Abstract
The Prison Rape Elimination Act (PREA) contains several protections for transgender inmates; specifically, that prison administration understands key definitions of “transgender,” that inmates are provided with the appropriate classification and housing, and they are kept safe from victimization by other inmates and staff. A total of ten states were found to be fully compliant by the Department of Justice deadline in 2015, but these policies are changing rapidly in the USA. This analysis aims to determine the status of each state’s protections using publicly available information about correctional policies. We find that approximately half of the states in the USA have published policies consistent with PREA, but several maintain policies regarding transgender inmates that are in direct conflict with federal law. Recommendations for compliance are provided.
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Notes
While several provisions of PREA also mention and/or include intersex inmates, for the purposes of this research, only transgender-specific protections are considered.
References
Alabama Department of Corrections. (2005). Gender identity disorder. Retrieved from http://www.doc.state.al.us/docs/AdminRegs/AR637.pdf.
Alabama Department of Corrections. (2016). Inmate sexual abuse and harassment. Retrieved from http://www.doc.state.al.us/docs/AdminRegs/AR454.pdf.
Arizona Department of Corrections. (2015). Department order manual, chapter 800: Inmate management (Section 810, Management of LGBTI Inmates). November 26th. Retrieved from https://corrections.az.gov/sites/default/files/policies/800/0810_-_effective_11-26-15.pdf.
Au, J. (2016). A remedy for male-to-female transgender inmates: Applying disparate impact to prison placement. American University Journal of Gender, Social Policy, and the Law, 24(3), 371.
Beck, A. J. (2014). Sexual victimization in prisons and jails reported by inmates, 2011-2012 (supplemental tables: prevalence of sexual victimization among transgender adult inmates). Washington, DC: Bureau of Justice Statistics. (NCJ 241399).
Beck, A. J., Berzofsky, M., Caspar R., & Krebs, C. (2013). Sexual victimization in prisons and jails reported by inmates, 2011–2012. National Inmate Survey, 2011–2012. Washington DC: Bureau of Justice Statistics. (NCJ241399).
Bureau of Justice Assistance. (2017). Prison rape elimination act. Retrieved from https://www.prearesourcecenter.org/about/prison-rape-elimination-act-prea.
Commonwealth of Pennsylvania Department of Corrections. (2016). Prison rape elimination act (PREA). Retrieved from http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/008%20Prison%20Rape%20Elimination%20Act.pdf.
Cook County Sheriff. (2017). Cook county department of corrections. [Website]. http://www.cookcountysheriff.org/doc/doc_main.html.
Dedoose. (2017). Dedoose: Great research made easy. Retrieved from http://www.dedoose.com/.
District of Columbia Department of Corrections. (2014). Gender classification and housing. Retrieved from https://doc.dc.gov/sites/default/files/dc/sites/doc/publication/attachments/PP%204020.3E%20Gender%20Classification%20and%20Housing.pdf.
Faithful, R. (2009). Transitioning our prisons toward affirmative law: Examining the impact of gender classification policies on US transgender prisoners. Modern American, 5, 3.
Glezer, A., McNeil, D. E., & Binder, R. L. (2013). Transgendered and incarcerated: A review of the literature, current policies and laws, and ethics. Journal of American Academy of Psychiatry and Law, 41(4), 551–559.
Hawaii Department of Public Safety. (2014). Prison rape elimination act. Retrieved from http://dps.hawaii.gov/wp-content/uploads/2014/07/ADM.08.08.pdf.
Hawaii Department of Public Safety. (2015). Cross-hormone therapy transsexual/intersex patients. Retrieved from http://dps.hawaii.gov/wpcontent/uploads/2016/03/COR.10.1E.16.pdf.
Hawkins, K. (2011). Jail has new policy for transgender inmates: Gender-identification, rather than sex at birth respected under policy. NBC Chicago [Online Article]. http://www.nbcchicago.com/news/local/cook-county-jail-transgender-inmates-11951694.html.
Idaho Department of Corrections. (2011). Gender identity disorder: Healthcare for offenders with. Retrieved from https://www.idoc.idaho.gov/content/policy/562.
Iyama, K. (2012). “We have tolled the bell for him”: An analysis of the prison rape elimination act and California’s compliance as it applies to transgender inmates. Law & Sexuality, 21, 23–48.
Jenness, V. (2010). From policy to prisoners to people: A “soft mixed methods” approach to studying transgender prisoners. Journal of Contemporary Ethnography, 39, 517–533.
Jenness, V., & Fenstermaker, S. (2014). Agnes goes to prison: Gender authenticity, transgender inmates in prisons for men, and pursuit of the “real deal”. Gender and Society, 28(1), 5–31.
Jenness, V., & Fenstermaker, S. (2016). Forty years after Brownmiller: Prisons for men, transgender inmates, and the rape of the feminine. Gender and Society, 30(1), 14–29.
Jenness, V., Maxson, C. L., Matsuda, K. N., & Sumner, J. M. (2007). Violence in California correctional facilities: An empirical examination of sexual assault. Report submitted to the California Department of Corrections and Rehabilitation.
Jenness, V., Sumner, J., Sexton, L., & Alamillo-Luchese, N. (2014). Cinderella, Wilma Flinstone, and Xena the Warrior Princess: Capturing diversity among transgender women in men’s prisons. In C. Renzetti & K. Bergen (Eds.), Understanding diversity: Celebrating difference, challenging inequality (pp. 107–124). Upper Saddle River: Allyn & Bacon Press.
Jones, L., & Brookes, M. (2013). Transgender offenders: A literature review. Prison Service Journal, 206, 11–18.
Kansas Department of Corrections. (2016). Coordinated response to sexual abuse and harassment. Retrieved from https://www.doc.ks.gov/kdoc-policies/AdultIMPP/chapter-10/10103.pdf.
Kentucky Corrections. (2017). Lesbian, gay, bisexual, transgender, and intersex offenders (LGBTI). Retrieved from https://corrections.ky.gov/communityinfo/Policies%20and%20Procedures/Documents/CH14/CPP%2014.8%20eff%202-3-17.pdf.
Maine Department of Corrections. (2015). Management of transgender and intersex prisoners and residents. Retrieved from http://maine.gov/corrections/PublicInterest/policies.shtml.
Mazza, G.J. (2012). Review panel on prison rape: Report on sexual victimization in prisons and jails. U.S Department of Justice, Washington, DC.
McGaughy, L. (2018, March 26). Trump likely to undo Obama’s transgender prison policy ending Texas court battle. Dallas News. Retrieved from https://www.dallasnews.com/news/texas-politics/2018/01/04/trump-likely-undo-obama-era-transgender-prisoners-policy-ending-texas-court-battle.
Michigan Department of Corrections. (2015). Gender identity disorder (GID)/gender dysphoria. Retrieved from http://www.michigan.gov/documents/corrections/04_06_184_502843_7.pdf.
New Hampshire Department of Corrections. (2015). Standards for treatment of gender dysphoria. Retrieved from https://www.nh.gov/nhdoc/policies/documents/6-85.pdf.
New York State Department of Corrections. (2013). Gender identity disorder. Retrieved from https://srlp.org/wp-content/uploads/2012/08/HSPM-1.31-May-20-2013-version.pdf.
Okamura, A. (2011). Equality behind bars: Improving the legal protections of transgender inmates in the California prison system. Hastings Race & Poverty Law Journal, 8(2), 109–136.
Oregon Department of Corrections. (2017). Nonconforming gender (inmate). Retrieved from https://secure.sos.state.or.us/oard/viewSingleRule.action;JSESSIONID_OARD=5QYCmItyAMvWSZdjUUDOFhYqFdRYzcIuPIo11dy69AfflILnxEia!1243901809?ruleVrsnRsn=42800.
Peek, C. (2003). Breaking out of the prison hierarchy: Transgender prisoners, rape, and the eighth amendment. Santa Clara Law Review, 44, 1211.
Pew Research Center (2014). Party affiliation by state. [Website]. Retrieved from http://www.pewforum.org/religious-landscape-study/compare/party-affiliation/by/state/
Prison Rape Elimination Act, § 117–974 (2003)
Reisner, S. L., Bailey, Z., & Sevelius, J. (2014). Racial/ethnic disparities in history of incarceration, experiences of victimization, and associated health indicators among transgender women in the US. Women & Health, 54(8), 750–767.
Routh, D., Abess, G., Makin, D., Stohr, M. K., Hemmens, C., & Yoo, J. (2017). Transgender inmates in prisons: A review of applicable statutes and policies. International Journal of Offender Therapy and Comparative Criminology, 61(6), 645–666.
Scheel, M. D. and Eustace, C. (2002). Model protocols on the treatment of transgender persons by San Francisco County jail. National Lawyers Guild and the City & County of San Francisco Human Rights Commission.
Scott, A. V. and Lines, R. (1999). HIV/AIDS in the male-to-female transsexual and transgendered prison population: A comprehensive strategy. Briefing paper from the Prisoners’ HIV/AIDS Support Action Network (PASAN).
Scott, S. (2012). “One is not born, but becomes a woman.” a fourteenth amendment argument in support of housing male-to-female transgender in mates in female facilities. University of Pennsylvania Journal of Constitutional Law, 15(4), 1259–1297.
Sexton, L., Jenness, V., & Sumner, J. M. (2010). Where the margins meet: A demographic assessment of transgender inmates in men’s prisons. Justice Quarterly, 27(6), 835–866.
Shah, B. A. (2010). Lost in the gender maze: Placement of transgender inmates in the prison system. Journal of Race, Gender and Ethnicity, 5(1), 39–56.
Shay, G. (2013). PREA’s elusive promise: Can DOJ regulations protect LGBT incarcerated people? Loyola Journal of Public Interest Law, 15, 343–356.
Sisco, M. M., & Becker, J. V. (2007). Beyond predicting the risk of sexual victimization in prison—considering inmate options and reporting avenues for addressing an inherent problem. Criminology & Public Policy, 6(3), 573–584.
State of Delaware Department of Correction. (2016). Transgender offenders. Retrieved from http://www.doc.delaware.gov/downloads/policies/policy_8-60-A.pdf.
State of Indiana Department of Corrections. (2014). Sexual abuse prevention. Retrieved from http://www.in.gov/idoc/files/02-01-115_Sexual_Abuse_Prevention__12-1-2014.pdf.
State of Vermont Department of Corrections. (2015). Gender identification, care, and custody. Retrieved from http://doc.vermont.gov/about/policies/rpd/correctional-services-301-550/401-500-programs-security-and-supervision/432-01-gender-identification-care-and-custody.
Struckman-Johnson, D., Struckman-Johnson, C., Kruse, J. D., Gross, P. M., & Sumners, B. J. (2013). A pre-PREA survey of inmate and correctional staff opinions on how to prevent prison sexual assault. The Prison Journal, 93(4), 429–452.
Sumner, J., & Jenness, V. (2014). Gender integration in sex-segregated U.S. prisons: The paradox of transgender correctional policy. In D. Peterson & V. R. Panfil (Eds.), Handbook of LGBT communities, crime, and justice (pp. 229–259). New York: Springer.
Sumner, J., & Sexton, L. (2016). Same difference: The “dilemma of difference” and the incarceration of transgender prisoners. Law & Social Inquiry, 41(3), 616–642.
Tarzwell, S. (2006). The gender lines are marked with razor wire: Addressing state prison policies and practices for the management of transgender prisoners. Columbia Human Rights Law Review, 38(3), 166–219.
United States Department of Justice. (2015). FY 2015 list of certification and assurance submissions. [Online Document]. Retrieved from https://www.bja.gov/Programs/15PREA-AssurancesCertifications.pdf.
United States Department of Justice. (2018). Transgender offender manual. [Online Document]. Retrieved from https://www.documentcloud.org/documents/4459297-BOP-Change-Order-Transgender-Offender-Manual-5.html.
Virginia Department of Corrections. (2017). Transfers, institution reassignments. Retrieved from https://vadoc.virginia.gov/about/procedures/documents/800/830-5.pdf.
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Appendix 1
Appendix 1
Language of 13 relevant transgender provisions in PREA:
§ 115.5 General definitions
Gender nonconforming means a person whose appearance or manner does not conform to traditional societal gender expectation.
Transgender means a person whose gender identity (i.e., internal sense of feeling male or female) is different from the person’s assigned sex at birth.
§ 115.15 Limits to cross-gender viewing and searches
(e) The facility shall not search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate’s genital status. If the inmate’s genital status is unknown, it may be determined during conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
§ 115.15 Limits to cross-gender viewing and searches
(f) The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex inmates, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.
§ 115.31 Employee training
(a) The agency shall train all employees who may have contact with inmates on:
(9) How to communicate effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates; and
§ 115.41 Screening for risk of victimization and abusiveness
(d) The intake screening shall consider, at a minimum, the following criteria to assess inmates for risk of sexual victimization:
(7) Whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;
§ 115.42 Use of screening information
(c) In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.
(d) Placement and programming assignments for each transgender or intersex inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate.
(e) A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.
(f) Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates.
(g) The agency shall not place lesbian, gay, bisexual, transgender, or intersex inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.
§ 115.43 Protective custody
(a) Inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers. If a facility cannot conduct such an assessment immediately, the facility may hold the inmate in involuntary segregated housing for less than 24 h while completing the assessment.
§ 115.86 Sexual abuse incident reviews
(d) The review team shall:
(2) Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility.
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Malkin, M.L., DeJong, C. Protections for Transgender Inmates Under PREA: a Comparison of State Correctional Policies in the United States. Sex Res Soc Policy 16, 393–407 (2019). https://doi.org/10.1007/s13178-018-0354-9
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DOI: https://doi.org/10.1007/s13178-018-0354-9