Last week, the Department of Justice (DOJ) released an important clarification to their 2012 guidelines aimed at protecting transgender prisoners. While DOJ has already stated that an inmate’s gender identity should be considered when placing them in gender-specific facilities, the new clarification explicitly states that automatic placement based on anatomy is a violation of federal law.
Congress passed the Prison Rape Elimination Act (PREA) in 2003 with the explicit goal of ending prison sexual assault and abuse. More than a decade later, DOJ issued rules implementing PREA. The regulations state that decisions about housing should be made on a case-by-case basis taking into account an inmate’s health and safety. In addition, the rules state that a transgender person’s own views shall be given serious consideration in the decision-making process. However, despite these guidelines, inmates have still been overwhelmingly placed in housing based on anatomy regardless of their gender identity.
This has led to high levels of violence against transgender individuals in confinement. According to the DOJ’s Bureau of Justice Statistics’ latest survey of transgender inmates in state and federal prisons, almost 40% were sexually victimized. The rate of sexual assault among non-LGB individuals is much lower.
DOJ’s guidance makes clear that confinement facilities that have a written policy in place, or simply a practice, of housing transgender inmates solely on anatomy violate PREA’s standards. Non-compliance could subject a state to a reduction in federal funding.
While this clarification is an important step, there is more work to do to ensure that placing transgender inmates in facilities based on their gender identity is the norm rather than the exception. HRC will continue to work with Congress and the Executive Branch to ensure the safety of transgender individuals – and all LGBT people – in confinement.