Advancing Transgender Justice

Illuminating Trans Lives Behind and Beyond Bars

February 20, 2024

Special Report

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A PARTNERSHIP BETWEEN
THE VERA INSTITUTE OF JUSTICE AND BLACK AND PINK NATIONAL

Read the full report here

The following is an excerpt of the Advancing Transgender Justice report.

Executive Summary

From 2019 to 2022, the Vera Institute of Justice (Vera), along with Black and Pink National, developed and conducted a large-scale survey of currently incarcerated transgender people regarding their experiences in state prisons. In 2015, Black and Pink National published a landmark survey of more than a thousand LGBTQ+ (lesbian, gay, bisexual, transgender, or queer/questioning) incarcerated people, Coming Out of Concrete Closets. The present survey provides updated information on similar issues as Black and Pink’s 2015 survey but focuses solely on transgender people. Vera and Black and Pink National are grateful to the incarcerated people who took the time to thoughtfully respond to the survey, often sharing sensitive and traumatic experiences. The survey used regular mail to reach participants, who were already connected with Black and Pink National, and this allowed people to respond in 2021–2022 despite ongoing COVID-related constraints on in-person access to prisons.

This report highlights the key findings from the survey responses and open-ended comments shared by the 280 people who participated. 1  Vera and Black and Pink National codesigned all stages of this project, with input from researchers and advocates working on this topic. Vera independently managed the data collection, analysis, and production of findings included in this report, with guidance and input from Black and Pink National and an external expert research consultant. 2

The goals of this report are to

  • share the experiences and insights of transgender people living behind bars in state prisons in their own words,
  • provide policymakers and people who work with incarcerated people with findings that update and expand their understanding of how transgender people in state prisons experience conditions of confinement,
  • improve correctional policy and practice as it relates to transgender people who are incarcerated in the United States, and
  • contribute to a larger national discussion about incarceration and decarceration in a way that advances transgender justice.


Key takeaways

Transgender people are especially at risk for contact with the criminal legal system and, once in detention, at risk of harassment and violence inside prison. According to a 2022 survey of LGBTQ+ people in the United States, 31 percent had been in some form of incarceration at some point in the last five years. 3

Transgender people in prison are not monolithic in terms of their experiences or preferences. Policies designed to benefit trans people in prison need to account for this variability to have a meaningful positive effect on the lives of transgender people in custody.

Transgender people who are currently incarcerated have clear suggestions for changes to the content and implementation of policies, and decision-makers should meaningfully include these views. These findings represent common themes across survey participants’ responses.

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On housing, transgender people in prison called for clearly articulated, flexible policies that would allow them to access housing options that improve their safety.

  • Nearly two-thirds of respondents (65 percent) currently incarcerated in men’s facilities stated they would like to transfer to women’s facilities—but this is far from a universal preference, as about one-third (35 percent) indicated they would prefer to remain in men’s prisons. 4
  • About a fifth (21 percent) of respondents had lived in a unit specifically for LGBTQ+ people at some point. Nearly four out of five respondents (78 percent) reported they would prefer to live in a unit designated for transgender people within men’s and women’s prisons—but not everyone wishes to live in such a setting.
  • All respondents expressed preferences on their housing situations at some level—whether regarding what kind of facility (95 percent responded), what kind of unit they live in (97 percent responded), and whom they share a cell/dorm with (98 percent responded). Most people commented that they wanted to have input on and regular reassessments of their housing situation.
  • Transgender people in prison reported frequent and lengthy stays in solitary confinement. At the time of the survey, 22 percent of respondents were housed in restrictive housing units and 89 percent had experienced solitary confinement at some point during their incarceration.
  • Many respondents indicated that protective custody was their least-bad option for feeling safe from threats by other incarcerated people, but that this isolation was harmful in its own right. 5

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On health, transgender people in prison reported having access to general medical and mental health care, although the quality of care was poor. Comparatively, access to gender-affirming health care to support gender transition, such as hormone therapy or surgery, was less consistent and the quality was even worse.

  • Most respondents’ current mental and physical health was significantly worse compared to pre-incarceration. Close to three out of five respondents (59 percent) reported that their physical health during incarceration had worsened compared to before, and half (50 percent) indicated that their mental health had deteriorated during incarceration.
  • About three-fifths of respondents (63 percent) had taken medications to support gender transition while in prison. Among the 207 people (74 percent of the sample) who reported that they had requested medication to support transition while in prison, 47 percent had received it, while 53 percent were denied such medication. Some respondents were unable to access gender-affirming care, including medication or surgery, because of state policies and/or because access required a gender dysphoria diagnosis, which can be difficult to obtain.
  • Many people reported that their health care providers were discriminatory and/or unfamiliar with the issues transgender people face. Nearly half felt that health care providers did not have knowledge about transgender issues generally (48 percent) or about medical issues related to transgender people (49 percent).

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On emotional support, transgender people in prison reported that it was essential to their sense of self-respect and safety to have social networks and supportive connections among incarcerated people, with staff, and with outside organizations. One of the most common reasons respondents felt unsafe in prison was because they were isolated from other LGBTQ+ people—and having such connections is a key factor in feeling safer and more supported.

  • Exposure to and unwanted proximity to other incarcerated people—in cells, yards, and showers—was mentioned by 36 percent of respondents as a reason they felt unsafe in prison.
  • Harassment, threats, and attacks against transgender people in prison are also prevalent: 31 percent of respondents named these types of incidents, perpetrated by other incarcerated people in their current facility, as a top reason they felt unsafe in prison. More than half (53 percent) said they had experienced a nonconsensual sexual encounter—in other words, a sexual assault—at some point during their current prison sentence.
  • Supportive social relationships inside and outside prison are crucial to coping with the transphobic and violent nature of prisons. Nearly a third of respondents (30 percent) named relationships with other incarcerated people—partners, friends, and people on the housing unit—as a source of safety and protection. Almost two-thirds (65 percent) reported they had family members, friends, and outside advocates who helped and supported them.
  • Incarcerated transgender people had negative perceptions of staff’s trustworthiness, respectfulness, and willingness to help. Seventy-two percent indicated that prison staff did not try to help them succeed. Some respondents named specific staff members as key sources of support—but these were the exception, not the norm.
  • Staff actions can make transgender people’s lack of safety in prison more acute: 28 percent of respondents reported staff had been verbally discriminatory (often in sexualized ways) and a smaller portion (3 percent) indicated they had been physically harmed by staff.

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Policy recommendations in six areas

The respondents in this project offered clear suggestions for ways to change policy and practice so that prisons could be less harmful and more supportive for incarcerated transgender people. They underscored, across thematic areas of policy, the need for policies that are (1) developed with meaningful input from transgender people in prison and advocates in the community at all stages (policy design, content, and implementation); and (2) flexible enough to allow tailoring to individual situations, because not all transgender people have the same needs. These recommendations come directly from survey participants’ responses. The respondents provided specific suggestions in six areas:

  1. Respondents wanted the opportunity to have input on cell sharing and to have opportunities to be separated from people who threatened harm, without using protective custody as the only alternative. Many called for units designated specifically for transgender people and/or for the option for transgender women in men’s facilities to transfer to women’s facilities—but not everyone would choose either of these options.

  2. Many transgender people in prison rely on their friendships and romantic relationships with other incarcerated people, as well as ties with people and organizations outside prison, as a source of emotional support and material protection in prison. In prison, certain physical interactions between incarcerated people are prohibited under rules meant to prevent sexual assault. Respondents called for staff to stop using such rules to target transgender people in prejudicial ways for consensual relationships or for minor infractions that do not pose a safety risk. The other policy suggestion was to allow more ways for transgender people to stay connected to other transgender people in prison and to loved ones and advocates on the outside.

  3. Respondents suggested that what is permissible in terms of appearance and accessories in men’s facilities should be permissible in women’s facilities and vice versa: long hair, facial hair, makeup, shaving supplies, etc. Transgender people in prison also wanted more states and facilities to allow incarcerated people to change their names and pronouns and for staff to respect their choices.

  4. Respondents wanted state governments and prison authorities to increase access to hormone therapy and gender-affirming surgery for incarcerated people, in some cases by lifting prohibitions where they exist and in other cases by allowing meaningful access where prohibitions do not exist. Respondents also called for broader and clearer eligibility criteria to access gender-affirming health care and to ensure that people who undergo transition or related procedures do not lose access to in-prison work and programs as a result. Broadly, respondents called for more medical and mental health professionals with training in and respect for the specific needs of transgender people.

  5. The Prison Rape Elimination Act (PREA) is a law that aims to prevent and respond to sexual assault in prison in general (see Prison Rape Elimination Act of 2003). 6  It has generated rules, procedures, resources, and oversight mechanisms to bolster the implementation of the law’s protections. Respondents reported that many facilities did not implement its provisions, including some that especially affect transgender people—such as the requirements for private showers and for strip searches to be conducted by an officer of the same gender. Another concern was that prison staff used PREA to target transgender people for minor actions (like holding hands with other incarcerated people) and that some staff retaliated against people who used PREA’s reporting channels. Therefore, they called for better implementation, swifter review of cases, and more programs and staff that could offer meaningful support for transgender people who had experienced sexual assault.

  6. Respondents called for major changes in staff training, practices, and consequences for misconduct and discrimination to reduce the negative effects of staff prejudice, threats, and neglect. Specific suggestions included training to build general familiarity with the experiences of transgender people; opportunities to listen to transgender people in prison; and clear, transparent, and consistent penalties for staff who engaged in discrimination, retaliation, or willful nonresponse to situations of harm.

Introduction

Read the full report here.

The daily lives of people behind prison bars are largely invisible to the public. Due to the barriers of stigma and marginalization, the lives of transgender people in prison are even more hidden. Against the backdrop of a national movement to end mass incarceration and address inhumane conditions and violence within prisons, coupled with the increasing prominence of transgender rights as part of broader human rights conversations nationally, it is essential to hear from incarcerated transgender people directly about what they experience and what changes they want to see in policies and practices to support their well-being and to reduce the harms of prison incarceration. 7

From a policy perspective, this moment is an important juncture for both governments and advocates. There are some recent examples of policies and laws designed to address the needs of transgender people in prison. For example, California passed the Transgender Respect, Agency, and Dignity Act (SB 132). Also, in international human rights frameworks, there is new political attention in some places to the situation of transgender people in prison. 8  However, the development and implementation of such policies have been inconsistent at best. At the same time, many state governments are passing explicitly hostile legislation that limits the rights and health care access of transgender people generally. 9  Although people in prison rarely have access to as many options as people outside of prison, this political climate is likely to pose obstacles to the meaningful expansion of transgender people’s rights in prison.

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Ultimately, for policy change to make a meaningful difference in incarcerated people’s lives, it must be designed and implemented with the input of people who are incarcerated, and it must have both sufficient flexibility and strong oversight to address the complex situations that arise inside prisons. However, there remains a dearth of research about the conditions and experiences of transgender incarcerated people across multiple jurisdictions, especially research that includes transgender people’s own policy recommendations. 10

This report shares the findings of a survey of 280 transgender people who are in state prisons across the United States. 11  By sharing their perspectives, in their own voices, this report provides a window into transgender people’s daily lives in prison and their recommendations for how policymakers and prison authorities can change rules and culture in positive ways. The insights here also show the real harms of incarceration and underscore the urgency of reducing the use of prison in the first place.

Vera developed this project in close consultation with Black and Pink National, a nonprofit advocacy organization led by formerly incarcerated LGBTQ+ people, and Dr. Valerie Jenness, distinguished professor at the University of California, Irvine, who conducted research in California prisons that focused on transgender women who were incarcerated in men’s prisons.

This project builds on research into the experiences of incarcerated LGBTQ+ people generally, including a 2015 Black and Pink National survey and the 2023 report Protected and Served?, about the experiences of LGBTQ+ people and people living with HIV within the criminal legal system, which Black and Pink National co-authored with Lambda Legal, among others. 12  The present project focuses solely on transgender people who are in prison and covers a broader range of topics about people’s trajectories in the criminal legal system, their incarceration experiences, and their views on prison policies.

By sharing the findings from this survey with corrections personnel, service providers, and community organizations, this project aims to encourage departments of correction to center the voices of transgender people who are incarcerated in debates about policy and practice. The next step is for governments and prison authorities, in collaboration with advocacy groups, to develop concrete policy changes with clear and ongoing mechanisms for input from transgender people and their allies. Many of the respondents were familiar with and appreciative of some of the recent policy changes that purport to benefit transgender people, such as requirements to use people’s correct pronouns, provide access to hormone therapy, and allow different housing options. (See “Transgender people’s views on policy and their policy recommendations” on page 50.) Their suggestions point to some of the gaps and unintended consequences of these policies, as well as widespread problems with implementation and enforcement. They also offer important suggestions for other ways that prison authorities could better meet some of the immediate safety, health care, social, and basic dignity needs of transgender people in prison. Many of the policy recommendations in this report align with other recent initiatives to build policy changes to address the needs of incarcerated transgender people. 13  More broadly, this report serves as a call to action for all stakeholders in the criminal legal and corrections fields to be proactive, serious, and sincere in asking for and applying the views of incarcerated transgender people in all aspects of policy development, practice, and oversight.

This report opens with a review of research on incarceration trends and conditions of confinement for transgender people and a summary of policies and practices that particularly affect them. The report also highlights a few notable changes and contrasts between states in policies about housing and access to gender-affirming health care. Drawing on both quantitative and qualitative data, the report then presents the key findings of the survey, organized into three main thematic areas: housing (including solitary confinement and preferences about type of facility and unit), gender-affirming health care and social transition (which refers to changing name, pronouns, appearance, etc.), and social relationships (among incarcerated people and with staff, including both supportive aspects and experiences of harm). The last section of the report presents participants’ reflections about existing policies in prison and their concrete suggestions for how prison policies and practices could be improved. The appendices contain expanded details on terminology, research methods, and sample demographics.

Continue reading the full report

Notes

1 Vera’s research team sent the survey to people who had already identified as transgender to Black and Pink’s network (even if not to prison authorities) and the accompanying recruitment letter stated only people who identified as transgender were eligible to participate. Participants who chose to complete the survey indicated their gender identity in two ways: selecting from a multiple-choice question and describing their gender identity in their own words in an open-ended question. (See “Methods and Sample Description” on page 23 and Appendix B for an expanded methodology.) Respondents were instructed to select more than one gender identity, if applicable, and to provide additional information in their own words. Most respondents indicated either transgender woman or transgender man in the closed-ended question, but a portion selected other terms. For analysis purposes, this report groups that portion into an umbrella category of gender nonconforming/nonbinary (GNCNB), but uses this term to refer to people who are transgender but did not select the specific category of transgender woman or transgender man; it does not mean people who are nonbinary and not transgender. Therefore, when referring to all respondents, the report uses the term “transgender people.”

2 Dr. Valerie Jenness, distinguished professor, criminology, law, and society, University of California Irvine, served as an expert consultant on this project. She has expertise in research focusing on transgender people in prison.

3 Somjen Frazer, Richard Saenz, Andrew Aleman, and Laura Laderman, Protected & Served? 2022 Community Survey of LGBTQ+ People and People Living with HIV’s Experiences with the Criminal Legal System (New York: Lambda Legal and Black and Pink National, 2022), 48, https://perma.cc/6ZS4-BBAJ.

4 Among the 15 respondents currently incarcerated in women’s facilities who answered this question, two-thirds (10 people) said they would prefer to remain in a women’s facility and five said they would prefer to go to a men’s facility. However, this is a very small sample.

5 “Protective custody” refers to putting someone into solitary confinement (also called restrictive housing) for safety reasons to separate the person from threats in the general population.

6 Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301-30309, https://uscode.house.gov/view.xhtml?path=/prelim@title34/subtitle3/chapter303&edition=prelim. See also subsequent national standards: U.S. Department of Justice, “National Standards to Prevent, Detect, and Respond to Prison Rape, Final Rule,” 77 Fed. Reg. 37,106 (June 20, 2012), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PREA-Final-Rule.pdf.

7 Trans Legislation Tracker, “2023 Anti-Trans Bills Tracker,” database, accessed September 15, 2023, https://translegislation.com; Anne Branigin and N. Kirkpatrick, “Anti-Trans Laws Are on the Rise: Here’s a Look at Where—and What Kind,” Washington Post, October 14, 2022, https://www.washingtonpost.com/lifestyle/2022/10/14/anti-trans-bills.

8 See generally Valerie Jenness and Alexis Rowland, “The Structure and Operation of the Transgender Criminal Legal System Nexus in the United States: Inequalities, Administrative Violence, and Injustice at Every Turn,” Annual Review of Criminology 7 (2024), https://doi.org/10.1146/annurev-criminol-022222-040947; Nic Cabage, “I’m Not Who I Once Was: The Policies and Treatment of Transgender Individuals in U.S. Correctional Facilities,” in Handbook on Prisons and Jails, edited by Danielle Rudes, Gaylene Armstrong, Kimberly Kras, and TaLisa Carter (New York: Routledge, 2023), 285–309, https://www.taylorfrancis.com/chapters/edit/10.4324/9781003374893-25/-nic-cabage; L. Caitlin Kanewske, Angela Hattery, Danielle S. Rudes, et al., “Experiences of Transgender and Gender Nonconforming Individuals in Jail/Prison: Navigating Tensions,” in Handbook on Inequalities in Sentencing and Corrections among Marginalized Populations, edited by Eileen M. Ahlin, Ojmarrh Mitchell, and Cassandra A. Atkin-Plunk (New York: Routledge, 2023), 159–184, https://www.routledge.com/Handbook-on-Inequalities-in-Sentencing-and-Corrections-among-marginalized/Ahlin-Mitchell-Atkin-Plunk/p/book/9781032145624; Elliot Oberholtzer, “The Dismal State of Transgender Incarceration Policies,” Prison Policy Initiative, November 8, 2017, https://www.prisonpolicy.org/blog/2017/11/08/transgender/; and Frazer, Saenz, Aleman, and Laderman, Protected & Served?, 2022. For a constitutional argument about 8th Amendment rights for transgender people in prison, see Federica Coppola, “Gender Identity in the Era of Mass Incarceration: The Cruel and Unusual Segregation of Trans People in the United States,” International Journal of Constitutional Law 21, no. 2 (2023), 649–672, https://perma.cc/RH6Z-LMN6. For a review of housing policies relevant to trans people in state prisons, see American University, Washington College of Law, “Project on Addressing Prison Rape: Transgender Housing Policies” (Washington DC: American University, Washington College of Law, accessed August 30, 2023), https://www.wcl.american.edu/impact/initiatives-programs/endsilence/state-by-state-transgender-housing-policies. See generally Marie-Claire Van Hout and Des Crowley, “The ‘Double Punishment’ of Transgender Prisoners: A Human Rights-Based Commentary on Placement and Conditions of Detention,” International Journal of Prisoner Health 17, no. 4 (2021), 439–451, https://doi.org/10.1108/IJPH-10-2020-0083. For California SB 132, see The Transgender Respect, Agency, and Dignity Act, California Senate Bill 132 (2020), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB132.

9 American Civil Liberties Union (ACLU), “Mapping Attacks on LGBTQ Rights in U.S. State Legislatures,” database (New York: ACLU, accessed August 4, 2023), https://www.aclu.org/legislative-attacks-on-lgbtq-rights.

10 Valerie Jenness, “The Social Ecology of Sexual Victimization against Transgender Women Who Are Incarcerated: A Call for (More) Research on Modalities of Housing and Prison Violence,” Criminology & Public Policy20, no. 1 (2021), 3–18, 15–16, https://doi.org/10.1111/1745-9133.12540.

11 The survey was conducted between 2021 and 2022. Some people who participated may have been released from prison since then.

12 Jason Lydon, Kamaria Carrington, Hana Low, et al., Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey (Omaha, NE: Black and Pink National, 2015), https://perma.cc/59JV-59BZ; and Frazer, Saenz, Aleman, and Laderman, Protected & Served?, 2022.

13 For example, a collaborative stakeholder engagement project in 2019 generated policy recommendations to improve the protection of transgender people in prison in several areas: screening, pronouns and names, searches, commissary items that are gender-affirming, and improved knowledge. See Newton E. Kendig, Andrea Cubitt, Andora Moss, and Jae Sevelius, “Developing Correctional Policy, Practice, and Clinical Care Considerations for Incarcerated Transgender Patients Through Collaborative Stakeholder Engagement,” Journal of Correctional Health Care 25, no. 3 (2019): 277–286, https://doi.org/10.1177/1078345819857113.