Analysis Law and Policy

Bailing Out Black Mamas Means Bailing Out Trans People

Rachel Anspach

Southerners on New Ground hopes that the organizing strategies it is developing in partnership with the Transgender Law Center will provide guidance to other organizations in the bailout coalition that are also facing difficulties finding trans and gender-nonconforming folks to bail out.

Since the launch of the National Bail Out campaign last Mother’s Day, the process for freeing trans and gender nonconforming (TGNC) Black individuals awaiting trial has been a continued challenge. U.S. jails generally place people according to their sex assigned at birth and don’t collect data on gender identity, making incarcerated TGNC people difficult to locate. Nevertheless, organizers remain steadfast in their resolve to bail out these “pillars of our communities” and reunite them with their loved ones, organizer Micky Bradford told Rewire.News.

“We are really intentional about naming this as ‘Black Mama’s [Bail Out],’ and really intentional about Black mamas including transgender parents and caregivers who are nonbinary or gender nonconforming,” said Bradford, a regional organizer with [email protected], a collaboration between Southerners on New Ground (SONG) and the Transgender Law Center (TLC).

The effort to raise awareness and free TGNC people from jail is imperative because, as Bradford explained, “We often just hear about trans people dying—from police brutality, street harassment, or intimate partners—but we rarely hear about how bail affects trans folks and tears chosen families apart.”

On any given day, around 450,000 people languish in jails across the country simply because they cannot afford to pay bail. When judges assign bail to defendants awaiting trial, they force individuals who have not yet been tried or convicted of any crime to remain behind bars solely due to poverty. Like every facet of the U.S. criminal justice system, cash bail disproportionately subjugates Black people. Judges are more likely to charge Black defendants bail and to assign them higher bail amounts for the same charges compared to white defendants.

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Because there are no official incarceration records on gender identity, there is a data vacuum regarding how TGNC people are affected by mass incarceration and cash bail. But the information that advocacy groups have gathered demonstrates the hyper surveillance and criminalization of Black trans people across the country.

The 2015 U.S. Transgender Survey, which disaggregated data by race, found that nearly half of Black trans people have experienced incarceration. Sixty-one percent of Black respondents reported mistreatment in interactions with the police. One of the most prevalent ways trans people are over-policed is through the criminalization of sex work, for which Black trans women are disproportionately targeted by police. Trans people are also targeted through selectively enforced laws criminalizing HIV, which trans people, particularly women of color, are more likely to contract than the general U.S. population. Bathroom discrimination bills not only criminalize TGNC people for using the restroom of their choice, but also normalize the policing of individuals based on nonbinary gender presentation.

Black trans people are also unlikely to be able to afford bail. Due to transphobia in education and employment, 38 percent of Black trans people live in poverty, compared to 12 percent of the general population and 24 percent of Black people. Forty-two percent of Black trans people have experienced homelessness, and 28 percent have had to work in the underground (illicit) economy to survive. Because nearly half of Black trans people have experienced family rejection, they may also be less likely to have a support network that can afford to bail them out. When they are incarcerated, trans people face staggering rates of sexual and physical assault, harassment, and lack of critical health-care services.

Being held on bail also wreaks havoc in individuals’ lives and tears families apart—whether they are biological or chosen. It can lead to losing a job, apartment, or income needed to put food on the table.

Despite their commitment to centering those most harshly impacted by incarceration, organizers have faced significant logistical challenges with locating TGNC individuals to bail out. Last Mother’s Day, SONG was only able to bail out three TGNC people; an additional two were denied bail.

U.S. jails imprison individuals according to a binary definition of gender, and usually place people according to their genitals or sex assigned at birth. On top of this, jails often isolate trans people in solitary confinement or mental health wards, making it much more difficult for organizations offering support services to reach them.

“There is no system for tracking if someone is transgender, and jails are not culturally competent,” said Flor Bermudez, legal director at the TLC. “There is no way to find transgender people in jail unless they self-identify to their friends and family, their friends and family know that they are there, and they tell an organizer that the person is inside. It is extremely difficult to find them because all of the data that’s trackable public information will have their sex assigned at birth and no gender identity.”

Community networks and safe spaces for queer and trans people have been key to finding more trans mamas to bail out. This year, SONG created a hotline that individuals in or outside of jail in Atlanta can call to inform them about someone who needs to be bailed out. TLC is also partnering with SONG to provide legal consultation and technical assistance to organizers conducting bailouts across the South.

“Last year’s bailout really taught us so much,” said Mary Hooks, co-executive director of SONG, which has been a leader in the bailout campaign. “One thing we saw that was most effective in trying to identify trans and gender nonconforming people was community building and outreach. Some of our people are hitting the streets where we know are safe spaces for TGNC people so folks know what we’re doing. If they know somebody that gets picked up during this time, or if they know someone who’s currently in there, they have our hotline.”

SONG hopes that the organizing strategies it is developing in partnership with TLC will provide guidance to other organizations in the bailout coalition that are also facing difficulties finding TGNC folks to bail out. Over the past year, racial justice organizations across the country have bailed out around 200 people, with donations totaling nearly $1 million from more than 14,000 individuals. Last Mother’s Day alone, the National Bail Out campaign paid bail for more than 100 Black mamas and shined a spotlight on the injustices of the cash bail system.

Just this week, in a landmark victory for the bail out movement, Google banned bail bond advertisements from its platforms on May 7, following advocacy from the Essie Justice Group, Civil Rights Corps, Color of Change, Upturn, and the Vera Institute of Justice.

The bailout campaign forms part of the Movement for Black Lives’ broader agenda to combat the criminalization of Black trans and queer people. SONG is also developing more Black LGBTQ organizers, who can play a leadership role in advocating for the rights of those in their communities. TLC brings class action lawsuits across the country in order to change laws that discriminate against TGNC people. In a landmark victory in 2015, TLC represented Shiloh Quine in a case that forced California to offer gender-affirming health care, including surgery, to incarcerated individuals, and to allow trans prisoners access to clothing and commissary items consistent with their gender identity.

Other groups around the country have also been offering support to trans women taken into custody. The Transgender, Gender Variant, and Intersex Justice Project (TGIJP) has pioneered a model for aiding trans women during and after incarceration. The organization goes into Bay Area jails and prisons weekly to conduct political education and monitor the well-being of trans prisoners. It also has a re-entry program offering employment opportunities to trans individuals coming out of jails and prisons to work at their organization. “Hopefully one day we’ll have an organization full of formerly incarcerated trans women on this side of the fence,” said Janetta Johnson, executive director of TGIJP, which has also been offering support to bailouts in the Bay Area.

The efforts to include trans caregivers in the Black Mamas Bail Out reflect a commitment to center those most marginalized by the United States’ oppressive societal structures within the movement for Black liberation. “We actually cannot separate our race, our gender, or our class. We can’t separate those into bite-sized issues that we then rally around,” said Bradford, who identifies as a Black transfemme. “The systems that are oppressing trans people are the systems that are oppressing immigrants, are the systems that are oppressing Black folks, are the systems that are oppressing poor and working folks. It goes on and on. These are intersectional issues and so we have to treat them that way.”

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