The previous rule by the Federal Bureau of Prisons allowed transgender inmates to use facilities, like housing and bathrooms, that matched their gender identity. That precedent was set by the Obama administration two days before Donald Trump took the oath of office.
But recent revisions to the bureau's Transgender Offenders Manual direct prisons to “use biological sex as the initial determination” for inmate placement and to assess facilities for transgender inmates on a “case-by-case basis.”
“Only in rare cases” will inmates be assigned to a facility based off their identified gender. Experts voiced deep concern about the shift, transgender lawyer Jennifer Levi saying that the move it puts these inmates “in serious risk of violence, of brutality, of being treated inhumanely in the Federal Bureau of Prisons.”
“It’s well documented that transgender people are at heightened risk of violence and heightened risk of sexual violence when they are incarcerated,” Levi said. “There are a number of cases I’ve worked on where transgender women have been improperly housed in men’s facilities and the result is, as you would imagine, brutal and horrific. It would be comparable to an experience any other woman would have if she were housed in a men’s facility.”
Levi currently represents a 52-year-old transgender woman who was assigned to an all-male state prison in Massachusetts. The woman, identified anonymously as Jane Doe in a state lawsuit, has received hormone therapy and lived as a woman for around 40 years — most of her life.
While in the facility, MCI-Norfolk, Levi said Doe found herself routinely groped and harassed by other inmates and prison staff.
“She is regularly subjected to sexualised comments about her body,” Levi said, “She is targeted by other inmates and other guards, she has been physically violated.”
The study, which assessed data from more than 600 state and federal facilities, found that around a third of all transgender inmates have been the victims of sexual abuse. Those inmates are also vastly more likely to be sexually abused in facilities than any other demographic noted.
The Trump administration have targeted many Obama-era guidances geared toward increasing freedoms for transgender populations, Levi said. This announcement follows a series of reversals by administration centred around the topic including the Education Department’s reversal of its position on transgender student bathroom access, the Justice Department’s decision to not apply workplace discrimination laws to transgender communities and limits on transgender troops in the US military.
“You saw guidance from education guidance, to prison guidance, to guidance in the military, to housing to healthcare, to employment and beyond to address the most basic needs of transgender people,” she said. “At the core, it was really about recognising simply that transgender people exist.”
Critics like Levi says this is just a part of a larger effort by the Trump administration to scale back protections of transgender individuals. Levi herself has worked as the attorney on a number of large cases centred around LGBT rights, working as one of two transgender lawyers in lawsuits against the Trump administration’s “transgender military ban.”
“It’s disheartening to see the federal government seeking to erase transgender people’s lives,” she said. “There has been so much progress that has been made to really recognise that transgender people exist throughout all the different institutions.”
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