Protected and Served?

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Know the laws in your state that protect LBGT people and people living with HIV.

Jails and Prisons

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1. Introduction

a. LGBT People and People With HIV Are Particularly Vulnerable to Mistreatment When Incarcerated

2. What the Study Found

a. Assault and Harassment

b. Improper Placement

3. Key Recommendations

4. Further Discussion

a. Lambda Legal Fighting Discrimination in Jails and Prisons

b. Isolating LGBT Prisoners and Prisoners With HIV

c. Denial of Health Care

Introduction

As part of the Protected and Served? survey, Lambda Legal asked respondents to share their personal stories of mistreatment by police, in courts, in prisons and by school security toward LGBT and HIV-positive people. See other stories or contribute your own here.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of LGBT people and people living with HIV through impact litigation, education and public policy work.

In 2012, Lambda Legal conducted a national study, Protected and Served?, exploring the issue of government misconduct by the police, courts, jails/prisons and school security against lesbian, gay, bisexual and transgender (LGBT) people as well as people living with HIV in the United States. A total of 2,376 people completed the individual survey. Respondents were also given the opportunity to share their own accounts of their experiences with government misconduct and some of those stories are also incorporated into this report. (Note that in our findings, one of the categories we use, based on self-definitions, is “transgender or gender-nonconforming [TGNC]”).

Among the areas of government misconduct which Lambda Legal’s Protected and Served? survey sought to explore is the discrimination and misconduct experienced by LGBT or HIV-positive people incarcerated in jails and prisons.

Among the respondents in the Protected and Served? survey, 5% (or 120) reported that they had been incarcerated in the past five years. Lambda Legal’s survey did not make a distinction among different types of institutions nor the reasons for imprisonment, so these results almost certainly include responses from individuals who were held before trial as well as those imprisoned after being convicted of a crime.

While 5% of our respondents reported having been imprisoned in the previous five years, the following subgroups of survey respondents were significantly more likely to report having been incarcerated:

  • respondents with disabilities (9%) were nearly twice as likely to have been in jail or prison than respondents overall.
  • transgender and gender-nonconforming (TGNC) respondents (10%) and Latina/o (10%) respondents were also nearly twice more likely to have been in jail or prison than respondents overall.
  • African Americans (12%), Native Americans (13%), respondents living with HIV (11%) and low-income respondents (11%) were more than twice as likely to have been incarcerated than respondents overall.
  • TGNC respondents of color (20%) were four times more likely to have been incarcerated than survey respondents overall.

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LGBT People and People With HIV Are Particularly Vulnerable to Mistreatment When Incarcerated

Prisons too often fail to meet general standards for fair and humane treatment, especially of prisoners who are LGBT and people living with HIV. According to the American Bar Association’s Standards on Treatment of Prisoners, correctional facilities “should protect prisoners from harm from other prisoners and staff,” “correctional authorities should respect the human rights and dignity of prisoners,” and “[n]o prisoner should be subjected to cruel, inhuman, or degrading treatment or conditions.” The standards include specific nondiscrimination provisions as to sexual orientation, gender identity and HIV-positive status.

But in many cases these standards are simply not upheld. LGBT people, particularly youths, who are detained and incarcerated are at high risk for physical abuse, psychological abuse, being denied medical care and other forms of discrimination from other prisoners as well as from guards and prison staff.

Transgender and gender-nonconforming people have faced particularly severe mistreatment by jails and prisons. As documented in joint testimony to Congress by several LGBT organizations: “Nearly all transgender inmates are placed in sex-segregated facilities based on their sex assigned at birth and not on their gender identity. Transgender women are frequently placed in men’s facilities, and transgender men are frequently placed in women’s facilities. When prison officials make these incongruous placements, inmates are singled-out for scrutiny, harassment, and abuse by other inmates and prison staff.” A 2011 study by the National Gay and Lesbian Task Force concluded, “In jail and prison, abuse and violence continues in situations where transgender and gender-nonconforming inmates often have no protection or escape. Correctional staff are frequently cited as participating in harassment, violence, and sexual assault — a serious abuse of authority.” Transgender prisoners may also be subjected to abusive physical searches to examine their genitalia and may be left unclothed to be demeaned and put on display for guards and other staff.

To address the crisis of sexual abuse in prison, Congress unanimously passed the Prison Rape Elimination Act (PREA) in 2003. In 2013, standards written by the U.S. Department of Justice to implement PREA finally took effect. These standards apply to federal, state and local prisons and jails; states risk forfeiting federal funds for noncompliance. However, several LGBT organizations have noted that the standards fall short of the measures needed to protect the safety of rape survivors.

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What the Study Found

Assault and Harassment

Survey respondents reported harassment and abuse by jail or prison staff. Of all respondents who spent time in jail or prison in the five years before the survey:

  • 7% reported sexual assault;
  • 12% reported physical assault (beat up, hit, attacked with a weapon);
  • 27% reported sexual harassment;
  • 57% reported verbal assault or harassment (shouted at, taunted, called names) by prison or jail staff.

Of the survey respondents who had spent time in jail or prison in the five years prior to the survey, respondents who were TGNC, had physical or mental disabilities, or were living with HIV were much more likely than respondents overall to report harassment and/or assault by jail or prison staff. Among TGNC respondents, people of color reported harassment and assault more often than TGNC respondents overall.

Experienced physical assault:

  • overall respondents: 12%
  • respondents with HIV: 18%
  • respondents with physical or mental disabilities (may include HIV): 21%
  • TGNC respondents: 22%
  • TGNC respondents of color: 28%
  • TGNC feminine respondents: 33%

Experienced sexual harassment:

  • overall respondents: 27%
  • TGNC respondents: 34%
  • TGNC respondents of color: 37%
  • low-income respondents: 38%
  • respondents with disabilities: 38%
  • respondents with physical or mental disabilities (may include HIV): 39%
  • transgender respondents: 44%

Experienced verbal assault:

  • overall respondents: 57%
  • respondents of color: 65%
  • TGNC respondents: 66%
  • respondents with physical or mental disabilities (may include HIV): 67%
  • respondents with HIV: 71%

Nearly one-third (30%) of survey respondents who experienced harassment or assault by jail or prison staff reported their negative experiences to other jail or prison staff or to a prison monitoring board. Only 2% of the respondents who reported misconduct felt that the staff or monitoring board fully addressed their complaint.

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Improper Placement

Transgender prisoners face unique dangers, in no small part because most jails and prisons incarcerate people according to the sex assigned at birth as opposed to their gender identity. Transgender prisoners may also be subjected to abusive physical searches to examine their genitalia and may be left unclothed to be demeaned and put on display for guards and other staff.

  • one out of three (33%) Protected and Served? respondents who were in jail or prison in the last five years identified as transgender, genderqueer, gender-nonconforming, two-spirit, or “other” gender identity (abbreviated TGNC).
  • the majority (60%) of TGNC respondents who had been in jail or prison reported being placed in a single-gender section of that jail or prison that did not match their gender identity.

TGNC respondents with feminine identities reported being wrongly placed far more often than TGNC respondents with masculine identities:

  • 70% of TGNC-feminine respondents reported being wrongly placed.
  • 47% of TGNC-masculine respondents reported being wrongly placed.

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Key Recommendations

Correctional departments and prisons specifically should:

  • respect the rights of TGNC people to identify their gender identity and be placed in facilities according to their self-identification. Jails and prisons should adopt policies in accordance with the Prison Rape Elimination Act (PREA) (and similar to those of the United Kingdom) in which the preference is to place individuals according to their gender identity, with exceptions made on a case-by-case basis at the preference of the individuals being held. The PREA standards state:

    “Decisions about where a transgender person, or a person with an intersex condition, is housed must be made on a case-by-case basis; they cannot be made solely on the basis of a person’s anatomy or gender assigned at birth. This means that, for example, every transgender woman must be assessed individually to determine whether she would be best housed with other women instead of in a men’s facility. An individual’s views regarding their personal safety must be seriously considered.

    “These decisions must be reassessed at least twice per year to consider changed circumstances such as incidents of abuse or changes in an individual’s appearance or medical treatment.

    “All transgender people and people with intersex conditions must be given the opportunity to shower separately from other inmates if they wish, regardless of where they are housed.”

  • prohibit the use of solitary confinement, which is harmful and meant as a severe punishment, as an option for routine placement of people who are LGBT or people with HIV.

    “Facilities too often respond to the problem of abuse by placing survivors and those most at risk in isolation. When prolonged, this isolation can amount to torture. The Standards restrict such uses of “protective custody” by requiring that all available alternatives be assessed before placing an inmate involuntarily in segregated housing. Alternatives might include relocating a perpetrator of abuse, providing heightened supervision, changing housing placement or cellmates, placement in a single-occupancy cell within the general population, or transfer from a men’s to a women’s facility or vice versa.

    “In cases where inmates must be placed in segregation or isolation, access to programs, education, and other opportunities must continue to the greatest extent possible. Moreover, segregation—when it must be used—should not last for longer than 30 days. Agencies must document the reasons for any restrictions on programs or other opportunities and any use of segregation beyond 30 days.”

  • eliminate policies and procedures that provide for differential treatment or enhanced disciplinary measures based solely on an inmate’s HIV-positive status.  Inmates should not, for instance, be excluded from particular jobs or refused placement into certain programs based on their HIV status.  Furthermore, it is inappropriate to subject any individual to more severe disciplinary or corrective measures, such as placement in administrative segregation or reassignment to a higher level of security, simply because that person is living with HIV.  The policies and procedures that require such differential treatment are based on inaccurate, outdated information about HIV and its transmission and/or misguided conceptions regarding the scientifically-based approach to preventing HIV transmission that is supported by medical professionals and public health officials.
  • follow PREA standards regarding searches, and train staff in conducting professional and respectful searches. PREA prohibits all cross-gender strip searches and cavity searches except in emergencies, or those conducted by a medical professional. Any cross-gender searches that occur must be documented. Transgender individuals should be allowed to make a choice at admission as to whether they will be searched by male or female officers for purposes of these requirements. No search or physical exam may be conducted when the only purpose is to determine the inmate’s genital status.
  • put measures in place to ensure that transgender people and people with HIV have access to all medically necessary health care. Transgender people and people with HIV have serious medical needs that must not be denied during their incarceration. For transgender people, possible medically necessary treatments include hormone therapy and transition-related care. Jails and prisons should adopt affirmative policies and procedures to ensure that transgender prisoners have access to evaluation by a doctor and any medically necessary treatments related to gender transition, including hormone treatment and surgeries. Jails and prisons should ensure that prisoners with HIV have uninterrupted access to the medication and the range of care they need.
  • implement transparent complaint review processes, so victims of misconduct have a form of recourse.
  • require correctional staff to undergo cultural competency trainings about sexual orientation, gender identity and expression and HIV so they will treat all people who are LGBT or who have HIV in a manner that respects their rights and needs in a nondiscriminatory manner. Training should include a particular focus cultural competency concerning gender identity and expression to address unfounded and incorrect assumptions about the needs of TGNC people and people with HIV.

All government agencies included in the Protected and Served? survey, including police departments, courts, prisons and schools, should adopt comprehensive non-discrimination policies that:

  • prohibit bias and discrimination based on sexual orientation, gender identity and expression and HIV status;
  • ensure that culturally competent services and treatment are provided to LGBT and HIV-positive detainees. Police, court, jail/prison and school staff (including but not limited to police officers, police clerks, attorneys, judges, guards, schools security guards, school-based police and school safety officers) should undergo significant cultural competency trainings about sexual orientation, gender identity and expression, and HIV status so they will be able to treat all members of the LGBT community in a respectful, nondiscriminatory manner. These trainings should have a particular focus on gender identity and expression cultural competency, to emphasize the importance of improving the treatment of TGNC people. Additionally, these trainings should address HIV confidentiality and transmission, to improve the treatment of HIV-positive people;
  • provide a transparent and accessible oversight process for reporting and redressing discrimination complaints, combined with clear and enforced disciplinary procedures;
  • include employment policies that can help improve the hiring and retention of LGBT employees as well as contribute to a more LGBT-friendly environment.

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Further Discussion

Lambda Legal Fighting Discrimination in Jails and Prisons

Lambda Legal has been at the forefront of work to protect the rights of LGBT and HIV-positive people in prisons and jails. Recent cases include:

  • a 2011 win in the U.S. Court of Appeals for the Seventh Circuit, affirming a judgment for Lambda Legal’s clients in Fields v. Smith, a federal lawsuit on behalf of transgender women incarcerated in a men’s prison in Wisconsin. The suit challenged a law (with the hostile title “The Inmate Sex Change Prevention Act”) that barred medically necessary transition-related health care for transgender prisoners in state custody, in violation of the federal Constitution’s guarantee against cruel and unusual punishment.
  • In Melody Rose v. Steven M. Cahee, M.D., Fond du Lac Regional Clinic, S.C., and Agnesian Healthcare, Inc., a 2009 lawsuit, Lambda Legal sued the off-site healthcare providers for a Wisconsin correctional institution on behalf of inmate Melody Rose, who needed to have her gallbladder removed. When the defendant doctor to whom she was referred found out she was living with HIV, he refused to perform the procedure, stating in his notes that he was concerned about exposing the surgical team to HIV. The case was resolved to Ms. Rose’s satisfaction in 2010.
  • a 2012 friend-of-the-court brief in the U.S. Supreme Court on behalf of inmate Kim Millbrook, who was sexually assaulted twice by prison staff members at two different prisons. After the second attack, prison guards threatened to kill him if he told anyone about the assault. Lambda Legal argued that Millbrook had a valid claim to sue the U.S. government. In March 2013, the U.S. Supreme Court agreed, reversing the lower courts’ determination that the officials were immune from suit and remanding the case for further proceedings.

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Isolating LGBT Prisoners and Prisoners With HIV

Because of the high risk for violence, many prisons have segregated LGBT prisoners by putting them in LGBT sections, “solitary confinement” or “protective custody,” which the PREA standards now disallow. Such segregation does not provide real protection and creates other forms of abuse by limiting access to privileges, stigmatizing prisoners, and causing psychological damage because of long-term isolation.

Until recently, some prisons had similarly sought to isolate prisoners with HIV into separate wings, or sometimes entirely separate facilities—often claiming that such action is needed to “protect” the rest of the prison population from alleged risk of infection. The U.S. Centers for Disease Control and Prevention has opposed segregation of HIV-positive prisoners as irrational and counterproductive. In 2013, after succesful litigation by the ACLU, South Carolina became the last of a series of states, mainly in the South, that abolished their policies of segregating HIV-positive prisoners from others.

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Denial of Health Care

While Lambda Legal’s Protected and Served? survey did not ask about the denial of health care, transgender people and people with HIV are particularly vulnerable when it comes to accessing appropriate health care while in prison. A  2011 national survey by the National Gay and Lesbian Task Force of transgender people found that 12% of people who had been in jails or prisons reported denial of routine health care and 17% (and 30% of Black respondents) reported denial of hormones.

Prison authorities’ failure to understand the medical necessity of transition-related health care such as hormone therapy and surgeries has led to unnecessary suffering. As the National Center for Transgender Equality and the National Gay and Lesbian Task Force have noted, “denial of hormone treatment to transgender inmates … has serious health consequences. Interruptions in hormone therapy can be physically painful and damaging to a person’s physical and mental health, and the initiation of hormone therapy for those who need it is highly important.”

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