans prisoners. Until Monday, it was unclear what form that campaign would take, as Trump’s record is slightly inconsistent on this topic. 

During the last Trump presidency, federal prison officials in 2018 rolled back guidelines for the treatment of trans people in federal custody. Among other things, those changes removed recommendations that trans people be housed in accordance with their gender identities. President Joe Biden’s administration restored some of those protections in 2022.  

However, Trump’s DOJ reportedly paid for hormone therapy for a small number of transgender prisoners, to the tune of less than $100,000 a year. 

But Trump ratcheted up his attacks on trans people—especially trans prisoners—during his latest campaign. Among other statements, Trump claimed Kamala Harris supported “transgender operations on illegal aliens that are in prison.” This topic then became a lynchpin of Trump’s campaign, even though two such surgeries have reportedly ever been performed—and both under a court order. 

Experts told The Appeal that Trump’s administration will run up against significant constitutional protections that protect access to health care behind bars—as well as years of legal precedent that affirms trans prisoners’ right to medical care, including gender-affirming surgeries.

“One of the sort of big open questions to me is how lawless they are planning to be,”Shawn Meerkamper, managing attorney at the Transgender Law Center, told The Appeal. “When it comes to trans healthcare in the federal prisons, there are multiple settlement agreements that bind the Bureau of Prisons and would prevent them from taking away certain access to health care. Again, how lawless they plan to be is a big open question.”

Monday’s orders appear to flout legal precedent. 

In a 2011 legal settlement, the federal Bureau of Prisons ended “freeze frame” policies that limited gender-affirming care to what a trans prisoner was receiving at the time of their incarceration. That same year, the federal Seventh Circuit Court of Appeals struck down a Wisconsin law that banned the state from using federal or state resources to fund gender-affirming care.

In 2018, a Missouri federal court blocked a similar “freeze frame” policy in that state. In a landmark 2022 settlement, the BOP agreed to provide the first gender-affirming surgery for a trans prisoner in federal custody. As part of that agreement, the agency also agreed to give trans prisoners pathways to obtain gender-affirming care. Since then, trans plaintiffs have won similar lawsuits in Washington and North Carolina.

But those protections haven’t deterred Republicans. 

In the last few years, a small handful of states attempted to ban state corrections facilities from providing gender-affirming care. While courts in Indiana and Idaho have ruled against such laws, a Missouri court in November upheld a bill banning care for trans children. Lawmakers later expanded that law to also bar state corrections institutions from providing transition-related surgeries.

Trump has also appointed anti-trans crusaders to his incoming cabinet. Harmeet Dhillon,  Trump’s would-be head of the DOJ’s Civil Rights Division, has been involved in a number of anti-trans lawsuits, including a brief stint representing anti-trans women suing to block California from allowing prisons to house trans people in accordance with their gender identities. The case is still open.

While imprisoned trans people and their allies worry that Trump’s administration could make their lives demonstrably worse, some advocates stressed that the situation had already been difficult under President Joe Biden. Just Detention International’s Abbate said the landscape on the ground for trans people behind bars has remained bleak no matter the political party in power.

“There is no huge difference in my perspective, in the lives of people who are in custody based on whether a Democrat or Republican is in office,” Abbate said. “They are still completely locked up away from society, vilified, forgotten about and taken advantage of.” 

In October 2022, for example, New Jersey gave prison officials greater leeway to place trans people in housing that does not comport with their gender identities. Trans women in the state also say they have been pushed to mutilate themselves to ensure they are provided the surgeries they have requested for years. The state’s incarcerated trans women also say they are subject to solitary confinement—which may violate a state law severely limiting the practice. 

In nearby New York City, corrections officials under Mayor Eric Adams have rolled back protections for trans people on Rikers Island, including all but shuttering an LGBTQ+ Affairs Unit that worked to get trans and gender nonconforming prisoners into safer housing on the island.

And, even before Trump won a second term, states were preparing to roll back health care policies for trans people. According to a report from The Marshall Project, Florida corrections officials in late September enacted a draconian policy that prioritizes psychotherapy over other health care for trans prisoners. The rule says requests for hormone replacement therapy could be based on “short-termed delusions or beliefs.” 

According to the Marshall Project, trans women in Florida prisons were also subject to dehumanizing breast exams to determine whether they were permitted to keep their bras, underwear, and toiletries. A federal judge in December refused to temporarily block the state’s policy.

While these attacks might seem narrowly tailored, Meerkamper and others warned that conservatives won’t just stop at targeting trans children and prisoners.

“If you care about trans folks in some contexts, any context, then you really need to be caring about what’s happening to trans folks in our prisons,” Meerkamper said. “Because it’s going to be very much relevant to those of us who are not incarcerated.”