American prisons are not equipped to handle gender fluidity yet but transgender prison housing is not the solution
There is no perfect solution to this complex problem but what we could do instead is take a 'holistic approach' instead of a 'one size fits all approach' based on stereotypical notions of gender without success, expert says
Being in any prison is not a walk in the park, but when a prisoner is transgender, the stakes against them are much higher. According to the National Centre for Transgender Equality, being LGBTQ in prison and not identifying to gender stereotypes is often synonymous to daily humiliation, physical and sexual abuse, and the fear that it will get worse if you complain. For a country that has the highest rate of putting people away behind bars, prison is a daunting space for trans people.
It also makes trans people more fearful of the justice system, making them less likely to come forward to report crimes. Furthermore, when law enforcement does not use their preferred name or gender identity, it makes them further apprehensive about the law.
According to the Department of Justice data from 2011 to 2012, trans prisoners are almost 10 times more vulnerable to be sexually assaulted than those who are not. Trans inmates face discrimination from both inmates as well as officers, especially trans women, and their time in solitary confinement or "protective custody" becomes more than others. Solitary confinement is widely criticized by human rights and prison reform groups as being inhumane, cruel and unusual punishment. Even though they are the victims, they end up being punished for it.
Is the prison system equipped to handle gender fluidity?
According to the PREA (Prison Rape Elimination Act) of 2003, it requires agencies to take other factors into consideration and not just place a trans person in a prison according to their gender assigned at birth. However, it doesn't always go that way. It puts them at an increased risk of violence and abuse while also sometimes violating the constitutional right that the Eighth Amendment provides, preventing cruel and unusual punishments.
However, is the prison system equipped to handle gender fluidity? It's not, unfortunately. "This has historically been the case in societies with a rigid notion of binary gender," said researcher Scott Schweikart, who works for the American Medical Association and has written a paper on the subject called Appropriate Placement and Treatment of Transgender Prisoners: Constitutional Concerns and Arguments for Alternative Housing and Treatment Policies.
Henry Higgins, a prisoner who served time in many of the country's prisons attested to the fact as well in a piece with Quileute. He said that the female anatomy of a transman prisoner who, if placed in a prison for men, would most definitely be a rape target. However, as seen in the case of Karen White, who had a long rap sheet of violence and was a trans woman placed in a female-only prison who ended up sexually assaulting two other inmates, one can see the problems it brings.
However, Schweikart disagrees that creating separate "transgender prison housing" is a proper solution. "Although simple on its face, such a solution only serves to further stigmatize transgender people and incorrectly assumes that all transgender people are identical, with the same needs, risks, and vulnerabilities," he said.
Each transgender prisoner needs to be accessed individually
Unfortunately, Schweikart noted that there is no perfect solution to this complex problem but what we could do instead is take a "holistic approach" instead of a "one size fits all approach" based on stereotypical notions of gender without success.
In order to be able to get to a better place for the community, American prison and jails could learn from the Gender Identity Committee of Cook County, Illinois. "Here the committee evaluates the needs and vulnerabilities of each transgender prisoner individually, and then makes a determination of where they are to be housed. This may allow for the prisoner to be housed in accordance with their affirmed gender, but not necessarily always," said Schweikart.
Just last month the county board approved an amendment that would allow transgender residents to be able to use restrooms, dressing rooms and other facilities they choose, based on their gender identities, without having to show IDs.
For those prisoners who are at high risk like in the case of transwomen prisoners, they could also be placed in their birth-assigned gender housing or even segregated housing of "vulnerable prisoners", he said. Having a Committee such as this helps make the most informed decision about a prisoner's welfare. "It is important that any placement of transgender prisoners not be a form of 'administrative segregation' that amounts to solitary confinement," he added.
Approach vulnerabilities of trans prisoners with consideration
Schweikart suggested that apart from taking an individual's preferred gender into consideration, those making the decisions should also look at their vulnerabilities. For example, a trans man being put in an all-male population would make him open to violence. He also suggested considering the nature of the current prison population, and the history of violence within that population along with the criminal history of the individual transgender prisoner, such as in the case of White.
"Essentially prisons must make individual risk assessments for each of their transgender prisoners, and then decide where they should be housed," he suggested. While sometimes it may mean placing them in prisons that match their gender assigned at birth, other times it may mean housing them aligned with their preferred gender and other times using some other housing solution (that is ideally not solitary confinement) for vulnerable inmates," he said.
The views expressed by Scott Schweikart in this article are his own and does not speak for or represent the views of the American Medical Association.