8.5: Homosexual and Transgender Inmates

What unique challenges do lesbian, bisexual, gay, and transgender, (LBGT) inmates pose for jail operations? What do jail and prison leaders and staff need to know in order to appropriately manage these people with safety and respect?

Accurate language and terminology, physical and gender identity factors, and an understanding of medical facts provide a basis for sound practice. Jails need to be prepared on many dimensions, such as medical care, data systems, security, housing options, and clothing choices.

In 2007 the Center for Innovative Public Policy began to delineate the scope of the correctional facilities responsibility and options for appropriate response. In Discussion focused on identifying issues associated with managing this group of offenders in the nation’s jails and prisons, with an emphasis on personal safety. Beyond our profession, awareness has continued to emerge within the LGBT community about how correctional facilities manage, supervise, and house people from these populations. A number of national and regional organizations represent the interests of these individuals in social, legal, and political contexts. Cases being heard in courts all over the country are addressing aspects such as the provision of hormonal medications to transgender offenders, the continuation of transgender-specific medical procedures, and the development of gender awareness in areas such as housing and searches.

The government’s obligation upon incarcerating a citizen is to provide for a reasonable protection of that person, as derived from the 8th and 14th Amendments to the U.S. Constitution. Correctional facilities have a duty to take reasonable measures to guarantee the safety of inmates from assault, suicide, fires and other facility dangers, and preventable illness. Correctional facility managers are charged with preventing assault and excessive use of force as well as suicide and self-harm. They must also respond to serious medical and mental health needs, as well as avoiding unconstitutional conditions of confinement.

Correctional facilities have adopted the position that any sexual behavior in the facility is a rule violation. Sex between any persons in a correctional setting is forbidden, period. Whether that behavior is homosexual, heterosexual, or bisexual is of no consequence. Our focus is on the potential for victimization, regardless of sexual orientation. Most correctional facilities have clearly defined policies on the housing, supervision, and management of heterosexual, homosexual, and lesbian offenders, but what about transgender offenders?

Housing heterosexual inmates is straightforward, all other classification factors being equal. For homosexual and lesbian inmates, many correctional facilities do not have a blanket policy of segregation. A decision to segregate homosexual or lesbian inmates is usually based upon an articulated risk, derived from current or previous institutional behavior where the need for segregation has been identified, or a request for protective custody. Protective custody may be offered with a waiver option, which the majority of our homosexual and lesbian offenders prefer to do. Inmates who can function in the general population are permitted to remain there, unless a situation arises requiring a change in status (victimizing or being victimized, consensual sexual activity, behavioral problems, etc.). Similarly, with bisexual inmates, protective custody housing typically is offered, with the inmate having the opportunity to waive out to the general population.

Transgender people typically are placed directly into protective custody with little opportunity to waive out. Some transgender persons are in the process of changing their physiognomy via sexual re-assignment when they reach our jails. The process involves counseling, lifestyle changes, hormone replacement therapy, and ultimately surgical procedures to either implant or remove breasts and to reconstruct the genitalia.

During the process of sexual re-assignment, many live as a member of the sex they plan to be. This raises questions for correctional facility managers in several spheres of our operations.

Medical care

• What different medical and mental health services must we provide to transgender offenders?
• Is there a need for a greater level of service and support for the sexual reassignment process than the jail now provides?
• What is the potential psychological impact of impeding the sexual reassignment process while the person is in jail?
• Does this impact rise to the level of a “serious medical need”?
• Who is qualified to make the determination of “serious medical need”—a general practitioner, or a specialist in sexual reassignment surgery?

There is some case law that recognizes that a person undergoing sex reassignment process has a “serious medical need” for continuation of hormone treatments. For example, see Wolfe v. Horn, (2001), which states that “…transsexualism [transgenderism] has been characterized as a “serious medical need…” and Kosilek v. Maloney, 2002). But little has been said thus far concerning the continuation of the surgical procedures. Advocates of the LGBT community would argue for continuation based upon the negative psychological and physical impact of stopping the process. For those jails holding inmates for periods of a year or less, this may be considered to have minimal impact. But some jails can house inmates for 5 years or more. What, then, are their responsibilities?

Security Questions

• Should Facilities conduct searches differently with transgender inmates based on their gender identity?
• Should Facilities match the sex of the officer conducting the search to the gender identity of the offender?
• Is it intrusive if a search of a transgender offender is conducted by a member of the opposite sex?
• Is there a perception of being violated similar to that which could be experienced by a person with female anatomy and female gender identity if searched by a male officer?
• Is there an issue of intrusiveness when a male with a female gender identity is searched by only a male officer?
• If an inmate with a female gender identity is more comfortable being pat searched by a female officer, do we comply?
• On a strip search, should there be a policy that searches of transgender inmates are conducted by a “mixed” team of one male and one female officer?
• How should we approach searches of intersex inmates?

We all acknowledge the legal requirement that strip searches are conducted by a member of the same sex (except in exigent circumstances), and we accept the legal implications of violating this caveat.

Housing Questions

• Should Facilities house inmates differently based on transgender status and gender identity?
• Should Facilities disregard physiognomy in making housing decisions?
• Should Facilities place a trans-woman in a female housing unit even though she still possesses male genitalia?
• And what about housing a person with a female physiognomy but a male gender identity with males?

Clothing Questions

• If facilities provide women with bras, do we provide trans-women with bras as well?
• Female inmates often have access to the same clothing as males, but in a jail where women wear different clothing than men, what accommodations will be made for transgender persons or those with a different gender identity?
• What about curlers and other accouterments associated with female behavior and dress—should facilities allow trans-women with male “plumbing” to have them also?

Society is changing, and correctional facilities will have to alter the way we do business to reflect these changes. Consider how the civil rights movement brought about significant changes in corrections practice. LGBT groups are pushing an agenda that could have a similar impact. Correctional facilities will be better prepared to navigate these changes if they proactively address them rather than waiting until external forces bring the issue to the forefront.