WASHINGTON — Congressional Democrats are pushing for more information about the living conditions of transgender inmates in federal prisons and jails amid a spate of lawsuits about alleged civil rights violations, including a refusal to provide gender-affirming care.
Available research on transgender inmates is limited to data dating back several years and is not necessarily reflective of today’s conditions. A 2015 study by the National Center for Transgender Equality found that 37 percent of transgender inmate respondents who had been taking hormones prior to incarceration were prohibited from continuing treatment within the past year.
“People who are incarcerated also need to be treated with dignity and deserve access to medically necessary care, including gender-affirming care,” said Rep. Pramila Jayapal, D-Wash., who co-chairs the Congressional Equality Caucus’ Transgender Equality Task Force.
Jayapal was among more than 30 Democrats to sign a June 2023 letter urging the Government Accountability Office to investigate the matter, and the GAO has begun its investigation. The timeline and scope of the investigation is currently unknown, but Jayapal says Democrats are “trying to push them to do it as quickly as possible.”
The Democrats asked that the GAO at a minimum evaluate access to gender-affirming care and items, rates of sexual assault and physical violence, instances of solitary confinement and housing practices and policies, including if federal prisons and jails are following guidance from the Federal Prisons Bureau.
Shifting policies
Their request comes after upheaval in how federal prisons have treated transgender inmates.
In 2018, the Trump administration mandated that all federal inmates be housed according to their sex assigned at birth. That policy was reversed by the Biden administration in 2022.
Under current policy, transgender inmates’ designations are referred to the Transgender Executive Council, which is required to consider an inmate’s current gender expression and outlines that transgender individuals have the right to be called by their chosen name and pronouns. But the manual applies only to federal jails and prisons.
The policy mimics regulations from the 2003 prison rape elimination law requiring transgender or intersex inmates to be assigned to a facility on a case-by-case basis by considering the inmate’s health and safety, along with any potential management or security problems.
The 2003 law’s standards apply to both state and federal facilities. But transgender inmates have additional legal protections, including the constitutional right to receive adequate medical care under the Eighth Amendment and 1990 Americans with Disabilities Act, which an appeals courts ruled in 2023 recognizes gender dysphoria as a disability.
“Everyone is entitled to equal protection of the law, and to not experience cruel and unusual punishment,” Sarah Warbelow, Human Rights Campaign’s vice president of legal, said. “Those are constitutional guarantees for every American, and numerous transgender people have had to rely on those constitutional guarantees in order to access the care that they need.”
Enforcement lacking
But despite legal protections for incarcerated transgender persons, Jayapal says “the enforcement isn’t there.”
The 2003 law’s only enforcement mechanism is a 5 percent loss of certain Justice Department grant funding. According to the 2019-2020 audit year report, Alaska, American Samoa, Arkansas, Northern Mariana Islands, U.S. Virgin Islands and Utah did not provide a certification or assurance submission to be in compliance with the standards.
“I think this is a problem in the way that we have constructed our prisons, the way that we have created oversight in our prisons,” Kris Tassone, policy council for the National Center for Transgender Equality, said. Tassone noted that it speaks “to our values and society and how we feel about not only people who break the law, but people who we feel are of value or not of value in society.”
Advocates argue federal legislation could strengthen enforcement and existing protections for transgender inmate rights, but acknowledge Republican skepticism on trans issues makes legislative change unrealistic.
“There does not seem to be a path forward for a bipartisan option to address the discrimination that transgender folks are facing in our nation,” Warbelow said.
Jayapal agreed, noting that Democrats are undergoing an awareness campaign to educate constituents, including Republicans, about trans issues such as gender-affirming care.
She said in her experience, Republicans around the country have been open to learning but the “public posture of congressional Republicans is very anti-trans and they’re trying to make it a political issue and scare people into thinking that somehow trans people are out to hurt their kids.”
During the 118th Congress, House Republicans attached policy riders to several government funding measures, including a bill to fund the Commerce and Justice departments that would prohibit the use of federal funds to sue any state or local government for any transgender-related laws. The measure got locked up in a key procedural vote.
At a July 2023 House Judiciary Constitution and Limited Government Subcommittee hearing on gender-affirming care for minors, now-Speaker Mike Johnson, R-La., said, “This so-called gender-affirming care is anything but affirming and caring.
“Sex isn’t something you are assigned at birth. It is a natural prenatal development that occurs when every unborn child is in the mother’s womb. No one can surgically free themselves from this objective and obvious fact of life or free anyone else from it,” he said.
That skepticism has spurred transgender inmates to rely on the courts for added protection, rather than Congress, Tassone said.
“Really the things that they can do are go through their administrative remedies, and then go through the legal system and sue,” Tassone said. “The lawsuits that we see happening are from a truly herculean effort and amazing amount of courage and self advocacy that these individuals are bringing.”
Georgia case
One such case is underway in Georgia, where the DOJ announced in 2021 that it would conduct an investigation into the living conditions in Georgia prisons and continue its existing investigation into abuses of LGBTQ+ inmates by prisoners and staff.
The case was filed by a transgender woman, Jane Doe, housed at a men’s facility in the U.S. District Court for the Northern District of Georgia. The filing says that Doe received inconsistent access to hormone replacement therapy and was denied gender-affirming surgery despite recommendations from two psychiatrists to treat gender dysphoria. She also has been housed in solitary confinement for approximately four years.
The case alleges that the Georgia Department of Corrections has a “blanket ban” on gender-affirming surgery. Current GDC policy states that all people in custody who “have been diagnosed with Gender Dysphoria will receive a current individualized assessment and evaluation.”
According to the complaint, Deshawn Jones, the warden of Phillips State Prison, told Doe that the GDC “doesn’t do gender-affirming surgeries.”
The DOJ filed a statement of interest in the case and asserted that gender dysphoria is a serious medical condition and “the Eighth Amendment requires prison officials to provide incarcerated people with adequate medical care for serious medical conditions.”
“It is well established that gender dysphoria is a serious medical condition,” they wrote.
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