In the United States, one out of every two Black transgender people has been incarcerated. And trans women who are incarcerated in men’s prisons are 13 times more likely to be sexually assaulted than cisgender men. Yet more than 50 percent report fearing for their safety if they are vocal about harassment, discrimination, or violence.
Despite all of these hurdles, one woman found the strength to speak out against abuse. At the beginning of July, CJay Smith, a 59-year-old Black trans woman incarcerated in California, filed a federal lawsuit against the California Department of Corrections and Rehabilitation (CDCR).
According to Medina Orthwein LLP, Smith is accusing staff members at San Quentin Prison of refusing to investigate reports she filed after being sexually abused. In addition, she says that correction officers retaliated against her for reporting her abuse. Smith’s 36-page-complaint acquired and reviewed by Refinery29 includes claims that the prison staff "used threatening and coercive tactics to try to get her to withdraw her allegations." The complaint also details assaults from 1998, as well as an instance of violent rape in 2013 shortly after she was placed in San Quentin, a men's prison.
Before the CDCR can even be served the lawsuit, however, Smith must first endure a complicated justice process, thanks to the Prison Litigation Reform Act (PLRA), which adds an extra step requiring a judge to approve if an incarcerated person's case is legitimate. Ultimately, provisions in the PLRA have made it even harder for people in the prison system to file federal court lawsuits, according to the Prison Policy Initiative. Because of the added barriers, there's no telling how long it will take for a judge to approve Smith's case so it can move forward, her lawyers told Refinery29.
Smith's legal complaint details that since trying to speak out about the violence she’s experienced while incarcerated, she’s suffered constant harassment from correctional officers, including an alleged fabricated claim by prison staff that she's in possession of a deadly weapon, which could extend her sentence ten years.
Her lawyers from Medina Orthwein LLP argue that cases like Smith's show exactly why many transgender survivors never report sexual assault behind bars. “The same things that are happening on the outside where women are being assaulted and not believed, those things are happening on the inside of prisons to people like CJay even more so but we just don’t hear about them,” says Kevin Love Hubbard, civil rights attorney and partner at Medina Orthwein.
According to a report from the federal Bureau of Justice Statistics (BJS), nearly 40% of transgender people in prisons across the United States reported sexual assault or abuse that occurred in 2012 by either another prisoner or staff. With nearly half of Black transgender people having been incarcerated at some point in their lives, that makes them some of the most vulnerable to abuse. If Smith wins her case, it could help to set a precedent of prisons taking responsibility for the harm experienced by incarcerated people.
“A Black trans woman like CJay speaking up and experiencing retaliation shows the response of the system that says ‘we don’t believe you.’ More and more on the outside, people are saying it’s not acceptable to blame women or not believe them, but that message hasn’t quite filtered through prison bars to be applied to get justice for incarcerated people, especially the most vulnerable ones like Black trans women, and that’s what we’re trying to change," Hubbard tells Refinery29.
According to KQED, there are more than 1,200 transgender people who are incarcerated in state prisons in California — so it’s not shocking that this is not the first case waged by transgender people against the state for failure to properly handle sexual assault and abuse behind bars. In fact, many transgender people who are incarcerated have sued the state or its officials recently. A trans woman named Candice Crowder sued Corcoran State Prison in 2017 after guards allegedly made her enter solitary confinement for reporting that her cellmate raped her.
In another ongoing case filed in 2019, Isaac Medina, an incarcerated trans person at Central California Women's Facility, issued a lawsuit against the state alleging that corrections officers regularly sexually harassed and threatened him. Although conditions in jails and prisons vary, physical and sexual violence are incredibly common, according to Trans Equality's report LGBTQ People Behind Bars and statistics from Survived and Punished.
This is especially true for trans women, says Jasmine Jones, a formerly incarcerated Black trans woman in California who now works as a legal assistant with the TGI Justice Project. “Speaking as someone who just got out of prison after many years, it’s rough for Black trans women in prison because they treat us like we’re objects," Jones tells Refinery29. "Instead of looking at us as we present ourselves, correctional officers and prison staff look at us as our former selves and use incorrect pronouns, and tear us down psychologically. A lot of times we try to correct them and they call us derogatory names or give us unnecessary patdowns. I’ve witnessed COs setting people up to get assaulted or turning away and letting it happen."
According to Jones, CJay’s case is unfortunately very common. "It happens to girls like us all the time,” she says. As a result of the ongoing trauma, Smith says she has developed post traumatic stress disorder (PTSD) and was recently transferred to California Medical Facility (CMF) to get better healthcare. However, her lawyers say her decision to speak out and her move to another prison could make it more difficult for her to earn parole. Smith is eligible to start having parole hearings in October 2023 according to CDCR. Factors lending to parole eligibility within CDCR include a stable social history, realistic plans for release and marketable skills, and behaviour that indicates an enhanced ability to function within the law upon release.
The progress of Smith's case is currently in the hands of the court, though CDCR is unable to confirm any ongoing cases. Still, Medina Orthwein is doing everything it can to make sure her story is heard and that people include incarcerated people who experience violence at the hands of the state in conversations around justice. Smith's accounts of violence now also join the larger #MeTooBehindBars campaign, which aims to shed light on the horrifying abuses that women experience in prisons.
Since confidential phone calls and visits have been shut down due to COVID-19 health risks, Smith’s lawyers say they've had difficulty getting in touch to speak with her about the case. Still, when they have spoken, CJay has said all she wishes for is freedom. “I've been down too many years. I've been raped and assaulted. This ain't nothing new,” Smith said in a visit with her attorneys in March. “I just want to walk out of prison one day. I don’t want to be rolled out of here.”
If you have experienced sexual violence of any kind, please visit Rape Crisis or call 0808 802 9999.