by Christopher Zoukis

According to the Bureau of Justice Statistics (BJS), about 34 percent of transgender people held in prisons or jails reported being subjected to at least one incident of sexual violence while incarcerated. That’s eight times the rate for prisoners overall – and a large number of the 3,200 transgender prisoners the BJS counted in 2012.

In most jails and prisons, self-professed gender identity is not considered when determining whether to place a prisoner in a men’s or women’s facility. This leads to situations like that of Jane Doe – a 52-year-old Massachusetts prisoner who filed a November 2017 lawsuit challenging the Department of Correction’s policy in that state, which placed her in a prison for males despite the fact that she transitioned to female more than 40 years ago.

Lawsuits like Doe’s – along with a recent increase in political pressure – have coincided with incremental changes in the way the needs of transgender prisoners are addressed by prison officials. [See: PLN, June 2018, p.54].

Connecticut recently enacted what might be the most sweeping changes to the way transgender prisoners are treated. SB-13, which went into effect on July 1, 2018, gives those prisoners the right to be housed in a facility that matches their gender identity. The new policy requires a medical diagnosis of gender dysphoria or a legal identification that matches the prisoner’s gender identity. Mike Lawler, the governor’s undersecretary for criminal justice policy and planning, emphasized the policy was carefully crafted.

“I’m sure there will be people who will say, ‘So how does this work?’” he said. “If you are a guy, do you just say you’re a woman and you get to go to a woman’s prison? No. There is a very elaborate analysis, psychological and otherwise.”

In addition to housing changes, Connecticut’s new law also gives prisoners the right to be searched by a guard who matches their identified gender, to be addressed in a manner appropriate to their identified gender, and to purchase and possess hygiene and clothing items that correspond to their gender identity.

David McGuire, executive director of the ACLU of Connecticut, called the policy a “really big deal,” adding, “It is, in our mind, the most progressive transgender policy and law in the country.”

In August 2018, Florida transgender prisoner Reiyn Keohane, 24, won her battle against the state’s DOC and its “freeze-frame” policy toward drug treatment – including hormone therapy she was undergoing at the time she was arrested in 2013 and placed in the Lee County jail. Because the jail did not continue the therapy, she was no longer on it when she arrived at a state prison after her conviction. Under its policy at the time, the DOC said it therefore had no obligation to resume the treatment.

Keohane, who began identifying as transgender at age 8, had been dressing and grooming herself as a woman since age 14. She was diagnosed with gender dysphoria at 16. Once in DOC custody, however, she was not only placed with male prisoners but her hair was forcibly shaved. She was denied feminine underwear or grooming products. After she filed suit, the DOC allowed her to grow her hair and resume hormone therapy – dropping its “freeze-frame” policy. But she still was not allowed the underwear and grooming products she needed.

In his ruling, U.S. District Court Judge Mark Walker savaged Keohane’s mistreatment by DOC officials, including Secretary Julie Jones, whom he called “indifferent” to Keohane’s suffering, as well as chief of security operations James Upchurch, whom Walker said “was downright baffled over the differences between transgender people, gay people, and people diagnosed with gender dysphoria” during testimony. Saying the case was “about whether the law, and this court by extension, recognizes Ms. Keohane’s humanity as a transgender woman,” Walker declared: “The answer is simple. It does, and I do.”

In July 2018, the Seventh Circuit Court of Appeals overruled a lower court’s dismissal of a lawsuit filed against the Wisconsin DOC by prisoner Lisa Mitchell. The 37-year-old, who has lived as a woman most of her life, spent much of an 18-month sentence for child enticement seeking permission to resume hormone therapy she had started in 2008 after a gender dysphoria diagnosis. By the time the DOC had completed a review of her request, she was within six months of release and told she would have to wait until then to seek treatment.

When Mitchell was placed on supervised release in 2013, however, probation officials refused to let her obtain hormone therapy; they also conditioned her release on dressing and presenting herself as male. She sued in 2015, but the district court did not agree that the DOC’s actions constituted “deliberate indifference” to her medical needs.

On appeal, Seventh Circuit Chief Judge Diane Wood said, “Punishment for Mitchell’s crimes cannot extend to the deprivation of the medical treatment she requires for her serious gender dysphoria.... Wisconsin DOC staff must approach Mitchell’s request for treating gender dysphoria with the same urgency and care as it would any other serious medical condition.”

The case was remanded to the district court for further proceedings. See: Mitchell v. Kallas, 895 F.3d 492 (7th Cir. 2018).

But there are limits to how far a court is willing to go to secure treatment for transgender prisoners. In July 2018, the Tenth Circuit Court of Appeals declined to overrule a lower court that found the Kansas DOC did not violate the constitutional rights of transgender prisoner Michelle Renee Lamb by refusing her requests for increased dosages of hormones and sex reassignment surgery.

A DOC doctor testified that Lamb’s current treatment consisting of hormones and therapy had “proven beneficial,” rendering surgery unnecessary. DOC officials claimed they had merely relied on that medical opinion when denying Lamb’s requests. The district court agreed the DOC could not be liable for “deliberate indifference,” even if it later turned out the doctor was wrong. That decision was affirmed on appeal.

Back in Massachusetts, Jane Doe won her case on June 14, 2018, with a ruling that took the state’s DOC to task in an opinion issued by U.S. District Court Judge Richard G. Stearns. Doe, who is a non-violent drug offender, was not only forced to live with male prisoners but also subjected to strip searches by male guards, who called transgender prisoners “wannabe women.”

“In this sense, compulsory assignment to a men’s prison caused Doe to be treated differently from other female prisoners in the Massachusetts penal system,” Stearns wrote.

He ordered the DOC and Doe’s attorneys to work out an agreement, stating, “the court is of the view that Doe may very well prevail on her” Americans with Disabilities Act and Fourteenth Amendment equal protection claims. The case remains pending. See: Doe v. Mass. Dep’t of Corr., U.S.D.C. (D. Mass.), Case No. 1:17-cv-12255-RGS; 2018 U.S. Dist. LEXIS 99925.

Lastly, with respect to legal actions brought by transgender prisoners, Texas prison officials settled a lawsuit in March 2018 brought by former prisoner Passion Star, which resulted in changes in policies regarding LGBTQ prisoners and additional staff training. Star was paroled in June 2017 after serving 14 years. [See: PLN, Sept. 2018, p.60]. 

Sources: Boston Globe, Orlando Sentinel, Village Voice, Newsweek, www.oregonlive.com, www.them.us, www.courant.com, www.thesouthern.com, www.correctionsone.com, www.independent.co.uk

Subscribe today

Already a subscriber? Login

Related legal cases