Analysis Law and Policy

The Trump Administration Is Risking the Lives of Trans People Behind Bars

Lisa Needham

If this feels like just the latest in a long line of attacks on trans people by the Trump administration, that's because it is.

Late last week, the Trump administration took an unsurprising but nonetheless devastating step: It changed the rules regarding where transgender people in federal prison should be housed and how they should be treated. Even for an administration that has made no secret of its disdain for trans people, this is an especially disastrous policy change.

The key change—which the Federal Bureau of Prisons (BOP) announced via changes to its Transgender Offender Manual—is small but drastic. Under President Barack Obama, the BOP was specifically instructed to “recommend housing by gender identity when appropriate.” That language ensured that trans prisoners held in federal prisons, which the BOP governs, had a chance to be housed in the facility that aligned with their gender identity.

Now, that language has been removed entirely. Instead, the manual now tells BOP personnel that they must use “biological sex” as the initial determination for where a prisoner will be held. The manual still allows for consideration of other factors, such as risk to the transgender offender and the behavioral history of the inmate. However, the manual makes clear that the chance transgender inmates will be properly housed is vanishingly small by stating that “the designation to a facility of the inmate’s identified gender would be appropriate only in rare cases … where there has been significant progress towards transition as demonstrated by medical and mental health history.”

The ostensible reason for these changes is that the BOP is concerned with “maintaining security and good order” in federal prisons. There’s a paucity of research as to the trans inmate experience, but what there is does not show that trans inmates are a threat to security and order. Instead, it shows that prisons are dangerous, violent, terrifying places for transgender people to be—especially prior to the Obama-era changes. Federal prisons are unsafe and understaffed, which affects all the inmates housed there. But housing trans individuals in facilities that don’t conform to their gender identity adds a unique additional layer of problems.

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As the National Center for Transgender Equality points out, data from the U.S. Department of Justice (DOJ) says that one in three transgender women who are incarcerated will be sexually assaulted while in prison. The assault rate is likely worse when trans women are held in men’s prisons. In one study of California state prisons, almost 60 percent of trans women housed in men’s prisons reported they had been sexually abused. Trans individuals who are incarcerated also face disproportionate levels of verbal assault and sexual harassment, and those issues are rarely addressed even when reported to prison staff. The BOP’s policy change strips away the meager protections Obama had begun to put in place and leaves trans inmates incredibly vulnerable.

There’s no doubt that this change was agitated for by people like U.S. Attorney General Jeff Sessions, head of the DOJ (which oversees the BOP), given his ongoing animus towards trans individuals. However, the specific impetus for this change is likely four evangelical Christian women prisoners housed in Texas who filed a lawsuit saying that the Obama-era guidelines violated their constitutional rights by placing trans women inmates in their facilities, calling it cruel and unusual punishment and “gender discrimination.”

In August 2017, the DOJ filed a brief opposing the women’s efforts to obtain a preliminary injunction to bar the BOP, nationwide, from enforcing the then-existing guidelines that allowed for proper placement of trans individuals in facilities conforming with their gender identity. The DOJ noted that the plaintiffs hadn’t met the high burden required to obtain a preliminary injunction. They weren’t housed in the the same units as the transgender prisoners and none of the hostile acts they alleged, such as transgender women exposing themselves, could be substantiated. But the government then reversed course, entered into settlement talks with the anti-trans plaintiffs, and signaled it would roll back trans prisoner protections.

Like so much else of what Trump does, this seems designed to strike at the heart of Obama’s legacy. It undercuts the protections enshrined in the Prison Rape Elimination Act. That law wasn’t trans-specific, but in 2012, the DOJ implemented rules and policies that recognized “the particular vulnerabilities” of trans and gender non-conforming inmates, provided protections against assault and harassment, and required that all inmates be screened at admission and their risk of abuse assessed.

As the American Civil Liberties Union wrote in 2012, “the regulations also require agencies to make individualized housing and program placements for all transgender and intersex individuals. This includes assignment of transgender and intersex individuals to male or female facilities. All such program and housing assignments must ‘be reassessed at least twice each year to review any threats to safety experienced by the inmate’ and an individual’s ‘own views with respect to his or her own safety shall be given serious consideration’ in these assessments.” Trump’s latest move left these official rules in place, but effectively allows prison officials to sidestep them by prioritizing “biological sex.”

If this feels like just the latest attack in a long line of attacks on trans people by the Trump administration, that’s because it is.

Of course, there’s the trans military ban, which has been one of the highest-profile and longest-running battles for trans people. Trump announced the ban via Twitter back in July 2017, claiming that having trans people serve erodes unit cohesion and military readiness and would significantly increase medical costs. This was a cruel and capricious move that flew in the face of all the carefully gathered evidence to the contrary. Although no fewer than four separate injunctions had been issued to block the implementation of the ban, the administration issued what was essentially version 2.0 of the ban in late March. Since that revised version was issued, one court—the U.S. District Court for the Western District of Washington—has upheld a previous ruling enjoining the ban from taking effect.

Thanks to Trump’s Department of Health and Human Services (HHS), trans people will also likely face increased discrimination when they seek out health care. Under Obama, the HHS used Section 1557 of the Affordable Care Act, which prohibits insurers from discriminating on the basis of sex, to provide protections to trans patients. Contrast that with the “federal conscience” provision that Trump’s HHS hopes to enact. Under the proposed rule, it would be permissible for health-care providers to refuse to treat trans individuals, or provide transition-related health care services, based on a religious or moral objection. They wouldn’t even be required to refer a trans person to another provider, which could lead to trans individuals being denied critically necessary health care.

Sometimes the blows are as petty as they are unnecessary, but they are deeply harmful nonetheless. Witness the decision to tell policy analysts at the Centers for Disease Control that they could not use the term “transgender” in official budget-related documents. This sort of erasure might seem minor, but it isn’t: It can lead to lower-quality healthcare outcomes and increased mental health struggles for trans individuals.

One of the most pernicious attacks on trans rights has come via the U.S. Department of Education (DOE), where Betsy DeVos has spearheaded several aggressive policy changes that directly target trans students. Under Obama, young trans people were able to look to the DOE to protect them when they faced discrimination at school. That is no longer the case. Earlier this year, the DOE confirmed it will simply no longer investigate the complaints of trans students who are prevented from using the school bathrooms and locker rooms that conform with their gender identity.

And of course, even when trans people aren’t the explicit target of such actions, they are members of other groups the Trump administration is putting in harm’s way—such as undocumented immigrants, disabled people, or sex workers.

At the very least, these changes erase trans identity. At their very worst, they subject trans people to real and substantial dangers. What’s clear is this: With the administration making so many of these changes in such a short time, the real goal is to dehumanize trans people and place them in constant fear.

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