Transgender Prisoners: Criminalization, Healthcare, and the Carceral State

ance and other types of laws that weren’t specifically around gender and sexuality but were flexible.

Derek: Now we move to 1966 at Compton’s Cafeteria in the Tenderloin District of San Francisco. Police relations with the trans and queer community were escalating…Cafeteria staff had been calling police on transgender customers at the restaurant. The staff had felt that transgender customers were loitering and causing the cafeteria to lose business from more desirable customers. To combat this, staff began charging a service fee for trans people as an attempt to deter their business and if that didn’t work management and staff attempted to use the law to police trans and queer people’s presence in their cafeteria. In response, the transgender community began a demonstration against Compton’s Cafeteria. The police were called on the protest, as one of the officers attempted to arrest a trans woman she threw coffee on his face– a riot broke out, Windows were smashed, dishes thrown, police and trans protesters spilled onto the street. This was one of the first known instances of collective queer resistance to police harassment in the United States.

Paige: Antiquated anti-cross-dressing laws began to get overturned city by city and state by state around the 70’s and world is beginning to construct and define the concept of transness as we know it today, but as we know, this does not somehow fix the law’s punishment of gender non-normativity and deviance. The law and prison’s relationship with gender-non-conforming and trans folks and the criminalization of transness is a much more complicated history. This story is one that involves: power structures, race, class, medicine, and more. The law and prison’s very existence is tied up in bias and punishing deviance.

Sydney: Fast Forwarding to the early 2000’s, America’s prison system has continued to fail to acknowledge and address safety issues relating to transgender prisoners. In 2003, Congress passed the Prison Rape Elimination Act, or PREA.

Paige: This act provides the basis for almost all transgender policies in prison today.  PREA was passed in response to concern over the high level of sexual violence that occurs in prison, and in 2009 the National Prison Rape Elimination Commission identified transgender populations in prison to be at an unusually high risk of sexual assault and labeled them as a vulnerable population.

Sydney: While PREA is supposed to set a baseline, many states fail to comply with the standards that it outlines, leaving trans prisoners in danger. The Prison Policy Institute performed a study that measured the compliance by state to PREA’s standards relating to transgender inmates. Out of 21 states, they found that only one, Pennsylvania, fulfilled all PREA requirements. Many of the facilities did not have separate showers, didn’t consider gender identity when placing inmates in housing, and still performed searches to examine and label transgender inmates’ genitals. In addition, the study measured whether the prisons had pass their PREA audits, where an examiner comes and checks whether the system is compliant. Even though many of these states had violations when the study examined them, they all passed their PREA audits. Every single facility. So one has to question not only why the transgender policies do not fulfill PREA standards but also why they can pass the audits with blatant violations.

Paige: We asked Eli about the effects of the noncompliance to these PREA standards relating to placement in prisons.

Eli: Its also really traumatic to be basically required to conform to gender grooming standards that misalign with your gender. So, men’s prisons, women’s prisons require a certain kind of gender grooming, disallow make up, really hard to get bras you usually have to have them medically prescribed to you as transwoman, you have to wear masculinized institutional clothing as a transwoman, some will alter their clothing, but that’s technically an institutional violation so doing that means they often get written up which means that their sentences are extended or at least they lose good time, so trans people end up often staying longer because of these things, so there’s a lot of trauma and violence that is kind of cyclical in a lot of ways.

Sydney: Eli explains how gender nonconforming prisoners are not housed in the places where PREA requires them, leading to this cycle of incarceration. Trans inmates are forced to violate prisoner dress codes and grooming standards because officials fail to assign them to the correctional facility that aligns with their, which leads to longer sentences. The system seems to be structured to keep transgender people in prison and away from society as long as possible.

Derek: In addition to these violations on trans prisoner placement, many gender nonconforming inmates experience an immense amount of trouble when it comes to accessing the health care that they need. Eli says that we must in mind that while trans prisoners may have a little more difficulty than other inmates in accessing their medical necessities, these difficulties exist in a broader, broken system.

Eli: One piece of context that’s really important is that basically all medical treatment in prison is terrible. People die or are disabled pretty regularly in prison and jails because the medical treatment is terrible. So there’s incentive for a number of reasons for prison and jail administrators not to provide adequate medical treatment, which a lot of the time is monetary but is also about the ways that people who are incarcerated are not seen as human or not deserving and getting things for free so that’s part of the really important context.

Sydney: Even while keeping this in mind, research on transgender prisoners shows that their access to healthcare is remarkably bad. A study was published in the Journal of Correctional Healthcare that sent freedom of information requests to al fifty correctional departments that asked a series of questions relating to trans inmate healthcare. They requested information surrounding access to hormones, psychiatric evaluations, and genital reassignment surgery.  Out of the 44 states that responded, 19 reported that they did not have any official healthcare policies on transgender inmates, failing to recognize them as a population. Many failed to list genital reassignment surgery as medical treatment, and some states said that they would only continue hormone treatment and would not take responsibility for diagnosing any new inmates without a prior diagnosis of gender dysphoria.

Paige: Eli explained how getting access to hormones without an existing legitimate diagnosis of dysphoria is extremely difficult in the prison setting even if a state does not have a policy prohibiting initiation of treatment.

Eli: So the problem is that most folks who come into prisons have not had access to insurance medical treatment may already be on hormones but may be getting them from the black market and don’t have a legitimate diagnosis. And if you don’t have a legitimate diagnosis and prescriptions, then they’re not going to just provide it to you. So now folks often can request medical evaluations and go through various kinds of processes to get a diagnosis of what is now gender dysphoria diagnosis and a prescription for hormones. It can be really hard to get that, and often prisons will hire people who don’t believe that it is very medically necessary to provide medicine for trans folks, or have a really high standard for that.

Derek: The most famous case of a transgender prisoner by far is Chelsea Manning. She was the first to really bring attention to the injustice of trans prisoners into the mainstream media. Chelsea Manning, then Bradley Manning, was a US Army Intelligence analyst stationed in Iraq. During that time, Manning became disillusioned with America’s seemingly pointless occupation of Iraq and the invisible brutality of war to Americans back home. She is most notoriously known for leaking hundreds of thousands of US military data, reports, and records to Wikileaks. She was subsequently charged with a score of crimes, including aiding the enemy, which carries a life sentence. She was ultimately sentenced to 35 years.  It is important to note that Manning’s case is slightly different from most trans prisoners because she was in a military prison. With that being said, there were still numerous similarities, such as the lack of proper health care, abuse from prison guards, and strict sex-related restrictions on hygiene and appearance. Manning recounted in a recent New York Times interview how she would often plead with guards and prison staff that she was a woman and needed to be treated as such under prison regulations only to be laughed and taunted at.

Paige: We asked Eli about the effects of the mainstream media attention on Chelsea Manning and if it has helped make progress with trans rights in prison.

Eli: She was probably the most visible incarcerated trans women so there was a level of visibility for people who think about incarceration and the conditions of confinement don’t really think about oh there are women in men’s prisons and vice versa. So I hope that it brought some public visibility but particular for folks who are already thinking about rights and experiences of incarcerated people because its often not talked about in prison activism and other kinds of work. In fact, the experience and existence of trans people is completely erased because of the binary sex assumptions and also structure of the system.

Sydney: Eli’s emphasis on how  prisoner rights activists often fail to focus on trans prisoners mirrors the narrative that trans rights activist communities do not highlight incarcerated trans people in their work. But, trans inmate rights have become more of an emphasis for these groups in recent years, and this work will only continue to gain more attention in the future. In 2017, Shiloh Quine became the first inmate to receive state-funded gender reassignment surgery while incarcerated. While the steps are small, progress is being made. We asked Eli what a world would look like where the penal system was a perfect, safe place for trans inmates and what steps he thought should be taken to get a little closer to achieving this perfect world. He emphasized how giving trans inmates agency would help improve many of their situations.

Eli: Having trans prisoners actually have a say of where they’re housed and how they’re housed in terms of assessing where they are the safest. Because there’s no one answer for it. In part because the whole system is violent, but for some transwomen that means being housed in a men’s prison in general population. For others that’s being housed in a women’s prison. For others that means being housed in a men’s prison in segregation. Which is often where transwomen are actually housed they’re not in general population they’re housed in segregation. So there is no one size fits all, but transwomen often know where they’ll be safest, especially if they have been in the system before, but the prison is set up so their choice and their thinking doesn’t matter whatsoever. They’re rarely believed and rarely consulted.

Paige: It is not clear what the solution to helping transgender people in prison is– but some believe it may lie in abolishing the prison system we know today entirely. Many scholars and activists believe it’s important not to view the prison system as an isolated site but part of a society that reproduces, reflects, and is shaped by larger factors such as white supremacy, transphobia, and heteropatriarchy The power structures that exist in the penal system reflect those that exist in society. It’s a deeply reciprocal system structured on who is valued in society vs who is deserving of punishment. Some people like Eli, believe the only way to restore this balance of power and give incarcerated people and transgender incarcerated people justice would be through reimagining how our system works entirely, through prison abolition.

Eli: “I will say that I am a prison abolitionist and that’s actually the intellectual and activist tradition that I’m coming from that is very connected to and thinking through prison abolition. Part of the basis of that is basically what I was just talking about in understanding that prisons are not isolated things and not shape but ground particularly white supremacy and heteropatriarchy and all of these things. For me its about and many of the organizations its about reforming how we enact justice where instead of it being retribution that is ultimately is harmful to literally everybody, and then continues this cycle of violence about having people held accountable and responsible and then working through the harm that they have done to other people.

Derek: In examining the lives of transgender inmates, we’ve discovered this history and story to be a complicated one. We’ve seen how trans people have been unfairly targeted in the past with conformity laws such as those banning cross dressing to blatant discrimination in businesses and queer resistance to these situations such as the Compton Cafe riot in the 1960s. Today, we see that mistreatment continuing in the form of abuse in the prison system. Trans people are far more likely to face verbal and sexual abuse in prison as well as suffer severe mental health problems. They are often denied hormone therapy and are forced to comply to improper gender regulations hygiene and appearance. Despite the good intentions of PREA, the law has been mostly ignored, as only 1 out of 21 states was found to comply to PREA’s standards. Prison healthcare obviously needs reform, and standards like PREA’s actually need to be enforced. Or maybe, as Eli Vitulli believes, prison as we know it need to be abolished.

 From Grinnell College, I’m Derek Jones with Sydney Banach and Paige Oamek. Thank you for listening.