How The U.S. Prison System Is Failing Trans Prisoners — And What Needs To Change

by Samantha Mercado

In Orange is The New Black, Season 3, Laverne Cox’s character Sophia is placed in solitary confinement. Photo via Netflix

The Chelsea Manning case brought an incredibly important issue to light that is all too often overlooked — transgender prisoners and their safety. Prison is a risky and scary place on its own, but entering prison as a transgender or gender nonconforming person can make that experience even scarier. Trans prisoners are often immediately seen as targets by both inmates and officers.

Chelsea Manning, like so many other trans prisoners, was placed according to the gender she was labeled at birth and not by the gender she identified as. After pleading several times with the prison to be moved to a female prison for her own safety, she attempted suicide twice. Now with her sentence commuted and ending soon, she may be able to restart her life. She may be one of the lucky ones.

Hundreds of other trans prisoners live in a constant state of fear and abuse, being forced to remain in a prison that does not fit the gender they identify with. People who identify as LGBTQ are twice as likely to end up in prison and 21% of transgender women have spent time in jail. Officially, most prisons across the country are supposed to evaluate each prisoner on a case-by-case basis to determine where would be the safest place for the prisoner and the general prison population. Within 72 hours of being detained in prison, inmates are supposed to be screened to assess their risk of sexual assault. According to the National PREA Resource Center, some of the qualities that are screened for are: whether the inmate is disabled, the age and physical build of the inmate, and the inmate’s own perception of vulnerability. While all of these laws and screenings are technically in place, some states still place trans prisoners according to their birth gender.

A trans prisoner — who we will call Jolene to protect their identity — explained her experience after serving five years in prison. “At the time, I wasn’t out as a trans-woman,” Jolene says, and explained that she was put in a men’s prison — it was here that she realized that she was a woman. “[Before prison] I had a very conservative mindset — but being in prison kind of made me re-examine everything,” including her gender. Jolene says she noticed plenty of trans prisoners in her time incarcerated, “more than you’d expect.” While Jolene says she never saw physical abuse, the verbal abuse towards the trans prisoners was rampant among inmates and guards alike. Jolene says as she explained how some trans inmates would fashion bras and other feminine products out of what clothes or products they did have, but “anything modified was considered contraband and taken away.”


downloadChelsea Manning. Photo via Go Fund Me

Jolene was not out as a trans woman during her time in prison, but for women like Chelsea Manning, CeCe McDonald, and Ashley Diamond, being an openly trans woman in an all men’s prison lead to isolation and abuse. Chelsea Manning — still serving her 35-year prison sentence (now commuted) in Fort Leavenworth federal prison — began her transition to a woman while incarcerated. It wasn’t until Manning’s lawyer from the ACLU filed a lawsuit that she was able to obtain treatment prescribed to her by prison doctors for gender dysphoria, in 2014. Her transition in prison has been a gradual one, with small steps like wearing female prison undergarments and receiving speech therapy to feminize her voice, taking months. While almost being denied hormone treatment, Manning was also forced into isolation “for her own safety,” which very well may be true — but was damaging to her mental health nonetheless. During her entire time incarcerated, Manning was not allowed to grow her hair longer than what was accepted by military code. According to her Go Fund Me page, Manning wanted photos of her with short hair released; the page says, “She is forced to keep her hair short — a source of pain and trauma that we have been fighting in court for years. But she wants that to be visible and documented.”

The case of CeCe McDonald was very similar to that of Chelsea Manning. McDonald was placed in men’s prisons and kept in solitary confinement for four months. While in the St. Cloud Minnesota Correctional Facility, McDonald spent 23 hours a day in her cell, completely alone. Assigned a 41-month prison sentence, McDonald was charged with 2nd-degree manslaughter for what she and much of the LGBT community say was self-defense. After she was sentenced, “There wasn’t a moment when I wasn’t in pain mentally and spiritually, and even beating myself up for defending myself,” CeCe told Rolling Stone. She also explained in an interview with the Huffington Post that being placed in solitary confinement, she felt, was worse for her, and she would have preferred to be placed in the general population.

CeCe McDonald at SF LGBT CenterCeCe McDonald at San Fransisco LGBT Center. Photo via Wikimedia

Ashley Diamond’s case was a bit different than Manning’s and McDonald’s. Diamond was arrested for burglary, a non-violent crime, and placed in several high-security prisons for violent men. Diamond was not separated from the general population or even acknowledged as a trans woman, she says. In a lawsuit against the prison, Diamond recounts in detail how she was raped at least seven times. Now that Diamond is out of prison she still struggles with acclimating to life as a normal citizen and whether or not she can pay for her hormone treatment.

For trans people of color like Ashley Diamond and CeCe McDonald, the risk for imprisonment is even higher than most. A study published by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that among Black transgender people, nearly half (47%) have been incarcerated at some point. These high incarceration rates are coupled with higher rates of sexual assault: 12.2% percent of LGBTQ inmates are sexually assaulted, compared with 1.2% of heterosexual people. Additionally, 38% of black transgender women report being sexually assaulted in prison. There is virtually nothing working in the favor of trans prisoners, and especially trans prisoners of color.

The U.S. prison system has yet to figure out a way to house trans prisoners without putting either their safety or mental health in jeopardy. This is a huge problem since trans people are more likely to engage in illegal activity like prostitution and drug dealing because they are more commonly discriminated against for employment. Turning to such illegal work is why 16% of all transgender people have been in prison. So if trans people are more likely to be imprisoned, then why aren’t there safeguard in place to protect them in prison? Technically there are, but they are so lenient that many prisons don’t abide by them at all without punishment. All statistics point to the obvious fact that trans prisoners are often the target of sexual assault by both other inmates and officers. A Bureau of Justice Statistics survey found that 39.9 percent of transgender prison inmates reported unwanted sexual activity with other inmates or sexual activity with prison staff members.

Lee Schubert is a trans woman and author. She has studied the effects of the U.S. prison system’s inability to effectively house trans prisoners. Schubert says she doesn’t believe that trans prisoners are safe at all. But like many others, Schubert doesn’t have a solution: “I do believe that female trans people should be in female prisons — but to be consistent then male trans people would be at risk in men’s prisons.” Grappling with the issue that is on all of our minds, Schubert explains her thought process, saying that while all trans people would be safer — physically — in female prisons, it would also be contradictory to trans men’s identity. An important issue to realize before looking at how to house trans prisoners, Schubert says, is how they end up in prison. While yes, the majority are there due to prostitution or drug dealing, it pays to look deeper at the reasons why they are involved in illegal activity in the first place. Many trans people experience employment discrimination on a daily basis, and it leads them to dangerous and illegal forms of work. A simple solution to this issue? Schubert says, “Proper identification with the gender they identify with could really help many trans people in search of employment.”

Some prisons try to isolate trans prisoners in solitary confinement “for their own safety,” but the constant isolation isn’t healthy for prisoners’ mental health and still leaves them open to attack by guards. No doubt it’s a complicated issue, since no matter where they are, placed trans prisoners will be the biggest target. Perhaps reinforcing the safeguards in place and creating more checks and balances to ensure the rules are being followed. Perhaps placing all trans prisoners in female prisons would be safer. Or perhaps placing trans people based on the gender they identify as would work — I don’t have the answer, but it is definitely a question worth pondering, and one that prison and government officials should spend more time on.

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