Ask Lambda Legal — Stop Prison Rape

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May 13, 2015
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Jael Humphrey

Q: My friend is a transgender woman in a men’s prison. Last year she was raped, and I’m afraid it’ll happen again. Why can’t she be moved to a women’s prison?

Your friend would probably be much less likely to suffer sexual assault if she was housed with other women in a woman’s facility.  But unlike Laverne Cox’s character in Orange is the New Black, transgender incarcerated people in the U.S. are still usually housed according to the sex assigned at birth, instead of by gender identity. This practice makes transgender people more vulnerable to harassment or attack by staff or fellow incarcerated people. A California study found that transgender people were 13 times more likely to be sexually assaulted than non-transgender people in prison.

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The practice of forcing transgender women to stay in men’s facilities may be changing.  In 2002, Congress passed the Prison Rape Elimination Act (PREA), which outlines steps that prisons, jails, confinement facilities, and immigration detention facilities should take to stop sexual abuse. PREA requires prisons to make housing decisions on a case-by-case basis. An increasing number of localities—including Cook County, IL, Cumberland, ME, Denver, CO and Washington, DC—have had success with policies that classify people by gender identity rather than sex assigned at birth.

PREA has other standards to protect LGBT people from sexual abuse. For example, facilities must screen incarcerated people for vulnerability and separate them from likely abusers; proactively investigate all complaints; limit the use of solitary confinement (which can cause serious psychological damage); train staff about issues specific to transgender people; and have a written policy mandating “zero tolerance” toward sexual abuse.

While PREA carries financial penalties for states that do not comply, it unfortunately does not allow individuals to file a lawsuit in court if it is violated.  However, the 1994 Supreme Court decision Farmer v. Brennan provides grounds for transgender people to argue that the failure to protect them from sexual abuse and other violence and the failure to provide transition-related health care is cruel and unusual punishment in violation of the U.S. Constitution.

Still, survivors of sexual assault must be aware that under the Prison Litigation Reform Act (PLRA), people in custody who wish to file a lawsuit in federal court must first file an administrative grievance and “exhaust” all of the procedures available in their facility. The bulk of lawsuits filed by prisoners are dismissed because they do not know that they must first file a grievance within the time period provided by their facility and pursue it through every level of appeal.

Enforcement and education are an uphill climb. Lambda Legal is fighting to make sure that transgender people everywhere are treated with respect and that legislation like PREA is implemented and enforced in all 50 states.

For more information visit: http://www.lambdalegal.org/know-your-rights/prisoners/transgender.

If you have any questions, or feel you have been discriminated against because of your sexual orientation, contact Lambda Legal’s Help Desk at 1-866-542-8336, or see www.lambdalegal.org/help.

This blog post should not be considered legal advice.  For legal advice, please consult with a retained attorney.