As Alex Bollinger reports in LGBTQ Nation, the Biden Administration just took a bold step to protect transgender women in jails and prisons. The DOJ has weighed in on a lawsuit filed by Ashley Diamond to assert trans women inmates have a constitutional right not to be housed with men and a presumptive right to receive hormone replacement therapy (HRT). In a moment, let’s delve into the DOJ’s sweeping position. But first, let’s talk about the thousands of trans women serving sentences in men’s prisons in the U.S.
Let me tell you a story about a fierce trans advocate who raised my awareness.
Jade’s story: from inmate to activist
I’ll call her Jade. She’s a tall, Black, mouthy transgender woman you’d love to have as a friend. Well. I loved having her as a friend when she lived in my building in Detroit.
She’s the kind of woman who radiates charisma and commands respect. She’s the kind of Black woman quick with a pithy barb when people don’t return the respect she dishes out. “Child!” she’ll say, arching an eyebrow and wagging a maternal finger.
When people talk about representing, they could easily be talking about Jade, who fights for social justice as a front-line paralegal in a busy law firm. If you’ve suffered racist or homo/transphobic discrimination in Detroit, and you want to hold people accountable, Jade might just be the first person you talk to.
Some of you may already know who I’m writing about, but even though I reached out Monday and got her permission to tell some of her story, I’m not going to name her because the details are sensitive.
You’ll see what I mean.
Jade honed her formidable legal skills in federal prison where she served most of a 6-year term. She was typical of incarcerated trans women, overwhelmingly likely to be Black or Hispanic serving sentences related to sex work or, as in Jade’s case, low-level drug offenses.
When Jade wasn’t learning to help fellow inmates write appeals briefs, she fought the federal Bureau of Prisons (BOP), which had housed her with men and refused to supply her with the hormones she had taken for over a decade.
Let me give an idea of how much problem that caused her. Jade has always identified as a woman, starting HRT in her teens, developing few masculine secondary sexual characteristics. When she entered a men’s prison, she was (and I’ve seen photos to prove it) voluptuous — big breasted, big hipped, and well … you know the rest without my typing it.
When she walks down the street today in her 40s, men’s heads turn. Back then, as a gorgeous woman in her mid twenties, she attracted even more attention.
In prison, Jade attracted violent attention
She tells me her experiences weren’t all bad, though. “Some of the men were very sweet,” she wrote to me in an email. “They hadn’t been close to a woman in years and they fell in love with me straight up. I had protectors, no strings attached.”
She needed protectors.
She lived in a open dormitory with stacked bunk beds and shower and toilet cubicles that lacked doors. She says men constantly grabbed her ass and breasts. They milled around the showers harassing her. She kept a jar in her bunk cubicle to pee in, because going to the restroom at night was dangerous. Guards disciplined her for that, calling the jar, which she emptied and washed out every morning, contraband. She spent time in the SHU (disciplinary solitary confinement) and lost time off for good behavior.
By dint of extreme diligence, she avoided violent rape, though she and her protectors had to fight off more than one would-be rapist.
“Sherry wasn’t so lucky,” Jade wrote to me about another trans woman at the same prison. “She got beat down behind the bleachers in the yard more than once. She got sent to the hospital for stitches ‘down there’ and then went to the SHU and got transferred. I never saw her again.”
Jade eventually learned Sherry was sent to different, more dangerous men’s prison.
“Adrenaline ate me up for five years,” Jade writes. “I was always scared, always ready to fight. And I had to watch my beard and chest hair come in and all the other shit that happens when they take your HRT away. When I finally got out, I cried for a week because I thought I looked like a freak.”
The U.S. federal prison system has changed a little for the better
Things have got a little better since Jade was released. In 2015, the DOJ declared that blanket refusal of hormone treatment is discriminatory. While that was a positive step, Jade says it didn’t go far enough. The DOJ ordered the federal prison system (BOP) to make case-by-case assessments of transgender inmates rather than declare they are presumptively entitled to HRT. She says those most trans inmates she hears from still don’t get HRT.
As to housing trans women with men, NBC News reports that the federal Prison Rape Elimination Act (PREA) of 2003, “hailed as a watershed effort to improve the safety of transgender people behind bars, has barely had an impact.” States that don’t comply with PREA rules stand to lose significant federal funding, but the act has not made a difference in state prisons, where almost all trans women remain locked up with men.
In the federal system, the situation is somewhat better, with housing assignments made on a case-by-case basis and some trans women housed in women’s prisons. But Jade tells me she advocates every day for trans women at risk of rape because they are locked up with men, some of them in the same men’s prison she did her time in. Those women inmates face the same terror she faced every day, often denied HRT just like she was.
“The system doesn’t work for trans inmates,” Jade writes. “They [prison authorities] will deny deny deny and deny until you fight back. If you don’t know how to fight for your rights, you won’t have any.”
Biden administration to roll back Trump ‘chamber of horrors’ federal prison policies
In 2018, the Trump/Sessions DOJ ratcheted back BOP policy to make housing trans women in men’s prisons the default, despite retaining “case-by-case” language. Amy Fettig of the ACLU’s National Prison Project said the Trump policy changes kept federal prisons “chambers of horror” for transgender people.
Transgender advocates say the Biden administration is working on a major rewrite of BOP policy that will roll back Trump policies and go even further to protect transgender inmates in federal prisons. But time and bureaucratic hoops stand in the way of immediate reform. Jade says she expects new policy by the end of the summer at the earliest, and even then a period of public comment will have to pass before new policy takes effect.
DOJ brief in Georgia case is sweeping and signals fundamental change
Whatever the DOJ is planning for federal prison policy remains speculation. Nobody I know has seen draft policy, but advocates are optimistic. President Biden has made LGBTQ rights a priority in his administration.
Whatever changes the DOJ makes to the federal system, most inmates won’t be impacted. As of 2020, the American criminal justice system held almost 2.3 million people in 1,833 state prisons, 1,772 juvenile correctional facilities, and 3,134 local jails. The BOP’s 110 federal prisons house a tiny fraction in comparison.
In the case that made the news last week, the DOJ filed a statement of interest in a lawsuit brought by Ashley Diamond against the Georgia Department of Corrections. Diamond says men in the state prison where she was housed sexually assaulted her 14 times. She says prison policy denied her HRT even though she had been taking it for more than half her life.
According to legal analysts, Georgia courts will probably attach great weight to the DOJ statement, upping Diamond’s chances of winning her state lawsuit. But what really stands out is the sweeping nature of the DOJ brief. In some ways, it’s a first, asserting a fundamental government interest in protecting the rights of LGBTQ people.
No DOJ brief has ever used such strong language.
While the brief does not take a position on the facts of the case, DOJ lawyers assert that “failure to provide transgender prisoners with a safe environment or adequate medical care constitutes cruel and unusual punishment under the Eighth Amendment.”
The future looks bright
While the courts will ultimately decide this case and others, the Biden administration has staked out a position that thrills Jade and other LGBTQ advocates. Whatever BOP policy changes are in the pipes, they’re bound to be a vast improvement over the status quo and over policy that existed before Trump.
State prisons are a bigger challenge as Biden and crew have no direct authority there, but last week Biden’s DOJ signaled they’re going to bat for trans people, and they signaled for the first time that LGBTQ equality is a fundamental government interest.
If that’s upheld by the courts, it’s groundbreaking. It’s tragic we’re still fighting for basic decency today, though. Trans women in men’s prisons report an astonishing rate of sexual assault. No matter how we get there, that can’t continue.
Women like Jade and Ashley should not have to fear and fight for basic safety and health care. Prison policies that expose trans women to assault and rape must not stand.
If you’re a transgender person in need of legal assistance or an ally looking for advocates to support, The Sylvia Rivera Law Project focuses on rights for incarcerated, formerly incarcerated, homeless, and low income trans people.
James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to email@example.com.