Analysis Human Rights

The Biology of Gender, and When (if Ever) Children Should Be Given Sex Reassignment Surgery

Martha Kempner

The first words uttered after a child is born are often “It's a boy!” or “It’s a girl!” But sometimes doctors don’t know exactly what to say. How does this happen, and what should parents and doctors do?

Last week, parents in South Carolina filed a lawsuit against the state on behalf of their 8-year-old adoptive son, known as M.C., who was born with both male and female genitalia and was given sex reassignment surgery as a toddler when he was a ward of the state.

In a recent Rewire article, Jessica Mason Pieklo explored the legal issues in the case. Here, I want to look at the myriad other gender-related issues a case like this raises. There are biological issues (How do some babies come to be born with male and female genitalia?), sociological issues (Is our gender born or made, and is it possible to raise a child, even a very young one, in a gender-neutral way?), and psychological issues (What’s in the best interest of a child in this situation?).

Biological Sex

We don’t know the precise medical condition M.C. has, but there are a number of ways he could have been born with genitalia and reproductive organs that at least appear to be both male and female. At one point, M.C. would have been called a hermaphrodite, though that would likely have been inaccurate as the term technically refers to someone who has both ovaries and testes. Within the past few decades the word intersex was introduced as a way to describe individuals with these conditions. More recently, the term “disorders of sexual development” has been used, but some advocates feel this language only further marginalizes the identities of these individuals.

Whatever language we land on, it all starts with sperm and ova (eggs), which are known as gametes. They each carry 23 individual chromosomes that, when they come together, become the 23 pairs of chromosomes that make up our unique genetic identity. One of those pairs of chromosomes determines our biological sex. Ova always (or almost always—more on that later) carry one X chromosome, while sperm typically carry either an X or a Y chromosome. When they come together and everything goes according to plan, an embryo with XX chromosomes develops into a female, while one with XY chromosomes develops into a male.

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All fetuses start out with two undifferentiated gonads and certain homologous structures (structures that start out the same) that can become either male or female sex organs. It is up to the chromosomes to start the path toward male or female. Do nothing and the fetus will develop ovaries that begin to make estrogen. The homologous structures will then become a uterus, fallopian tubes, and a vagina internally. Externally they will develop to form the labia minora, labia majora, clitoris, and the vaginal opening.

Add something called TDF (testes determining factor), which is found on the Y chromosome, and the gonads will become testes and start making testosterone. The homologous structures in the fetus will then turn into the internal reproductive system (such as the Cowper’s gland, prostate gland, and seminal vesicles) and the external male genitalia (the penis and scrotum).

Though the majority of babies born will have followed one of these two paths, there are many points along the way where things can diverge.

Chromosomal Anomalies

Though each gamete is supposed to have only one sex chromosome, problems can occur during meiosis (the process of cell separation) that cause them to have more than one or none. This means that an embryo can begin to develop with too many or too few sex chromosomes. For example, Turner Syndrome, XO, develops when either the egg cell or the sperm cell does not have a sex chromosome at all. Individuals who are born with Turner Syndrome have external female genitalia and internal female reproductive organs (ovaries, uterus, and fallopian tubes), but the ovaries are not functional and do not produce estrogen during development. Klinefelter’s Syndrome, XXY, happens when an egg with two X chromosomes is fertilized by a sperm with a Y chromosome, or an egg with an X chromosome is fertilized by a sperm with both an X and a Y. These individuals will appear male when born, but some abnormalities, including small testes, a female pattern of pubic hair, poor muscle development, and a lack of facial hair, may begin to be noticed as the individual reaches puberty. Other combinations, like XYY or XXX, can cause issues after puberty such as infertility and irregular periods but exhibit no outward symptoms in childhood.

Hormonal Anomalies

While chromosomes set a fetus on the path toward its biological sex, how the fetus develops is also very much controlled by the hormones it is exposed to while in utero (and after birth) and how the body processes these hormones. When the hormones are not produced or the body can’t process them, the fetus develops along a different path.

For example, Androgen Insensitivity Syndrome (AIS) occurs when the body cannot process male sex hormones (known as androgens). When this happens in someone who is genetically male (XY), the testes will develop and produce testosterone, but because the body cannot process this hormone, the fetus will develop along a female path and will appear female when born with external genitalia that appear to be labia. The internal reproductive organs, however, will not have developed completely. The baby will be born with a shortened vagina and will not have a uterus. The baby will also have undescended testes, which will most often be located somewhere in the abdomen.

Another hormonal issue is called Congenital Adrenal Hyperplasia (CAH). It is a disorder of the adrenal glands (there is one adrenal gland located on each of our kidneys) which causes a buildup of androgens in a fetus and infant. If this happens in someone who is genetically male (XY), it can cause sex characteristics to appear too early. Genetic females (XX) with some forms of CAH will usually have normal internal reproductive systems (ovaries, uterus, and fallopian tubes) but may have an enlarged clitoris at birth. In some instances the clitoris may be so large that it is mistaken for a penis.

DHT deficiency is another common anomaly. Genetic males (XY) with DHT deficiency do not produce enough of a hormone called dihydrotestosterone (DHT) while in utero. Some babies with this deficiency are born with external genitalia that look female, while others are born with external genitalia that appear male but are unusually small (sometime called a micropenis). Still others will be born with what is called ambiguous genitalia, where it is hard to tell whether they are male or female just by looking.

A Rush to Judgement

The first words uttered after delivery are often “It’s a boy!” or “It’s a girl!” But what happens when these conditions make it so doctors don’t know exactly what to say? Such a diagnosis can be difficult for parents, and the path forward unclear.

As with many things in our society, there has historically been a rush to fix that which is not “normal.” In many cases this has meant that parents are told their infant needs to have surgery immediately to make their genitals appear more like an average clitoris or penis. In truth though, it has always been much easier to create labia and a vagina than it has been to create a penis (especially one that functions). Most of the time, therefore, doctors would recommend that parents surgically create female genitalia and begin to raise the infant as a girl regardless of the chromosomal sex or what hormones the infant was exposed to in utero.

This appears to be what happened to M.C. It is also what happened to Cheryl Chase, who later became an advocate for putting off genital surgery until a child is old enough to make their own decisions. Cheryl was born in 1956 with ambiguous genitalia—she had what could have been an enlarged clitoris or a micropenis and something that appeared to be a vaginal opening. At first doctors recommended that she be brought up as boy, so she went home from the hospital with the name Charlie. But her parents were concerned about the appearance of her genitals and consulted another team of experts when she was 18 months old. Based on the fact that she had a fairly normal vagina, these experts recommended surgery to make her external genitals look more female. She underwent a clitoridectomy and was sent home as Cheryl. Her parents never told her what had happened, though she remembers many unexplained surgeries and genital exams during her childhood. She also remembers not fitting in with the other girls: “I was more interested in guns and radios and if I tried to socialize with any kids, it was generally boys, and I would try to best my brother.”

Interestingly, the most famous test case of gender reassignment in children did not involve someone with a disorder of sexual development. Instead, the case involved identical twin boys who were born in 1965 with identifiably male sex organs. At eight months old they underwent circumcision because they were suffering from phismosis (a condition in which the foreskin will not pull back). There was a serious accident and one twin essentially lost his penis. At the time, doctors said they were unable to surgically give the child anything that looked or functioned like a real penis.

The parents turned to Dr. John Money, a pioneer in the field of gender and sex reassignment surgery. Money had a theory that gender is purely a cultural concept that comes from how kids are raised, especially early in their lives. He believed that infants are born as blank slates, and it is not until their parents and society imprint them with gender that they begin to see themselves as either male or female.

Money met with the parents of the infant (then named David) and assured them that if they allowed surgeons to construct external female genitalia and then raised the child as a girl, “she” would be capable of growing into a well-adjusted young woman. Money was particularly interested in this case because as an identical twin David came with a control group. If “she” could be successfully raised as a female while her brother (who had the exact same genetic make-up) was successfully raised as a male, it would go a long way toward proving Money’s blank-slate theory. The parents took Money’s advice, did the surgery, and proceeded to raise David as Brenda. Neither she nor her brother was told the truth about the situation.

For years, Money published papers about how well his gender experiment was going, and his research on the “John/Joan case” became the basis for his book, Man & Woman, Boy & Girl. It also made national news, including a full-page story in Time magazine. But the family tells a different story. The twins’ mother claims that the first time she put a dress on Brenda, the child tried desperately to pull it off. Brenda’s brother tells it this way, as quoted in an article for Healthy Place: “I recognized Brenda as my sister but she never, ever acted the part. She’d get a skipping rope for a gift, and the only thing we used it for was to tie people up, whip people with it.” He went on to say, “When I say there was nothing feminine about Brenda, I mean there was nothing feminine. She walked like a guy. She talked about guy things, didn’t give a crap about cleaning house, getting married, wearing makeup.” And as a teen she refused to go ahead with the surgery that would have created a full vagina.

As soon as Brenda learned the truth, at the urging of a psychologist who saw her as near suicidal, she began once again to live as David. When the real result of the “John/Joan” case became public in the mid-1990s, David was a 31-year-old man and married to a woman. At the time, he said he was happy living as a man but acknowledged that getting there was not easy and that he had contemplated suicide a number of times. Sadly, this happiness did not remain; in 2004 David Reimer took his own life.

Today’s Thinking

Based on cases like Cheryl Chase and “John/Joan,” the prevailing wisdom today suggests that rushing into surgery, which has permanent repercussions, for purely cosmetic reasons is a bad idea. It is important to note that some conditions do require early surgery for functional reasons, such as separating the vagina from the urethra, or safety reasons, such as removing testes located within the abdomen as they can become cancerous. But in most cases the surgeries that these children undergo—like the one that M.C. had—are about appearance.

A recent consensus document written by the Lawson Wilkins Pediatric Endocrine Society in the United States and the European Society for Pediatric Endocrinology advises parents and physicians to take it slow and not treat the birth as a medical emergency that requires immediate intervention.

Instead, the guidelines suggest that every infant be assigned a gender shortly after birth based on the diagnosis, genital appearance, surgical options, needed for lifelong replacement therapy (such as estrogen shots), potential for fertility, and the views of the family and culture. In our pink and blue society, it is not possible, nor is it advisable, to attempt to raise a child without gender. The idea, however, is that this without surgery this gender assignment can change if it turns out to be inconsistent with how the child feels as he or she grows up. This allows the child (most likely as a teen or an adult) to make the ultimate decisions about gender and genital appearance.

While this approach clearly makes the most sense, the waiting game must be very difficult for parents who will likely have many concerns about whether their child will accept him/herself and how he/she will be treated by others if they look different (think potty training in preschool or high school locker rooms). In M.C.’s case, the guardians may also have worried that the child would not be adoptable without a clear gender and “normal” genitalia.

M.C. is very lucky that he found parents who are strong advocates for his right to be who he wants to be. Hopefully their efforts can help young people and parents who are facing these issues make these difficult decisions as painlessly as possible.

Culture & Conversation Media

Behind the Most Creative—and Deserving—Supreme Court Nickname Ever

David S. Cohen

Notorious RBG is a lively, accessible, and smart look at Justice Ruth Bader Ginsburg's life, career, and impact on American law and feminism.

On June 25, 2013, the Supreme Court’s decision in Shelby County v. Holder effectively gutted the Voting Rights Act’s requirement that certain states with racist pasts had to have voting changes “pre-cleared” by the Department of Justice. Basically, Chief Justice Roberts wrote in the opinion, this protection was no longer needed because racism was over.

Justice Ruth Bader Ginsburg’s dissent was furious. She accused the majority of overstepping its authority and ignoring the ways that race discrimination still grips this country, writing, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”  

When the case came down, Shana Knizhnik, a first-year law student at New York University, was outraged too. Knizhnik almost immediately created a Tumblr as a tribute to Ginsburg, calling it Notorious R.B.G.—a phrase borrowed from a classmate’s Facebook postingin homage to the rapper Notorious B.I.G.—and using Ginsburg’s “umbrella” line as its first post.

From this, an Internet sensation was born. Cities around the country have RBG-inspired cocktails; the Cartoon Network’s show Clarence has a character named after her (Wrath Hover Ginsbot, who is “appointed for life to kick your butt”); babies, kids, and grown-ups (my wife included, just last week) now dress up as RBG for Halloween; she is mentioned in all sorts of popular media, from Scandal to Saturday Night Live; and at least three people across the country have documented RBG tattoos.

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With such a genesis story, you might have expected Notorious RBG: The Life and Times of Ruth Bader Ginsburg, a book inspired by the Tumblr and released from HarperCollins last week, to be a tongue-in-cheek look at RBG in popular culture, with perhaps a few cursory references to her experiences. Even the book design reflects this: Its appearance looks fun and breezy, including the cover image of Justice Ginsburg in a crown, the scribbled case annotations on the inside (one of which, in full disclosure, I contributed), and the many photos and cartoon drawings that break up the prose.

You’d be wrong, though. Instead, Knizhnik teamed up with journalist Irin Carmon to write a lively, accessible, and smart look at RBG’s life, career, and impact on American law and feminism.

It may seem unbelievable that a justice so modest that she once proposed to her colleagues on the D.C. Circuit that they release unanimous opinions without the author’s name on it, so straight-laced that her children once documented every instance of her laughter in their own book called Mommy Laughed, is the now-ubiquitous public figure Notorious RBG. In fact, the moniker itself is an exercise in contrasts. The book notes:

To [Knizhnik], the reference to the 300-pound deceased rapper Notorious B.I.G. was both tongue-in-cheek and admiring. The humor was in the contrasts — the elite court and the streets, white and black, female and male, octogenarian and died too young. The woman who had never much wanted to make a stir and the man who had left his mark. There were similarities too. Brooklyn. Like the swaggering lyricist, this tiny Jewish grandmother who demanded patience as she spoke could also pack a verbal punch.

As Knizhnik and Carmon write, from an early age RBG distinguished herself not only with her unusual intelligence but also with an unrivaled work ethic. She fell in love with her husband at Cornell University because, unlike the other men who “were in awe” of her beauty, he was wowed by her brain and “wooed and won her by convincing her how much he respected her.”

Marty Ginsburg, her husband of 56 years who died in 2010, was a key part of RBG’s life. Though Marty was a highly successful tax lawyer, he happily let his career take a backseat to RBG’s after being made partner at his firm. In fact, when she was appointed to be a judge on the D.C. Circuit Court in 1980, he left his practice in New York to move to Washington and support her career, something unheard of at the time for a husband to do. When there was an opening on the Supreme Court, Marty lobbied everyone he possibly could in Washington to have RBG appointed. She supported him too, helping him through an early bout of testicular cancer while in law school together and raising their young kids while he focused on developing his practice. In the end, though, he wound up happily playing second fiddle to his brilliant jurist wife.

The book chronicles their relationship and love in the context of RBG’s development as a pathmarking (a word she loves) feminist lawyer, and ultimately as the second woman on the Supreme Court. Despite always being the smartest person in the room, RBG faced early pushback while attending Harvard Law School, being told by the dean she was taking the seat of a qualified man. The professors who supported her had to almost beg federal judges to take her for a clerkship, with several openly saying that they wouldn’t hire a woman. And when corporate law firms wouldn’t hire her out of her clerkships, RBG took the advice of a Columbia Law professor who suggested she help him with a book about Swedish civil procedure.

This research changed her life. She traveled to Sweden for the book, where she absorbed the ongoing debates, far advanced from those in the United States in the early 1960s, about women’s role in society. This experience developed her dedication to fighting for women’s liberation’s—as well as for men’s liberation. As the book makes clear, throughout her time as a law professor and at the ACLU Women’s Rights Project, RBG fought for gender equality across the board, believing that the only way women could truly be free was if men also were liberated from the stereotypes of masculinity that bound them.

Many of the cases she took to the Supreme Court reflected this belief—those on behalf of men (like her husband) taking on non-traditional gender roles and the government treating them poorly as a result. RBG was convinced that challenging the sexism behind men’s stereotypes would also free women from the shackles of bigotry as well. Largely because of her dogged pursuit of feminist justice, in a series of cases in the mid-’70s, the Court changed the way it viewed sex discrimination under the Constitution.

RBG was a star litigator who had changed an entire body of law, and she was rewarded by President Carter appointing her to the D.C. Circuit, the federal appeals court in Washington. There, RBG didn’t make many waves, instead hewing closely to Supreme Court precedent and garnering a reputation as a moderate. In fact, based on one study mentioned in Notorious RBG, she voted with Robert Bork 85 percent of the time—yes, that Robert Bork, the uber-conservative, failed Supreme Court nominee who is widely recognized as one of the foremost progenitors of extreme originalism. When Justice Byron White announced his retirement from the Supreme Court in 1993, President Bill Clinton took months before settling on RBG as White’s successor. At the ceremony announcing the nomination, Clinton hailed RBG as a moderate.

Part of this perception came from her longstanding criticism of Roe v. Wade. As much as RBG supported abortion rights and thought them essential to women’s equality, she had written and spoken repeatedly about her belief that Roe was decided too broadly and under the wrong principles. She thought an opinion based on women’s equal citizenship rather than privacy, and which avoided the unnecessary discussion of the trimester framework, would have been more grounded in the Constitution and better for the country as a whole. She didn’t question the importance of abortion for women’s rights or the correctness of the case’s ultimate result in striking down Texas’ prohibition on abortion, but that nuance was lost on the general public. Because she had criticized Roe, she was seen as a Democratic appointment who would not be radical.

Two decades later, with an Internet meme dedicated to her powerful words on behalf of liberal causes, Clinton’s “moderate” appointment seems to have been either a mistake or a clever head-fake. As the book makes clear, RBG has not written many powerful liberal majority opinions in her time on the Court, though her opinion finding that the Virginia Military Institute’s prohibition on women attending the school was unconstitutional sex discrimination acted as a wonderful cap to her past career as a women’s rights constitutional litigator. Beyond that, Notorious RBG doesn’t discuss her important majority decisions around access to the courts for the poor or criminal justice. Overall, however, the Court has been too conservative during her tenure for her to write many other majority opinions in the high-profile cases that have divided it.

Instead, as the book so powerfully details, RBG has found her voice, particularly in the past several years, as the newest Great Dissenter on the Court. A title previously held by Justices John Marshall Harlan, Oliver Wendell Holmes, and Thurgood Marshall, the Great Dissenter speaks in powerful words and is often vindicated by history. That is the position in which we now find RBG. Her pithy and pointed dissents about employment discrimination, voting rights, abortion restrictions, contraceptive access, Medicaid expansion, and affirmative action, all well-chronicled in the book, have garnered her the admiration of millions. No doubt, RBG and her legion of followers hope that history vindicates her as well, and that one day in the near future she’ll be writing majority opinions on those topics.

In light of everything the book covers about RBG’s life—her deceptively frail appearance, her love of opera, her extreme intelligence and bookishness, her lifelong commitment to social justice through law—perhaps the greatest RBG contrast is her enthusiastic acceptance of the Notorious RBG label. In her ninth decade of working harder and being smarter than almost everyone else around her, as Notorious RBG makes clear, it’s not only the most creative Supreme Court nickname ever, but it’s also probably the best-deserved one too.

Investigations Human Rights

Sentenced to Abuse: Trans People in Prison Suffer Rape, Coercion, Denial of Medical Treatment

Zoe Greenberg

Trans prisoners continue to be housed in facilities with the opposite gender, resulting in discrimination, trauma, and rape.

Read other pieces in Rewire’s Women, Incarcerated series here.

In 2009, Janetta Johnson was sentenced to 71 months for possession and intent to distribute methamphetamine. When the economy plummeted in 2008, Johnson says she panicked and, like many women offenders, began selling drugs as a way to survive.

What makes Johnson’s case stand out, however, is that she is a trans woman. Designated as male at birth, Johnson has identified and lived as a woman since she was a child.

Nonetheless at her sentencing, the judge presiding over her case sent her to Sheridan federal correctional institution, a facility 50 miles southwest of Portland, Oregon that houses more than 1200 male inmates.

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“When I was first sentenced to the men’s facility, I told the judge, ‘You know you’re sentencing me to sexual abuse too,” Johnson told Rewire. “It’s highly likely that a transgender woman in a men’s facility will be sexually assaulted. There’s no ifs, ands, or buts about it.”

Johnson’s prediction turned out to be correct. At Sheridan, she says she experienced sustained sexual assault, including resorting to oral sex to avoid penetrative rape. She also endured harassment from guards, and inadequate medical treatment for her gender dysphoria. The officials charged with her protection often made things worse.

“When we as transgender people make a request for safety, they feel like we’re asking for extra privilege,” Johnson told Rewire.

Johnson was released from custody in April 2013. She is now the program director for the Transgender, Gender Variant, and Intersex Justice Project, an activist organization made up of low-income transgender women of color and their families, who are in prison, formerly incarcerated, or targeted by the police. She is focused specifically on re-entry services for trans women of color leaving prison.

Johnson’s experience of sexual violence in prison is not unique among trans individuals, who, because of continued social stigma and exclusion, are overrepresented among the nation’s incarcerated population.

Discriminated against for housing and employment, trans people face homelessness and poverty at exceptionally high rates. In a 2000 survey of 252 gender variant residents of Washington, D.C., 29 percent of respondents reported no source of income. Another 31 percent reported annual incomes under $10,000. Poverty and lack of opportunity lead to crimes of survival, like sex work, drug sales, and theft, according to a 2007 report by the Sylvia Rivera Law Project.

Despite these realities, correctional systems have so far failed to meet the needs of the trans people, who continue to suffer severe sexual assault, as well as psychological harm from consistent denial of medically necessary hormone treatment, gender-appropriate clothing and personal hygiene products. And, like Johnson, trans individuals are almost always mis-housed in facilities intended for people of the opposite gender.

“Overall, prisons are incredibly gendered spaces,” Jennifer Orthwein at the Transgender Law Center told Rewire. “Right now trans prisoners are at extreme risk for a whole host of damaging and traumatic consequences.”

Rewire’s Women, Incarcerated series documents systemic abuses in prisons and jails that affect women, whose numbers behind bars continue to grow. The experience of trans people further underscores the brutally gendered nature of incarceration.

“I Had to Negotiate”

The word trans encompasses a whole range of identities on the gender spectrum, including people who are transgender, transsexual, genderqueer, and gender nonconforming. Trans is a term for someone who is not a cisgender woman or man.

In the past year, there has been a slow but steady increase in mainstream knowledge and understanding of trans people and the issues they confront.

Popular television shows feature trans characters, and most recently, former Olympian and reality TV star Bruce Jenner publicly announced that he is in transition, becoming a woman. The White House has taken steps to expand legal protections to transgender people.

But trans advocates told Rewire that pop culture can paint a misleadingly rosy picture of life for many trans men and women. Experts were quick to point out that if Laverne Cox’s character in Orange Is the New Black went to prison in real life, she would almost certainly be sent to a men’s facility, where being the sole woman among hundreds of men would jeopardize her physical and mental safety.

It’s difficult to determine how many trans individuals are currently in prisons or jails. The Bureau of Justice Statistics estimates that there were 3,209 transgender prisoners in state and federal facilities in 2011-2012, or about 0.22 percent of the national prison population, according to National Center for Transgender Equality calculations. The justice bureau estimated there were 1,709 transgender inmates in local jails, or about 0.23 percent of the national jail population.

But trans experts say these numbers are likely a gross underestimate. Most corrections facilities don’t keep track of people who identify as trans, and the justice bureau’s data are based on the narrow questions on the National Inmate Survey, which only offers prisoners three options for their gender identity: male, female, or transgender. When the question is asked this way, a large number of transgender people may simply check off “male” or “female,” according to the National Center for Transgender Equality.

The danger of identifying as transgender in prison could also skew the numbers, according to the Sylvia Rivera Law Project, an organization that provides free legal aid to low-income transgender, gender non-conforming, and intersex people of color. Attorneys and advocates at the project say that often prisoners will write two or three letters to them before actually identifying as trans, because of the stigma and vulnerability of that identity in prison, as well on the outside.

In 2011, the National Gay and Lesbian Task Force surveyed 6,450 transgender and gender non-conforming people across the country. Sixteen percent of respondents reported they had been incarcerated at some point in their lives. The risk of incarceration was more pronounced for people of color: 47 percent of Black respondents and 30 percent of American Indian respondents reported they had been incarcerated.

In the past few months, trans prisoners and activists have cautiously celebrated two legal developments that signal progress in the treatment of incarcerated transgender people: Georgia agreed to provide hormone therapy for transgender inmates in state prisons, and a federal judge in California ordered that the California Department of Corrections grant a transgender inmate access to gender-affirming surgery.

But in most jurisdictions, conditions remain deplorable, in part because the vast majority of trans people are housed with inmates of the opposite gender.

At Sheridan, Janetta Johnson says she was the only out trans woman on the compound. Her physical appearance prevented her from being able to pass as a man, even if she had wanted to. With long, black hair, carefully made-up features, and an array of necklaces and earrings, today she looks like any other woman on the streets of San Francisco.

“There was no real way I couldn’t be ‘out,” Johnson says. “I have 38 DDs.”

There were a few other inmates who Johnson suspected were trans women, but she says they would not associate with her because they feared for their physical safety. They claimed to have wives and children back home, and they would not speak or make eye contact with Johnson.

Janetta Johnson

Janetta Johnson is a trans woman who served time at Sheridan, a men’s prison in Oregon.

Tangela Bivens, Johnson’s sister, was one of Johnson’s main advocates during her incarceration.

“I just feel like they didn’t protect her enough. She used to say that people would threaten her,” Bivens told Rewire. Bivens says she called Sheridan to say that her sister was being threatened, but the situation on the ground didn’t change.

“I would cry and cry,” Bivens said. “I used to work overtime just to make sure that I could send her money, so that if something happened, her excuse wouldn’t be, ‘I didn’t have enough money to call.’”

A National Prison Rape Elimination Act (PREA) audit, published in April 2014—two years after Johnson’s release—paints a different picture of conditions for trans prisoners at Sheridan than what Johnson says she experienced. The report said there were four transgender people housed at Sheridan, and the facility met all federal PREA standards, including screening prisoners who might be at risk for victimization and abuse, and training staff on how to conduct pat downs on cross-gender and transgender people. No grievances had been filed regarding sexual abuse at Sheridan, according to the report.

It is difficult to determine whether conditions had simply changed since Johnson’s time at the facility. Sheridan did not answer Rewire’s questions about Johnson’s allegations of sustained abuse, or the facility’s current treatment of trans prisoners.

Johnson describes Sheridan as a place of relentless, life-or-death negotiations for safety, with sex as one of the only bargaining chips. Constantly at risk of being raped, she endured some sexual acts in exchange for protection.

“The best way I can describe it is, I was being raped, and I had to negotiate,” Johnson said.

Many trans women in prison submit to coercive sex—a form of sexual violence—for protection or access to hormones, according to National Prison Rape Elimination Commission testimony. A UC Irvine study found that sexual assault is 13 times more prevalent among transgender inmates than the general prison population, with 59 percent of transgender prisoners reporting being sexually assaulted while in a California correctional facility.

Often, Johnson says, she would wake up to find her cellmate touching her breasts and fondling her. She went to report the assault to a guard, but before she could finish, the guard urged her to stop, according to Johnson. The only place he could house her for protection was in the Security Housing Unit (SHU), a solitary confinement cell where she would be locked in for 23 hours a day. In addition to the isolation, the SHU would make Johnson ineligible for the prison’s residential drug treatment program, and the 18-month-early release that went with it. To stay out of the SHU, Johnson realized she had to face the sexual violence by herself.

Claire Leary, Johnson’s court-appointed lawyer, represented Johnson from 2009 to August 2010, and received troubling letters and phone calls from Johnson while she was at Sheridan.

“I just remember it was a horrible bind,” Leary told Rewire, of Johnson’s time at Sheridan. “You can’t get the access to services or treatments you need, without being in danger.”

A Matter of Life and Death 

In early April of this year, the Justice Department backed a case filed by Ashley Diamond, a trans woman serving time at a maximum-security men’s prison in Georgia. Diamond’s lawsuit details the nightmarish conditions of her incarceration: placement in solitary confinement for “pretending to be a woman,” brutal assaults by fellow inmates, and complete disregard from staff about her safety.

But perhaps most traumatic of all, the lawsuit describes how Diamond was denied the hormones she had taken for 17 years before her incarceration. Without the necessary medication, Diamond “violently transformed,” losing breast tissue and experiencing muscle spasms, according to the lawsuit. Diamond’s lawyer, Chinyere Ezie, said Diamond has attempted to castrate herself so she can go back to being the woman she knows she is.

Since childhood, multiple medical providers had diagnosed Diamond with gender dysphoria, a medical condition in which one’s gender identity differs from the gender assigned at birth, causing clinically significant distress. If gender dysphoria is untreated, it can lead to suicidal ideation, and the impulse to self-castrate and self-harm. People with gender dysphoria are often called transsexual or transgender.

There has long been debate about how to treat people with gender dysphoria. In some areas, draconian policies have given way to more humane ones.

The Federal Bureau of Prisons (BOP) used to have a “freeze-frame” policy for people who had gender dysphoria, which froze treatment at the level it was when a person was incarcerated. If, for example, a trans woman was not taking any hormones before she was incarcerated, she would be unable to access hormones during her incarceration, even if prison doctors diagnosed her with gender dysphoria while she was behind bars.

In 2011, BOP changed their policy in response to a lawsuit, and released a memo stating, “Treatment options [for people with gender dysphoria] will not be precluded solely due to level of services received, or lack of services, prior to incarceration.”

The National Commission on Correctional Healthcare (NCCHC), which accredits prison health-care programs, has written that freeze frame policies are “inappropriate and out of step with medical standards.” In court filings earlier this month, the Department of Justice wrote that freeze frame policies are unconstitutional, and violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

Despite medical and legal consensus, trans people in prisons and jails often cannot access the hormones they need.

In the National Gay and Lesbian Task Force survey of 6,450 trans people across the country, 17 percent of people who had been incarcerated reported denial of hormones while in prison. Black and low-income respondents reported even higher rates of denial.

In general, prison healthcare is notoriously bad. Prisoners have sued for being denied prenatal treatment, medically indicated methadone, cancer treatment and mental health services. Even given this backdrop, the authors of the 2007 Sylvia Rivera Law Project report claim that within a context of neglectful and inadequate medical care, trans people in prison receive “additional forms of care-related discrimination and neglect.”

A week after the Justice Department signed on to Diamond’s case, the Georgia Department of Corrections agreed to provide Diamond with hormones. But the dose is still too low to be therapeutic, according to Diamond’s lawyers.

Last week, the federal Department of Corrections transferred Diamond back to a medium-security facility in Georgia after an inmate at the maximum-security prison touched her face, and after Diamond received a sexually threatening note from another inmate, according to news reports. Her lawsuit says that the only time during her incarceration that she has not been subject to sexual abuse was when she was at the same medium-security facility. However, it is unclear whether the transfer will have any effect on her access to hormone therapy.

Diamond is not the only transgender prisoner who has sued for hormones in prison.

Keirra Lacey James is a trans woman currently incarcerated at the Pontiac Correctional Center, a maximum-security prison for men in Illinois. In a handwritten complaint filed in 2012, James detailed how she was denied hormone treatment for her gender dysphoria, even though she had lived as a woman since the age of 16 and had been diagnosed with gender dysphoria by a prison psychiatrist.

When she asked for hormone treatment, the medical director of the prison told James, “We don’t give out hormones. You didn’t get them when you were free, and you won’t now. Deal with it.”

In neat, looping script, James wrote that she had attempted to mutilate her arms, legs, and genitals, and had been on suicide watch multiple times since being denied treatment.

The Illinois Department of Corrections settled with James in October 2014, and denied liability, according to Nicole Wilson, a spokeswoman for IDOC. In an email to Rewire, Wilson said the department could not comment on any specific treatment currently provided to an inmate. She added that the IDOC has not enacted any new policies regarding hormone treatment since the lawsuit.

Joey Mogul, a lawyer for James, says that part of the settlement stipulates that if any changes are made to James’ hormone treatment, the Illinois Department of Corrections must tell James’ lawyers.

“[Keira] courageously sought the treatment on her own,” Mogul told Rewire. “I’m hoping that the tide is turning. All prison and detention institutions have a duty to provide this necessary medical treatment.”

Ezie, Diamond’s lawyer, emphasizes that for transgender inmates like Diamond and James, hormone therapy is not cosmetic.

“It’s not about playing dress up. It’s a matter of life and death,” Ezie told Rewire. “It’s about feeling like you’re living in the right body, and like you have a compelling reason to live.”

Forced Feminization

In addition to high rates of sexual assault and lack of medical care, trans prisoners also describe a general atmosphere of hostility aimed at people who do not express the “correct” gender while incarcerated.

Cookie Concepcion is a trans male activist who has been incarcerated at the Central California Women’s Facility since 1998. In a phone interview with Rewire, Concepcion described a system of “forced feminization,” in which he and other gender non-conforming inmates are disciplined for not obeying rigid gender rules.

Cookie Concepcion is a trans male activist and member of Justice Now, who is currently serving time at the Central California Women's Facility.

Cookie Concepcion

The rules can seem bizarre. Concepcion says inmates had to fight to be allowed to purchase products “made for men”—like Axe body wash, or Irish Spring soap—because they live in a women’s prison.

A spokeswoman for the California Department of Corrections and Rehabilitation said, “Our policies allow for transgender inmates to purchase items that particular gender would use.” She added that she did not know whether someone who wasn’t diagnosed as transgender could purchase those products.

“What was a scent going to do to somebody?” Concepcion asked. “If a bar of soap says ‘men’ on it, how does that affect the rehabilitation of someone in this institution?”

The prison’s policies target even minute details that people on the outside often take for granted. If a prisoner is not officially diagnosed with gender dysphoria, that prisoner cannot wear boxers, and must wear women’s underwear. (California’s policy on the treatment of transgender prisoners is available here.)

Concepcion says this policy makes no sense, considering the number of inmates who are lesbian, bisexual, or gender non-conforming, but who do not identify as transgender.

“Anybody can walk into any store, lawfully, and they can purchase any type of undergarment they want, and wear it,” Concepcion says. “I want to know what it is about prison that has to regulate that? What is the safety and security issue?”

Sasha Alexander at the Sylvia Rivera Law Project, says this type of policy is understandable within a system meant to impose control at all levels.

“They’re doing this to break people down and discourage people from having gender self-determination,” Alexander told Rewire. “On the outside, this happens as well, but [prison officials] are even more able to enforce those binary ideas of sex and gender.”

Concepcion believes that no matter what he does, he will never fit the image of a rehabilitated female prisoner that the officials at CCWF are looking for. Originally arrested for gang-related murder, Concepcion says he has changed dramatically. He has participated in an at-risk youth intervention program and multiple self-help groups behind bars. He works as a clerk, providing recreational therapy for developmentally disabled people. He also serves on the board of directors of Justice Now, a human rights organization that provides free legal services to people incarcerated in California women’s prisons.

Even so, Concepcion says administrators see his masculinity as a sign that he is still a criminal.

“Really what’s sad about it is the fact that I am so freely able to claim [my gender identity] shows such a growth in my self-esteem. They have it so backwards,” Concepcion says.

When asked whether masculinity could be seen as a sign that a female inmate has not rehabilitated, the spokeswoman for the California Department of Corrections and Rehabilitation told Rewire, “I’ve never heard anyone say that, and I’ve never known anyone to believe that.”

In terms of how to make prisons safer spaces for trans people, activists and currently and formerly incarcerated people were quick to say that the fundamental problem is the disproportionate policing and incarceration of people in the trans community.

Even so, there are some obvious ways to reform the system, according to Alexander of the Sylvia Rivera Law Project. Department of Corrections staff should be trained so they know what it means to be transgender, and what specific safety and health concerns the transgender community may have. Transgender and gender non-conforming administrators and health-care providers should be hired, and trans-specific programs and self-help groups should be available to incarcerated people. Prison health care (which is often inadequate) should include “safe, affirming access to hormones,” and people should not be housed based on their genitalia, but instead where they feel most safe. Finally, prisons should not use solitary confinement as the primary means of protecting trans people behind bars.

But activists say that to truly change the trans community’s relationship with incarceration, they must tackle the underlying problems of poverty, homelessness, and discrimination on the outside.

As Colby Lenz, a volunteer for the California Coalition for Women Prisoners, told Rewire, “What we don’t need is a better cage. What we need is more support and services and resources for people, before they get trapped in prison.”

Editor’s note: In some cases, the individuals in this story have chosen new names that reflect their gender identity. Rewire has reviewed public records to reference legal names in each of these cases. Rewire uses the names preferred by these individuals. Also, this article uses the word trans to refer to transgender, transsexual, genderqueer, and gender nonconforming individuals. A prior version used the term trans*, but we have clarified the terminology in this piece to reflect the current language used in the LGBTQ community.