A Few Words on Jail in America, Part Six: LGBTI Inmates

The social structure in jail is based entirely on who has power and who does not. Any appearance of weakness, real or imagined, is sure to be targeted for exploitation; exploitation of the weak can involve things as horrible as rape or murder, or it can simply mean extortion of the weaker person’s meals. In previous installments, I’ve discussed matters like mental illness that make the experience of being in jail more difficult. I haven’t discussed another aspect of humanity that can expose inmates to tremendous danger: being anything other than cisgender and heterosexual. Lesbian, gay, bisexual, transgender, and intersex individuals face three different categories of risk that are to some extent interwoven: danger from staff, danger from fellow inmates, and the dangers of solitary confinement. Therefore, LGBTI inmates face even greater punishment than inmates who are heterosexual and/or cisgender.

Before I get further, it is important to understand what some of these terms mean. Mainstream society operates with what has been termed “the gender binary”, which dictates that individuals are either male or female. The gender binary has a number of flaws; one of its greatest flaws is that it conflates gender with biological sex. This is deeply contrary to many people’s lived experience, and has given rise to a saying I find helpful for a quick explanation: “Gender is between the ears; sex is between the legs.”

Gender identity is not the same as sexual orientation. To be cisgender means that your personal experience of your gender aligns with your birth-assigned gender. To be transgender means that this is not true. A transgender person might identify as male, female, or any number of other genders — perhaps even none at all. An intersex person is someone who is born with anatomy and/or chromosomes that do not meet standardized definitions of male or female.

How does the housing of inmates operate with regard to gender? It doesn’t. This decision, and many other policies, are informed in most states by the Prison Rape Elimination Act of 2003 (PREA). This was the first federal-level legislation dealing with the topic at all. PREA represented a fairly sophisticated attempt at prevention of sexual violence in the American penal system. It defines a variety of vulnerable populations; in addition to LGBTI individuals, for example, it devotes considerable discussion to juveniles. It addresses staff training, how to identify populations thought to be more vulnerable to sexual violence, and what precisely a facility is to do in the event that such violence is alleged. PREA-compliant facilities must also comply with rigorous documentation and reporting standards. It is important to note that before PREA, since there was no federal law at all on the topic, the matter of how to address sexual violence in the penal system was left to state authorities. Even now, states are not required to comply with PREA; they simply miss out on five percent of federal prison/jail-related grants if they choose not to comply. As of May 2014, forty-eight states and territories were either fully compliant with PREA or had formally assured the federal government that they were working toward compliance. However, seven states and one territory chose not to comply. They were:

  1. Arizona
  2. Florida
  3. Idaho
  4. Indiana
  5. Nebraska
  6. Northern Mariana Islands
  7. Texas
  8. Utah

PREA dictates that jails house inmates by what sort of genitals they have. However, there are a tremendous number of transgender individuals who haven’t had genital surgery, in which their genitals are surgically altered to align with their experienced gender. PREA states that an inmate is to be asked what genitals they have, but that failing this, a facility may consult the inmate’s medical records or have medical staff examine the inmate’s genitals. PREA makes clear that a medical exam may not be conducted for the sole purpose of ascertaining genital type, but does not forbid obtaining this information from an examination and using it for housing classification purposes. This means two things: a transgender or intersex inmate has a significant chance of being stripped by staff upon booking even in a facility that does not strip-search as a matter of standard procedure, but merely pats down inmates upon booking and has them walk through a metal detector. Regardless of intent, this highly demeaning experience means that a transgender or intersex individual will be punished more harshly by going to jail than if they were cisgender. Additionally, this means it is entirely possible for a transgender woman to be housed with male inmates, making them more likely to be victimized.

Much of a vulnerable inmate’s well-being can depend on the character of the correctional officers in their facility. Many correctional officers truly care about the inmates under their watch. The little gestures they are capable of making, such as saying to an inmate, “You look sad. Here’s an extra doughnut for breakfast,” at just the right time can be more therapeutic than an antidepressant. However, a tremendous number of correctional staff are demographically similar to the inmates. What does this mean? It means that many cultural prejudices are shared, and that there is often, but not always, a limited educational background. It is not uncommon to meet corrections officers with backgrounds in sociology or in criminal studies, but it is also common to meet corrections officers whose educations ended with high school. They may never have had the chance to meet a wider, more diverse world and may therefore have a tendency to carry into the workplace whatever prejudices they’ve learned at home, unmitigated by the crucial development that can come from leaving home.

Correctional officers may harbor many bigoted thoughts about transgender individuals. They may consider transgender women to be men who think they are girls and mock them, whether to their faces or behind their backs. Inmates may think all of these things as well, and this is part of why inmates who aren’t heterosexual or cisgender face such high risk for sexual assault in the penal system. In order to protect transgender, intersex, and homosexual inmates, jails often need to take protective measures, and in this way the problem is compounded.

How do you protect whole categories of people who can face such violence from their fellow inmates? A jail has three choices:

1: Jail authorities can ignore the problem. This is a horrible idea, and Texas is a fine example of why. Texas, as I mentioned above, is one of the states that have chosen not to comply with PREA, and its facilities are statistically the most dangerous for this population in the nation.

2: Authorities can create one or more separate housing units just for this population. A facility might label this housing unit for “vulnerable populations”, and indeed they can serve this function. It is not only LGBTI inmates who are considered vulnerable, but also the elderly. What’s wrong with this solution? The simple existence of a housing unit which is, however unofficially, truly for LGBTI inmates, means that it’s vulnerable to bigotry, to its problems being dismissed. Even as fights happen in housing units containing inmates of all descriptions, conflicts in such a Vulnerable Populations unit can run a risk of being dismissed as gays or “girly men” being dramatic — just as women’s anger is so often dismissed as irrational sensitivity in our patriarchal society.

3. Jail authorities can choose to place vulnerable inmates in solitary confinement. As I discussed in my fourth installment, solitary is sometimes used to protect individuals who are for any number of reasons unsafe in general population, and this can include LGBTI inmates. PREA does allow solitary confinement to be used for the protection of transgender inmates, but only if alternate solutions are exhausted.

None of the above choices are good. The only change that can likely alleviate the problems I’ve described here is for society to become truly accepting of LGBTI individuals, and we are far from that. Only now are two consenting adults anywhere in the United States able to marry regardless of their biological sex, but even so, they may be legally discriminated against for housing and employment in many states. The ongoing rash of murders of transgender individuals — and their suicides, which may be caused by the brutal treatment they often receive from their families and peers — often go almost unremarked in the news, outshined as are so many other important causes by the latest spectacle. A society’s penal system is an excellent indicator of how focused on justice for all that society truly is. We have much work to do.