Members of Congress: Trump Administration’s Prison Policy Could Lead to ‘Significant Discrimination’ for Trans People

Trans people, especially trans women of color, are particularly affected by prison policies.

[Photo: Prison Cells]
Twenty-one percent of all trans women have been incarcerated at some point in their lives. Shutterstock

Sixty-seven members of Congress wrote to the acting head of the Bureau of Prisons (BOP) demanding he change the agency’s new policy of housing transgender inmates according to their genitalia or birth-assigned sex, not their gender identity.

The Trump administration announced new guidelines in May for the housing and treatment of transgender prisoners, requiring inmates be assigned to facilities based on their “biological sex,” a term which is not defined under the regulation or within existing law.

The letter, drafted by Rep. Jerrold Nadler (D-NY), ranking member of the House Judiciary Committee, and Rep. Robert Scott (D-VA) and signed by 67 members of Congress argues that the new regulation violates the Prison Rape Elimination Act (PREA), which was sponsored by now-Attorney General Jeff Sessions (R) and was unanimously passed by both chambers of Congress in 2003. In 2012, the U.S. Department of Justice (DOJ) issued regulations to protect transgender inmates under PREA, requiring that genital status not be used to determine a transgender inmate’s housing. Instead, according to the DOJ standards, housing should be determined on a case by case basis while taking into account the wishes of the transgender prisoners.

PREA also sets out a “zero tolerance policy,” establishing reporting standards and mandatory investigations of all claims of sexual assault, abuse, and rape in prisons. The standards are meant to reduce and eventually eliminate sexual violence among incarcerated populations

Trans people, especially trans women of color, are particularly affected by prison policies and also experience high rates of sexual violence. Twenty-one percent of all trans women have been incarcerated at some point in their lives, compared to a  2.7 percent incarceration rate among the general population, according to a joint study by the National Center for Transgender Equality and the National Gay and Lesbian Task Force. That statistic climbs to 47 percent for black trans people.

According to a 2012 Department of Justice survey, 34.6 percent of trans inmates reported being victims of sexual violence in prison within the previous 12 months; 24 percent of trans inmates had been victimized by another inmate.

“PREA was passed by Congress in 2003; President Bush and Congress at the time appointed a bipartisan commission that studied this issue for six years. This bipartisan commission put out proposed standards that included specific protections for transgender prisoners,” Harper Jean Tobin, policy director for the National Center for Transgender Equality, said in an interview with Rewire.News. 

“Those standards, after going through three different public comment periods, were turned into federal regulations by the Justice Department in 2012, and among their protections is that there has to be a case by case individual determination for each transgender person as to where they’d be most safely housed.”

The letter calls out BOP’s use of the term “biological sex” in its new guidelines, noting the term has no official legal meaning. “Presumably, the agency intended to refer to a prisoner’s assigned sex at birth to avoid the prohibition of using ‘genital status,’ but failed to adequately define its intent,” reads the letter.

“We are gravely concerned that the undefined term ‘biological sex’ will function in practice as a moving target, one that opens the door to significant discrimination and animus as its meaning is allowed to shape-shift to keep transgender prisoners from ever being housed in accordance with their gender identity in violation of PREA’s standards.”

The BOP prison policy is just the latest in a string of hostile administrative and legal moves making life more difficult for trans people, such as the transgender military ban, a proposal to end ACA non-discrimination protections for trans patients, and DOJ’s new “Religious Freedom Task Force.”

“It appears that the Trump administration made a politically motivated decision to try turn back the clock on [PREA’s trans protections] as they’ve done on so many other things,” said Tobin. “In this case, that’s really dangerous and the changes they made to this policy seem to be, as the members of Congress correctly identified, inconsistent with the purpose and the requirements of PREA and could mean that more transgender prisoners in the future are housed in settings that are more dangerous for them.”