9.1: LGBTQ Populations

Throughout history, prisons have reflected the society they are intended to protect-sometimes the most troubling aspects, sometimes the most difficult and intractable aspects, and often the tensions and conflicts that exist within a society. The present California prison crisis is no different.' The crisis is a product of policy decisions made by the state legislature and the people - including determinate sentencing, the abolishment of discretionary parole, and the three-strikes law - and the popular law-and-order rhetoric of "tough on crime" and the "war on drugs.", The prison crisis is also a reflection of society's attitudes towards prisoners as the focus of programs has shifted away from rehabilitation to deterrence and punishment, and as many in prison go without necessary mental health or medical treatment. Special populations fare no differently in the California prison system.

Their treatment in the criminal justice system generally reflects not only society's view of prisoners, but also mirrors government policies concerning these groups and the discrimination or prejudices that these groups face. This mirroring happens through deliberate actions, as exemplified by the cooperation between county jails and Immigration Customs Enforcement ("ICE"), or through willful ignorance, as illustrated by the prevalent policy of anatomically classifying transgender prisoners for housing purposes with the result being high instances of sexual assault and rape among this population. The criminal justice system is not only a reflection of our society; the system and its policies shape other institutions and the attitudes of the society.

Given time constraints, the conference limited its panel on special populations to three groups: transgender, immigrant, and women prisoners. Thus, this piece is limited accordingly. In discussing these populations, certain commonalities arose. Receipt of appropriate medical care was discussed, including concerns regarding inadequate medical care because of language difficulties and reluctance to provide hormone treatment to transgender individuals. In addition, housing assignments and facilities placement was a shared concern. Given the increased collaboration between the Department of Homeland Security and local and state governments, immigrants face the possibility of out-of-state placement or deportation. Women and transgender individuals are particularly vulnerable to sexual violence in correctional institutions, thus, housing assignment is key in preventing these occurrences. Although this issue has been addressed to a large extent for the non-transgender female population, the transgender population continues to face high risks of violence, and the state is now considering legislation that would ostensibly provide some protection. Of course, there are specific differences among these special populations that arose as well, such as the intersection between the federal and state government policies concerning the immigrant population in prison. In addition, in examining these three populations, it is important to note that there are some prisoners who belong to more than one of these communities and, thus, may face further dangers and difficulties in prison.

Figure 9.1 A rally in Washington, DC in support of the equal health and livelihood of trans people, that included basic information about trans health issues and stories of denied / inappropriate care, as well as hope for the future. Taken March 30, 2013. Image is under a CC.By 2.0 license.

For many decades, the treatment of transgender individuals in prison was largely ignored in California. However, in the past decade, there has been a growing awareness and focus on this issue as illustrated by research studies highlighting the high incidence of sexual assault and rape against transgender prisoners, a series of legal cases against the California Department of Corrections and Rehabilitation ("CDCR"), and recently introduced legislation regarding housing assignments intended to protect transgender prisoners. Although there has been no official count of the number of transgender prisoners within the California correctional system, Alexander Li-Hua Lee, the founder and former Legal Director of the Transgender, Gender Variant, and Intersex Justice Project and a panelist at the conference, has estimated that there are probably two hundred transgender prisoners and at least another thousand that are gender variant. The incarceration rate among transgender individuals is disproportionately high. A study by the San Francisco Department of Health found that close to two-thirds of male-to female transgender individuals in San Francisco had previously been incarcerated.

The high incarceration rate has been attributed to exclusion of this population from the legal economy, which forces many of its members to turn to illegal activities and thus greatly increases their risk of arrest.

The transgender community is particularly vulnerable to sexual assault and rape within prison. The number of individuals who have been victims of sexual violence in prison is staggering. A recent CDCR study showed that sixty-seven percent of lesbian, gay, bisexual, and transgender ("LGBT") prisoners report having experienced sexual assault - a rate that is fifteen times higher than the rate for overall population.

A CDCR-UC Irvine study revealed that fifty-nine percent of transgender women were sexually assaulted while in California correctional facilities, translating to the disturbing fact that transgender women are thirteen times more likely to be sexually assaulted while in prison. While two or three percent of general population in correctional facilities reported rape, forty-one or fifty percent of transgender individuals reported rape. In contrast to non-transgender prisoners, who reported general awareness and responsiveness from prison officials when sexual assault incidents occurred, transgender prisoners reported that officials were generally unaware of the incidents, and no medical attention was provided most of the time.

The vulnerability of the transgender population to sexual assault and rape in prison is caused in large part by the prison system's classification of transgender individuals and the repercussions of that classification on their housing placements. The prison system relies heavily on a dichotomous, sex-based means of classification. Prisoners are classified by their biological attributes rather than their gender identification. As described by William ("Joe") Sullivan, Associate Secretary of the CDCR in December 2008, "the classification process is gender-neutral .... We really don't distinguish between transgender and non-transgender inmates.” Thus, preoperative, male-to-female transgender prisoners are often placed in men's facilities. Although CDCR recently amended its Department Operations Manual in April of 2009, to require consideration of whether the prisoner has been a victim of sexual assault in initial and subsequent assignments to double-cell housing, this consideration does not affect the classification of prisoners as male or female for purposes of facilities assignment.

Recent legislation may help address this issue. Assembly Member Tom Ammiano introduced AB 382 in the California Assembly in February of 2009. AB 382, entitled the LGBT Prisoner Safety Reform Act, would amend the Sexual Abuse in Detention Elimination Act of 2005 by adding self-reported safety concerns related to sexual orientation and gender identity" to a list of factors to be considered for purposes of classification and housing assignments of prisoners.

Note

Think about it . . .Transgender Prisoners

In 2015 California became the first state in the nation to agree to pay for transgender prison inmates to receive sexual reassignment surgery. Prison officials released specific guidelines in the wake of several lawsuits. Follow the link above to understand why some people feel that this is an important issue and why others believe it is unnecessary.