Meeting the needs of transgender people and protecting their rights can be challenging for correctional facilities as they present with unique vulnerabilities and needs related to housing, medical treatment and privacy, among other concerns. Here, we will review five essential skills to provide adequate care for transgender inmates and comply with current legal requirements.
Know the basic terminology
Transgender is a non-medical term that refers to the broad spectrum of individuals who transiently or persistently identify with a gender different from the gender they were assigned at birth.
The majority of people who identify as transgender have taken steps to transition from one gender to another, which can range from changing the way they dress to undergoing medical procedures to change their physical characteristics and make their body match the gender they believe they truly are.
Note that being transgender is entirely separate from having a particular sexual orientation. Transgender people may be straight, lesbian, gay, bisexual or questioning.
Gender dysphoria is a medical diagnosis listed in the latest Diagnostic and Statistical Manual of Mental Disorders (DSM-5), (American Psychiatric Association [APA], 2013, and it involves a conflict between a person’s physical or assigned gender and the gender with which they identify.
“People with gender dysphoria may often experience significant distress and/or problems functioning associated with this conflict between the way they feel and think of themselves (referred to as experienced or expressed gender) and their physical or assigned gender”. (APA, 2016)
- Note that not all transgender people experience gender dysphoria. Gender dysphoria does not equal transgender.
- Transgender identity is not in the DSM-5 and is not considered a form of psychopathology.
An abbreviation for “lesbian, gay, bisexual, transgender, and intersex”. The National Institute of Corrections (NIC) uses this abbreviation.
Individuals who are born with external genitalia, internal reproductive organs, chromosome patterns, or endocrine systems that do not fit typical definitions of male or female (NIC, 2015).
This is a term used to describe some people whose gender expression is different from cultural norms prescribed for people of a particular sex. Not all gender non-conforming people identify as transgender; nor are all transgender people gender non-conforming.
Understand the vulnerabilities of transgender inmates
Sexual victimization during incarceration is a serious concern for transgender inmates. Research shows that transgender individuals are 10 times more likely to be sexually assaulted than the general prison population (Beck, 2014). Such abuse is perpetrated not only by other inmates but also by prison staff.
How are transgender inmates vulnerable during incarceration?
- Higher risk of victimization (violence and sexual assault)
- Increased suicidality and self-harming behaviors
- Higher rates of depression, anxiety and PTSD
- Higher rates of HIV
- Higher rates of substance abuse
- Overall poorer health
Know and follow current best practices for transgender care
Currently, the World Professional Association for Transgender Health’s (WPATH) standards of care are widely considered the best practices in the field (Prison Policy Initiative, 2017), (National Commission on Correctional Healthcare [NCCHC], 2015).
WPATH standards are flexible and focus on and individualized approach supporting the person’s understanding of their gender and is highly personalized based on their individual needs. Treatment can include a combination of psychotherapy, hormone therapy, or surgeries. Gender expression and gender identification is encouraged (NIC, 2015).
Understand the legal rights of transgender inmates
Transgender incarcerated people have specific civil rights under the U.S. Constitution and state and federal statutes, in addition to the Prison Rape Elimination Act (PREA standards), (National Center for Transgender Equality, 2018).
In the past 20 years the law has made important changes regarding the care of transgender inmates as a result of lawsuits. Some of the issues that courts have ruled on have focused on:
- The right to medical treatment for gender dysphoria
- Male to female transgender inmates.
- Housing and safety
For a thorough review of transgender inmates and the current state of the law click here (link to the CCT course)
Know how PREA Standards apply to transgender inmates
The Prison Rape Elimination Act (PREA) Standards for Adult Prisons and Jails (2012)
are a comprehensive set of federal rules, designed to acknowledge, prevent and respond to incidents of sexual abuse in correctional facilities in the U.S.
Even though PREA Standards do not give inmates a right to sue if facilities don’t comply with those standards, if there is a lawsuit, courts will likely consider whether the facility failed to take steps outlined by PREA that might have prevented the abuse. Additionally, accrediting organizations such as the ACA, are required to adopt PREA standards. Some transgender issues addressed by PREA Standards include:
Individuals must be screened upon intake for risk factors for experiencing abuse, including whether they identify as transgender, intersex or gender non-conforming.
A facility must assess housing options (i.e. whether they belong in a men’s or women’s facility) on a case-by-case basis when an individual identifies as transgender or with an intersex condition. The individual’s views regarding their own safety must be seriously considered in housing decisions.
Protective Custody/ Segregation
Between 65% and 85% of transgender detainees are put in solitary confinement unnecessarily, which has many negative mental health implications (McCauley, 2018). However, PREA standards state that involuntary placement in segregated housing or solitary confinement for the protection of transgender inmates should not be done, unless it is the only available option.
Correctional staff may not physically search transgender people to determine their genital status; all examinations must be conducted by a medical professional as part of a broader medical exam.
Sexual assault incidents
The review team must review whether the incident was motivated by gender identity and/or transgender status, among other factors.
The field of transgender care in corrections is complex and constantly changing in both the medical and legal areas. Knowing the basics about transgender care and the current laws is the first step to improving care for this vulnerable population and assessing litigation risks.
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (DSM-5). (5th ed.). Arlington, VA: American Psychiatric Publishing.
American Psychiatric Association. (2016) What is gender dysphoria? Retrieved from https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria
National Center for Transgender Equality. (2012). LGBT people and the Prison Rape Elimination Act. Retrieved from https://transequality.org/issues/resources/lgbt-people-and-prison-rape-elimination-act Accessed on November 20, 2019.
Beck, A. (2014). Sexual victimization in prisons and jails reported by inmates, 2011–12. Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf
McCauley, E., Eckstrand, K., Desta, B., Bouvier, B., Brockmann, B. & Bringley-Rubinstein, L. (2018). Exploring healthcare experiences for incarcerated individuals who identify as transgender in a southern jail. Transgender Health. 3(1): 34-41. doi: 10.1089/trgh.2017.0046
National Center for Transgender Equality. (2018). Policies to increase safety and respect for transgender prisoners: A guide for agencies and advocates. Retrieved from https://transequality.org/sites/default/files/docs/resources/PoliciestoIncreaseSafetyandRespectforTransgenderPrisoners.pdf
National Commission on Correctional Health Care. (2015). Position Statement. Transgender, transsexual, and gender nonconforming health care in correctional settings. Retrieved from https://www.ncchc.org/transgender-transsexual-and-gender-nonconforming-health-care
National Institute of Corrections. (2015). Policy review and development guide: Lesbian, gay, bisexual, transgender, and intersex persons in custodial settings. (2nd ed.). Retrieved from https://www.prearesourcecenter.org/sites/default/files/library/lgbtipolicyguideaugust2013.pdf
National PREA Resource Center. (n.d.). Prison Rape Elimination Act. Retrieved from https://www.prearesourcecenter.org/about/prison-rape-elimination-act-prea
Prison Policy Initiative. (2017). The dismal state of transgender incarceration policies. Retrieved from https://www.prisonpolicy.org/blog/2017/11/08/transgender/#fn:2
The World Professional Association for Transgender Health. (2011). Standards of care for the health of transsexual, transgender, and gender nonconforming people. Volume 7. Retrieved from www.wpath.org/publications/soc