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SAFETY AND SOLIDARITY ACROSS GENDER LINES:
RETHINKING SEGREGATION OF TRANSGENDER
PEOPLE IN DETENTION
by GABRIEL ARKLES∗
The correctional officers are the ones who are the most violent.
They’re the ones to be scared of. . . .
I’m raped on a daily basis, I’ve made complaint after complaint, but
no response. No success. I’m scared to push forward with my
complaints against officers for beating me up and raping me. I was
in full restraints when the correctional officers assaulted me. Then
after they said I assaulted them. All the officers say is “I didn’t do
it.” The Inspector General said officers have a right to do that to
me. That I’m just a man and shouldn’t be dressing like this . . . .
When you get beat up real bad and they don’t want to take you out to
get checked out, they put you in the snake pit. They threw me in the
snake pit for 6 months after beating me up. Six months! They’re
animals . . . I got beat up by 12 officers. I’m only 123 lbs.
—Bianca1

INTRODUCTION
Over the past several decades in the United States we have seen mass
incarceration balloon, to the point where we incarcerate more people per capita
than any other nation in the world,2 holding millions of people behind bars.3 One in

∗
Gabriel Arkles is Staff Attorney at the Sylvia Rivera Law Project in New York City. He has done
activism and advocacy around issues of gender, sexual orientation, and HIV for ten years. At the Sylvia
Rivera Law Project, he has provided free legal services to hundreds of low-income transgender, intersex,
and gender nonconforming people of color on issues such as name changes, identity documents,
immigration, discrimination in sex-segregated facilities, and Medicaid. For the past two years, he has
had the honor of working exclusively with imprisoned transgender, intersex, and gender nonconforming
people and those recently released from detention. He has also done impact litigation and policy work to
advance the rights of trans people, including participating in successful advocacy to create policies
prohibiting discrimination against transgender youth in juvenile detention in New York. He graduated
from NYU School of Law Order of the Coif and magna cum laude in 2004. While at NYU, he received
the Tom Stoddard Arthur Garfield Hays Fellowship for work in sexual orientation and the law.
1. SYLVIA RIVERA LAW PROJECT, IT’S WAR IN HERE: A REPORT ON THE EXPERIENCES OF
TRANSGENDER AND INTERSEX PEOPLE IN NYS MEN’S PRISONS 19-20 (2007), http://www.srlp.
org/files/warinhere.pdf.
2. THE UNITED STATES STANDS ALONE ON HIGH INCARCERATION, in THE PRISON INDEX: TAKING
THE PULSE OF THE CRIME CONTROL INDUSTRY (2003) [hereinafter THE PRISON INDEX: TAKING THE

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every thirty-two people in the U.S. is under some form of correctional supervision.4
While only five percent of the world population lives in the U.S., U.S. prisons and
jails contain twenty-five percent of the world’s population of imprisoned people.5
Incarceration has had a particularly devastating effect on marginalized
communities.6 Transgender people,7 particularly transgender people of color, have
been hard hit by mass-incarceration.8 Over the years, transgender people in prison
have fought for their rights, often through bringing pro se law suits that have
shaped the course of constitutional law,9 and in recent years increasing numbers of
advocacy groups and scholars have given some attention to the needs and demands
of these communities.10

PULSE], http://www.prisonpolicy.org/articles/prisonindex_highincarceration.pdf; The Sentencing
Project, Facts about Prisons and Prisoners (2008), http://www.sentencingproject.org/Admin%5CD
ocuments%5Cpublications%5Cinc_factsaboutprisons.pdf; Adam Liptak, 1 in 100 U.S. Adults Behind
Bars, New Study Says, N.Y. TIMES, Feb. 29, 2008, at A12.
3. WHY DOES PRISON BUILDING CONTINUE WHEN CRIME DROPS? in THE PRISON INDEX: TAKING
THE PULSE, supra note 2, http://www.prisonpolicy.org/articles/prisonindex_prisonbuilding.pdf.
4. SILJA J.A. TALVI, WOMEN BEHIND BARS: THE CRISIS OF WOMEN IN THE U.S. PRISON SYSTEM
xiv (2007).
5. Id.
6. See infra notes 29-32. Communities of color are particularly targeted for incarceration, to the
point that young black men have a higher chance of going to prison than going to college. Prison Policy
Initiative, Black Male Population, http://www.prisonpolicy.org/graphs/blackmalepop.html (last visited
Apr. 4, 2009). Additionally, thirteen percent of black men have lost their right to vote because of a
criminal conviction. ERIKA WOOD, RESTORING THE RIGHTS TO VOTE 8 (2008).
7. Transgender people, or trans people, are people who have a gender identity or gender expression
that is different from that traditionally associated with their assigned sex at birth. Transgender women
are transgender people who now identify as women. Transgender men are transgender people who now
identify as men. Some transgender people do not identify as men or as women, but as both, neither, or
another gender altogether. Transgender people are highly diverse in terms of sexual orientation, race,
religion, class, national origin, age, (dis)ability, body type, and immigration status.
8. SYLVIA RIVERA LAW PROJECT, supra note 1, at 15-16; Sydney Tarzwell, Note, The Gender
Lines Are Marked with Razor Wire: Addressing State Prison Policies and Practices for the Management
of Transgender Prisoners, 38 COLUM. HUM. RTS. L. REV. 167, 170 (2006).
9. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994) (establishing that prison officials can be held
liable for denying humane conditions of confinement in violation of the Eighth Amendment if there is
knowledge of substantial risk of injury).
10. See generally Anita C. Barnes, The Sexual Continuum: Transsexual Prisoners, 24 NEW ENG. J.
ON CRIM. & CIV. CONFINEMENT 599 (1998) (proposing new policies for prisons with transgender
prisoners); Alexander Lee, Gendered Crime & Punishment, 4 GIC TIP J. 1 (2004) [hereinafter Lee,
Gendered Crime]; Rebecca Mann, The Treatment of Transgender Prisoners, Not Just an American
Problem—A Comparative Analysis of American, Australian, and Canadian Prison Policies Concerning
the Treatment of Transgender Prisoners and a “Universal” Recommendation to Improve Treatment, 15
LAW & SEXUALITY 91 (2006); Dana O’Day Senior, The Forgotten Frontier? Healthcare for
Transgender Detainees in Immigration and Customs Enforcement Detention, 60 HASTINGS L.J. 453
(2008); Christine Peek, Breaking out of the Prison Hierarchy: Transgender Prisoners, Rape, and the
Eighth Amendment, 44 SANTA CLARA L. REV. 1211 (2004); Darren Rosenblum, “Trapped in Sing
Sing:” Transgendered Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499 (2000);
Tarzwell, supra note 8; Alvin Lee, Comment, Trans Models in Prison: The Medicalization of Gender
Identity and the Eighth Amendment Right to Sex Reassignment Therapy, 31 HARV. J.L. & GENDER 447
(2008).

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That transgender people in detention experience horrific levels of violence is
indisputable. A recent study showed that fifty-nine percent of transgender women11
in California men’s prisons have been sexually assaulted while incarcerated, as
compared to four percent of a random sample of people incarcerated in California
men’s prisons.12 Lesbians13 and transgender people are also disproportionately
targeted for sexual assault in women’s detention facilities.14 People with intersex
conditions15 and other gender nonconforming people16 face similar problems.
One primary means that agencies employ and that courts endorse purportedly
to increase safety in detention is solitary confinement.17 Two basic premises can
make solitary confinement seem like a reasonable measure to increase safety for
11. More extensive research, litigation, and scholarship is available regarding transgender women
than regarding other transgender people. In part, this fact is due to ways that transphobia manifests itself
differently in different communities. Whereas trans women tend to receive some public if highly
stigmatized and problematic attention, transgender men and trans people who do not identify as men or
as women are frequently made almost entirely invisible in culture and law. See THE FTM SAFER
SHELTER PROJECT RESEARCH TEAM, INVISIBLE MEN: FTMS AND HOMELESSNESS IN TORONTO 22
(2008), http://wellesleyinstitute.com/files/invisible-men.pdf (discussing the lack of awareness among
homeless shelter staff of the existence of homeless female-to-male transgender people ); ALEXANDER
LEE, NOWHERE TO GO BUT OUT: THE COLLISION BETWEEN TRANSGENDER & GENDER-VARIANT
PRISONERS AND THE GENDER BINARY IN AMERICA’S PRISONS 23 (2003) (discussing how overly narrow
constructions of the term transgender as well as a lack of public representation of FTM spectrum people
contribute to the scant attention transgender people in women’s prisons receive) [hereinafter LEE,
NOWHERE TO GO BUT OUT]. Additionally, trans men are usually placed in women’s detention facilities,
and women’s detention facilities receive considerably less public attention than do men’s. TALVI, supra
note 4, at 4-5.
12. VALERIE JENNESS ET AL., VIOLENCE IN CALIFORNIA CORRECTIONAL FACILITIES: AN
EMPIRICAL EXAMINATION OF SEXUAL ASSAULT 3 (2007), executive summary available at
http://ucicorrections.seweb.uci.edu/pdf/Executive_Summary_of_Val_s_PREA_report.pdf.
13. Here and elsewhere in my Article I make some reference to research, cases, and other sources
concerning the experiences of imprisoned people identified as gay, lesbian, bisexual, or queer and not as
transgender. It is not my intention to conflate the distinct concepts and experiences of sexual orientation
and gender identity. I do however believe that discussing the experiences of queer prisoners is often
relevant even when focusing on trans issues, for three reasons. First, regardless of the actual sexual
orientation of trans people, they are overwhelmingly perceived to be lesbian or gay by prison officials
and face homophobia in addition to transphobia. Second, I am aware of more than one published case
where the plaintiff was referred to only as gay, but where the plaintiff actually considered herself to be
transgender, a fact I learned only through my personal acquaintance with the person. I believe that trans
identities are excluded from judicial opinions and research far more often than the few times that I have
personally noticed. Third, while many trans people are straight and most queer people are not trans,
there is also significant overlap between these communities. Many trans people in detention also
consider themselves to be gay, lesbian, bisexual, or queer. Many queer people in detention, even if they
do not identify as trans, do not match gender norms in significant ways and experience transphobia as a
result.
14. Tarzwell, supra note 8, at 178.
15. Intersex conditions or differences of sex development are a variety of physical conditions that
can cause a child to be born with a reproductive or sexual anatomy and/or chromosome pattern that
does not seem to fit typical definitions of male or female. Advocates for Informed Choice, Frequently
Asked Questions, http://www.aiclegal.org/faq.html (last visited Apr. 4, 2009).
16. I use the term gender nonconforming to describe people who may experience discrimination
because they present themselves in a way that does not fit dominant gender stereotypes, but who do not
necessarily identify as transgender.
17. See infra Section V (describing problems of solitary confinement for transgender people).

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transgender, intersex, and gender nonconforming (TIGNC) people. The first is that
that isolation and control, rather than relationships and freedom, reduce violence.
The second is that other prisoners rather than facility staff are the primary
perpetrators of violence from whom TIGNC people need protection within
detention systems.18 In this Article, I argue that both of these premises are false.
Involuntary segregation from other people in detention is in reality one of the
greatest threats to the safety of TIGNC people in these systems.
TIGNC prisoners and other prisoners are at times able to form communities
and relationships that resist violence and help people who are targets of violence to
survive. The centrality of community-building in creating safety from violence is
too often forgotten, not only by detention agencies and courts, but also at times by
advocates and scholars. Means for creating community and building positive
relationships must be a central consideration in developing ways to reduce violence
against TIGNC people in detention.
This Article begins with a discussion of the causes and nature of violence
within detention, both generally and specifically in terms of violence against
TIGNC people. However, a narrow focus on violence within detention does not
give us a complete picture. Therefore, I next consider the non-violent and antiviolent interactions that take place between and among TIGNC people and nonTIGNC people in detention and the ways that these interactions can help people to
resist and survive the violence of detention. I also give a brief overview of the
general lack of sympathy in the courts for claims to a right to these forms of
positive relationships in detention. With this background, I move on to take a
closer look at solitary confinement. I examine the ways that isolation frequently
further endangers and harms, rather than protects, those subjected to it. I then
review the reasons TIGNC people are disproportionately subject to placement in
solitary confinement. I also look at legal analysis concerning solitary confinement,
including the ways in which unfounded judicial equating of isolation with safety
works to the detriment of imprisoned TIGNC litigants. Finally, I offer a number of
recommendations to meaningfully decrease violence against TIGNC people in
detention.
I approach this work as a white transgender man who has never been
incarcerated. For five years, I have worked at the Sylvia Rivera Law Project
providing free civil legal services to low-income TIGNC people of color. I have
formed the conclusions I present in this Article based largely on my experience
working with TIGNC people in detention. Because I believe that any scholarship
should be grounded to the extent possible in the lived experiences of those
impacted by the issues discussed, I make frequent reference to the experiences of
my clients throughout this Article. To protect their identity, I have changed all
names and some other minor details of the events described. Because most of my
experience has involved working with people in New York State men’s prisons and
jails, most of my examples are drawn from that system. I have also included
examples and based my analysis on some experiences from other systems,
including women’s facilities, facilities in other states, and forms of detention other

18. Id.

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than prisons and jails. While I believe my analysis has relevance to all of these
settings, it is of course most relevant to those that it is most centered on. I
encourage others to look more deeply into issues of segregation and community
building for TIGNC people in systems outside New York State men’s prisons and
jails.
I. UNDERSTANDING VIOLENCE IN DETENTION
Proposals to reduce violence in detention are necessarily founded in implicit
or explicit understandings of what causes and perpetuates violence in detention.
Failing to carefully and consciously consider the causes of violence or relying on
erroneous assumptions concerning those causes can lead to recommendations or
implemented changes that are either ineffective or actually counter-productive in
stemming the tide of violence against TIGNC people and others in detention.
A. Prisoners Are not Inherently any More Prone to Violence than Members of the
Public
As a starting point, I wish to reject the premise that violence is prevalent in
detention because individual prisoners, as people, are intrinsically more inclined
toward violence than people who are not prisoners. The vast majority of people
who are in prison are not there because they are bad or violent people who have
done bad or violent things; they are there because they are people of color, poor
people, people with disabilities, immigrants, trans people, women, queer people, or
otherwise marginalized in society.19 Most of the people who are incarcerated in
prisons in the U.S. have been incarcerated for a non-violent crime, often drugrelated.20 Most of the people incarcerated in jails have not been convicted, but are
pre-trial detainees too poor to pay bail. 21 People in police lock-ups commonly have
not yet even been formally charged with a crime. In other forms of involuntary
government custody such as commitment for psychiatric treatment, immigration
detention, and juvenile detention, people are incarcerated civilly and, therefore, for
no crime at all.
Among the minorities of those people in detention who have been convicted
for violent crimes, a significant number are innocent of the crimes of which they
were convicted.22 Many of these false convictions happen all too easily because of
stereotypes of black, Native American, and Latin@ people as untrustworthy,

19. See MARC MAUER & RYAN S. KING, UNEVEN JUSTICE: STATE RATES OF INCARCERATION BY
RACE AND ETHNICITY, http://www.sentencingproject.org/Admin/Documents/publications/rd_state
ratesofincbyraceandethnicity.pdf (showing proportion of Black and Hispanic prisoners to white
prisoners) (last visited Apr. 4, 2009); David C. Leven, Curing America’s Addiction to Prisons, 20
FORDHAM URB. L.J. 641, 645-46 (1993) (highlighting presence of poor people and people of color in
prisons).
20. The Sentencing Project, supra note 2; Leven, supra note 2, at 646.
21. The Sentencing Project, supra note 2.
22. Innocence Project, Facts on Post-Conviction DNA Exonerations, http://www.innocence
project.org/Content/351.php (last visited Apr. 4, 2009).

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violent, dangerous, and sexually predatory toward white non-trans women.23 Of the
rest, many commit the crime to survive poverty (robberies and burglaries, for
example, are typically considered violent crimes although the primary aim of these
crimes is property-related).24 Others have been violent only in order to defend
themselves.25 Many women and transgender people are arrested for fighting back
against an abuser.26 Some people are violent in a moment of extremity or anger and
would be unlikely to repeat such an act regardless of whether or not they were
punished.27 Others did not realize they were doing anything illegal, and were not
necessarily violent in the everyday sense of the word, as in the case of people
whose convictions arise out of having consensual sex with another teenager only a
couple of years younger than themselves.28 Of course, some people in prison have
deliberately perpetrated terrible acts of violence against other human beings.
However, the same can be said about many people who are not incarcerated. In
fact, it seems entirely fair to say that the vast majority of people who have
perpetrated terrible acts of violence are not incarcerated for those acts.29
23. See generally N. Jeremi Duru, The Central Park Five, The Scottsboro Boys, and the Myth of the
Bestial Black Man, 25 CARDOZO L. REV. 1315 (2004) (discussing three infamous cases in American
history of false imprisonment based, in part, on racial stereotyping).
24. See Leven, supra note 19, at 646 (highlighting the presence of poor and uneducated prisoners).
25. See People v. Kemp, 508 N.W.2d 184, 187-88 (Mich. 1993) (remanding the case due to an
insufficient examination of the self-defense claim).
26. See Women in Prison Project, Correctional Association of New York, Survivors of Abuse in
Prison Fact Sheet, 1 (2008), http://www.correctionalassociation.org/publications/download/wipp/fact
sheets/Suvivors_of_Abuse_Fact_Sheet_2008.pdf (according to a 1996 study, the majority of women
incarcerated in New York City engaged in unlawful acts due to violence, abuse, or coercion by their
male counterparts); AMNESTY INT'L, STONEWALLED: POLICE ABUSE AND MISCONDUCT AGAINST
LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE IN THE UNITED STATES 12 (2005), available at
http://www.amnestyusa.org/outfront/stonewalled/report.pdf (stating that police profile lesbian, gay,
bisexual, and transgender (LGBT) people, particularly transgender and gender nonconforming people
and LGBT people of color, as criminals in a number of contexts”) [hereinafter AMNESTY
INTERNATIONAL, STONEWALLED]; Julia Sudbury, Rethinking Antiviolence Strategies: Lessons from the
Black Women’s Movement in Britain, in COLOR OF VIOLENCE: THE INCITE! ANTHOLOGY 19 (2006)
(stating “the majority of women prisoners are also survivors of violence”); TALVI, supra note 4, at 177.
See generally Imani Henry, Lesbians Sentenced for Self-Defense, WORKERS WORLD June 28, 2007, at 1,
7, available at http://www.workers.org/pdf/2007/ww062807.pdf (discussing the example of four women
being sentenced to prison for defending themselves against a man who assaulted them for being
lesbians).
27. See Anton Forde & Trevor Mattis, Transformation: Visions of What Could Be, in CELLING
AMERICA’S SOUL: TORTURE AND TRANSFORMATION IN OUR PRISONS 210-17 (Judith Trustone ed.,
2003) (discussing the implications of racial discrimination in the penal system and that many prisoners
have been misunderstood by society).
28. See Critics Decry States’ Teen Sex Laws (MSNBC television broadcast Oct. 29, 2007),
available at http://www.msnbc.msn.com/id/21535447/ (arguing that teenagers a couple of years apart in
age having consensual sex should not be criminalized in the same way that people who molest children
are).
See generally Age of Consent (ABC News television broadcast) available at
http://abcnews.go.com/2020/ageofconsent/ (discussing the criminalization of consensual sex between
two teenagers) (last visited Apr. 4, 2009); Niki Delson, Age of Consent—Criminalizing Teen Sex,
http://www.cfcamerica.org/index.php?option=com_content&view=article&id=432:age-of-consentcriminalizing-teen-sex&catid=11:teens-children&Itemid=88 (discussing how normal sexual activity is
being criminalized as “deviant”).
29. Many acts of large-scale violence committed by Americans past and present, such as slavery,

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Most of the people in prisons are people of color.30 Black, Latin@, Native
American, and, in some areas, Asian people are massively disproportionately
represented in detention.31 People with disabilities, particularly psychiatric
disabilities, are also dramatically over-represented.32 The number of people in
women’s prisons is rising at a staggering rate, even compared to the rate of increase
of populations in men’s prisons,33 which many posit is at least in part a form of
backlash against a perceived decrease in the private punishment of (domestic

war, genocide, imprisonment/internment, forced relocation, etc., have been perpetrated by government
actors acting in a legal or quasi-legal capacity. See Ray Luc Levasseur, From USP Marion to ADX
Florence, in THE CELLING OF AMERICA 200, 201 (Daniel Burton-Rose ed., 1998) (“I’ve not met a
convicted felon whose misdeeds were in any way comparable to the massive killing of civilians
perpetrated by the likes of Nixon, Reagan, Bush, et al.”). Even when considering extra legal acts of
violence perpetrated by private actors, however, most are not imprisoned. “The President’s Commission
on Causes and Prevention of Violence estimated that only 1.5 percent of the perpetrators of the
approximately 9 million crimes committed annually ends up in prison.” FAY HONEY KNOPP ET AL.,
INSTEAD OF PRISONS: A HANDBOOK FOR ABOLITIONISTS (Mark Morris ed., 1976), available at
http://www.prisonpolicy.org/scans/instead_of_prisons/index.shtml [hereinafter INSTEAD OF PRISONS].
Very few rapes are actually reported, and an even smaller number result in the incarceration of the
perpetrator. CALLIE MARIE RENNISON, U.S. DEPT. OF JUSTICE, RAPE AND SEXUAL ASSAULT:
REPORTING
TO
POLICE
AND
MEDICAL
ATTENTION
1992-2000,
at
1
(2002),
http://www.ojp.usdoj.gov/bjs/pub/pdf/rsarp00.pdf (stating that only thirty-six percent of sexual assaults
are
reported);
Men
Against
Sexual
Assault,
Sexual
Assault
Statistics,
http://www.sa.rochester.edu/masa/stats.php (last visited Apr. 4, 2009) (stating that only sixteen percent
of sexual assaults are reported).
30. See TALVI, supra note 4, at 58 (noting that, in most states, women and girls of color are
disproportionately represented in prisons); SYLVIA RIVERA LAW PROJECT, supra note 1, at 10 (stating
“white people represent 69.3% of the national population, and 37% of the imprisoned population”).
31. TALVI, supra note 4, at 47. See Peter Wagner, Incarceration is Not an Equal Opportunity
Punishment (June 28, 2005) http://www.prisonpolicy.org/articles/notequal.html (stating that as of 2004,
there were 393 white people incarcerated per 100,000, 957 Latin@ people incarcerated per 100,000, and
2,531 black people incarcerated per 100,000); The Sentencing Project, supra note 2 (stating that the
percentage of black and Hispanic males incarcerated as of 2007 was greater than the percentage of
incarcerated white males); OMAR C. JADWAT, THE ARBITRARY DETENTION OF IMMIGRANTS AFTER
SEPTEMBER 11 at 1, http://www.aclu.org/iclr/jadwat.pdf (last visited Apr. 4, 2009) (stating that “postSeptember 11 detentions were arbitrary because arrests . . . disproportionately affected Muslim men
from South Asian and Middle Eastern countries”); Leven, supra note 19, at 645-46 (stating that
“[a]lthough minorities make up only a small percentage of the nation’s population, close to half of the
prisoners are African American”); Angela Davis, Masked Racism: Reflections on the Prison Industrial
Complex
(1998),
available
at
http://www.thirdworldtraveler.com/Prison_System/
Masked_Racism_ADavis.html (stating that over 70% of the prison population consist of people of
color).
32. See 42 U.S.C.A. § 15601(3) (2006) (stating “America’s jails and prisons house more mentally ill
individuals than all of the Nation's psychiatric hospitals combined”); TALVI, supra note 4, at 144 (noting
that 75.4% of people in local women’s jails and 62.8% of people in local men’s jails exhibit mental
health problems).
33. See TALVI, supra note 4, at 3 (stating from 1977 to 2004 the number of people in women’s
prisons has increased 757% and has continued to increase at roughly double the rate of people in men’s
prisons since 2000); THE SENTENCING PROJECT, WOMEN IN THE CRIMINAL JUSTICE SYSTEM: AN
OVERVIEW
1,
http://www.sentencingproject.org/tmp/File/Women%20in%20CJ/women_cjs_over
view(1).pdf (stating “[t]he number of women in prison has increased at nearly double the rate of men
since 1985, 404% vs. 209%”) (last visited Apr. 4, 2009); Leven, supra note 19, at 647 (stating that “[t]he
number of women in prison more than tripled from 1980 to 1990”).

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violence against) women34 as well as the incarceration of people who have been
“deinstitutionalized” from psychiatric institutions, in which women have
historically been over-represented.35 While statistics are less available, it is
nonetheless likely that trans and queer people are also present in prisons in highly
disproportionate numbers.36 To accept a “common sense” characterization of these
millions of human beings as intrinsically prone to violence is to excuse a morally
bankrupt system and to further the racist stereotypes that (re)create the massincarceration and enslavement37 of people of color in this country.
B. Incarceration Itself Is Violent
Prisons, jails, police lock-ups, and juvenile and immigration detention
facilities are violent by their very nature. These facilities are places where people
are torn from their communities and deprived of liberty, privacy, autonomy, and
dignity. The use of force is intrinsic to their function.38 Putting people into
shackles or cages, forcing people to strip and bend over for agents of the state to
inspect their naked bodies, and foreclosing a whole range of opportunities en masse
to groups of marginalized people, particularly people of color, are all acts of
violence.39 While reform may somewhat lessen detention system violence, it is
impossible to eliminate the violence altogether while retaining the system.

34. See, e.g., Sudbury, supra note 26, at 16-17 (discussing the masculinist backlash and moral panic
that portrayed women’s liberation as removing social and psychological constraints on women’s
aggression and lead to perceptions of increased violence among women).
35. TALVI, supra note 4, at 145.
36. See SYLVIA RIVERA LAW PROJECT, supra note 1, at 16 (noting that transgender people are
discriminated against and target by the police); WOMEN IN PRISON PROJECT, CORRECTIONAL
ASSOCIATION OF NEW YORK, TRANSGENDER ISSUES AND THE CRIMINAL JUSTICE SYSTEM 2 (2007),
http://correctionalassociation.org/publications/download/wipp/factsheets/Transgender%20Issues%20%2
0CJS%20FINAL.pdf (stating “[p]olice frequently target transgender people for arrest and harassment”);
Sally Kohn, Greasing the Wheel: How the Criminal Justice System Hurts Gay, Lesbian, Bisexual and
Transgendered People and Why Hate Crime Laws Won’t Save Them, 27 N.Y.U. REV. L. & SOC.
CHANGE 257, 259-60 (2002) (discussing how hate crime legislation does not adequately protect
individuals and instead reinforces discrimination).
37. Slavery remains permissible under the Thirteenth Amendment for those who have been
convicted of crimes. U.S. CONST. amend. XIII, § 1. Imprisonment and forced labor for private
corporate as well as government interests has in many ways continued the legacy of enslavement of
African Americans and other disenfranchised people in the U.S. See, e.g., ANGELA DAVIS, ARE
PRISONS OBSOLETE? 29 (2003) (outlining the racialization of crime post-emancipation); Paul Wright,
Slaves of the State, in THE CELLING OF AMERICA, supra note 29, at 102-06 (providing a description of
the increased incarceration and subsequent forced labor of African American people in prisons after the
civil war).
38. MARIE L. GRIFFIN, THE USE OF FORCE BY DETENTION OFFICERS 1 (2001). “Jails are coercive
organizations, and even routine interactions between officers and inmates take place within an
environment of structured conflict. Given the officer’s need to maintain control over inmates, the use or
threatened use of force by detention officers against inmates is a routine part of daily operations.” Id.
39. See Cassandra Shaylor, “It’s Like Living in a Black Hole”: Women of Color and Solitary
Confinement in the Prison Industrial Complex, 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 385,
407 (1998) (“Prisons do perpetuate violence, however, in the form of destruction of families, and in the
wholesale destruction of economic and political power in the communities in which those families
live.”) (emphasis in original).

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C. Systemic Factors Contribute to Extralegal Staff Violence
Violence beyond that which is legal is also built into the system. Staff
violence against prisoners is extraordinarily widespread. While in theory the law
constrains this violence to that which is in a “good faith effort to maintain or restore
discipline,”40 rape, sexual assault, beating, and even murder are also common.41
These incidents are not simple individual aberrations.42 Detention gives one group
of people near absolute control over every aspect of life for another group of
people. In many geographic areas, people in the former group are primarily white,
straight, able-bodied, U.S. citizen non-transgender men43 and the latter group are
primarily poor people of color, also with disproportionate numbers of people who
are trans, queer, immigrant, and disabled.44 In intersection with all of the deep
societal prejudices against these oppressed groups, our society has deeply ingrained
notions that prisoners are violent, dangerous, and animalistic—less than human, in
need of control, objects of fear, and deserving of contempt.45 Staff members are
required as a part of their job to do things to prisoners that they would probably
never imagine doing to another human being in any other context.
While staff in correctional facilities are not by any stretch of the imagination
evil people—most are simply working class people trying to make a living by
taking some of the only jobs available in their communities—they are not immune
to any of these societal prejudices. Combined with the great power they are given
over prisoners and the violence the state forces them to perpetrate against prisoners
to make their living,46 it is reasonable to infer these prejudices make additional
40. The Supreme Court has held that prison staff exercise “excessive physical force” in violation of
the Eighth Amendment when the “force was [not] applied in a good-faith effort to maintain or restore
discipline” but “maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992).
41. See Kate Randall, Inside the U.S. Prison System—Frame-ups, Brutality, and Murder, July 22,
1999, http://www.wsws.org/articles/1999/jul1999/pris-j22.shtml (discussing examples of horrific
treatment of prisoners in the U.S. prison system); Dan Pens, Mysterious New Syndrome Discovered!, in
THE CELLING OF AMERICA, supra note 29, at 173; AMNESTY INTERNATIONAL, “NOT PART OF MY
SENTENCE:” VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY, (1999), available at
http://www.amnestyusa.org/document.php?id=D0F5C2222D1AABEA8025690000692FC4&lang=e
(discussing various human rights violations against women that take place in U.S. prisons such as sexual
abuse).
42. The infamous Stanford Prison Experiment demonstrated that ordinary college students, when
assigned the role of guard for eight hours a day, engaged in cruel and dehumanizing practices against
their peers. Craig Haney et al., Interpersonal Dynamics in a Simulated Prison, 1 INT’L J. CRIMINOLOGY
& PENOLOGY 69-97 (1973), available at http://www.prisonexp.org/pdf/ijcp1973.pdf. See also Ted
Conover, Guarding Sing Sing, NEW YORKER, Apr. 3, 2000, at 55 (discussing the relationship in prison
between guards and prisoners).
43. Melvina Sumter, The Correctional Work Force Faces Challenges in the 21st Century, 2008
http://www.aca.org/research/pdf/ResearchNotes_Aug08.pdf (“The data from the ACA work force study
indicate that the typical correctional employee is a white, non-Hispanic, moderately educated male who
is in his mid-30s.”).
44. Id.
45. One study on use of force among detention officers found that officers had more readiness to
use force against people in detention if they had higher levels of alienation, fear of victimization, or role
ambiguity. GRIFFIN, supra note 38, at 69.
46. See id. at 69-70 (discussing an officer’s readiness to use force against those imprisoned).

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violence and abuses nearly certain. Retaliation against prisoners who complain
about this violence and abuse also becomes likely.47
D. Systemic Factors Contribute to Violence Among Prisoners
Finally, prisoner-on-prisoner violence is also common. While perhaps not
inevitable, this violence is certainly not surprising. Prisoners are a highly diverse
group and are no more immune to societal prejudices or skilled at avoiding
violence than prison staff or the general public. Additionally, prisoners have
extreme pressures placed on them that can make violence more likely. Prisoners
are taken away from their homes, families, communities, and support systems by
force. They are degraded, treated in many ways like dangerous animals, and often
packed in tightly with many other prisoners.48 All prisoners have survived at least
the state’s violence of incarceration, and many have experienced a great deal of
other forms of violence as well.49 Many prisoners are justifiably angry and have
little if anything in terms of positive outlets for their anger or ways available to
cope with it—other prisoners are a safer target than staff for releasing these
feelings. Many imprisoned people are also afraid of the violence in detention and
ironically are therefore more likely to engage in it themselves, often in an attempt
to forestall being seen as a victim.50
Additionally, staff often condone, actively encourage, and/or arrange prisoneron-prisoner violence. At times members of the staff use racism as a way to
provoke violence. As an imprisoned black man describes:
Usually racism is the best tool of the prison officials to control
volatile prison populations. The warden and his guards intentionally
keep up racial hostilities through rumors and provocation, and give a
free hand within the prison to groups like the KKK and the Aryan
Brotherhood to maim or kill Black prisoners. They use the racist
white prisoners to confine both themselves and others, in return for
47. Dan Pens & Paul Wright, Total Power Corrupts: Guard Racism and Brutality, in THE CELLING
AMERICA, supra note 29, at 173; Gabriel Arkles, Testimony Before National Prison Rape
Elimination Commission (Aug 15. 2005), available at http://www.srlp.org/files/documents/
NPREC_testimony_Arkles.pdf (discussing retaliation by prison officials against inmates for speaking up
about abuse); Tom Watson, Prison Appeal System – Part 1: Fear of Retaliation Discourages Prisoners
from Filing Appeals and Other Problems, http://www.geocities.com/three_strikes_legal/
fear_of_retaliation.htm (last visited Apr. 4, 2009).
48. JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, CONFRONTING CONFINEMENT: A REPORT
OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 12 (2006), available at
http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf (recommending an end to
overcrowding as top priority for reducing violence in prisons); see also Craig Haney, Prison
Overcrowding:
Harmful
Consequences
and
Dysfunctional
Reactions,
at
2-7,
http://www.prisoncommission.org/statements/haney_craig.pdf (last visited Apr. 4, 2009) (discussing the
detrimental impact of overcrowding in prisons and the damaging effects of imprisonment).
49. See Women in Prison Project, supra note 1, at 1 (discussing facts regarding those who have
survived abuse prior to entering prison such as the number of women who experienced raped prior to
being convicted and incarcerated).
50. Julie Kunselman et al., Nonconsensual Sexual Behavior, in PRISON SEX: PRACTICE AND POLICY
36-39 (Christopher Hensley ed., 2002).
OF

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special privileges and the fleeting feeling that they are “helping” the
“white race” maintain control. . . . The officials can usually count on
recruiting a steady supply of racist murderers and henchmen from
the white prison population. . . . [The warden] even had a group of
white inmates who acted as his “hit men” against whites who refused
to conform to the racist line.51

Staff also often encourage gender-based violence. For example, one transgender
woman client I worked with was “sold” by correctional officers as a forced
prostitute with whom male prisoners could have sex. Another was stabbed by
another prisoner in a shower, while a correctional officer looked on and smiled.
Violence can beget violence, as one act of violence can prompt other acts of
violence intended to retaliate against and punish perpetrators and/or to defend
someone or to send a message intended to forestall further violence, leading to
cycles of escalating violence that in many ways mirror state responses to violence.
For example, a transgender woman I worked with named Margaret was
incarcerated in a male facility in Oklahoma when she was seventeen years old. She
taught a pottery class for the men sentenced to life in prison. These men liked
Margaret and thought of her as a little sister. When a newly admitted prisoner
attacked, slashed, and forcibly raped Margaret, they were enraged that someone
would hurt her so horribly and responded by arranging to have her attacker stabbed.
He died following the retaliatory attack.
This combination of overall societal oppressive dynamics and the extreme
pressures of detention can cause many imprisoned people to behave in violent ways
even though they are not intrinsically especially violent people.
E. Dynamics of Gender-Based Violence Against Trans People in Detention
Transgender people often suffer extraordinary violence in detention, even
compared to other prisoners. Transgender people are disproportionately exposed to
the inherent violence of detention for multiple reasons. Loss of family support and
severe and pervasive discrimination in every aspect of life, such as housing, health
care, education, employment, identification, and public benefits, leads to
widespread poverty and homelessness among transgender people.52 Because
poverty and homelessness are themselves criminalized in many ways,53 transgender
51. Lorenzo Kom’boa Ervin, Back from Hell: Black Power and Treason to Whiteness Behind
Prison Walls, in RACE TREASON BEHIND PRISON WALLS 3-4, available at
http://www.zinelibrary.info/files/racetreasonbehindprisonwalls.pdf (last visited Apr. 4, 2009). Cf. Abdul
Olugbala Shakur, The Pelican Bay Factor, in THE CELLING OF AMERICA, supra note 29, at 189
(discussing prison officials’ control over prisoners and encouragement of racist views among prisoners).
52. SYLVIA RIVERA LAW PROJECT, supra note 1, at 11; see Tarzwell, supra note 8, at 171
(discussing the problems faced by transgender youth such as being turned away by their families, facing
shame from their communities, being expelled from school because of their gender transgressions, and
harassment at school).
53. See, e.g., THE NAT’L COALITION FOR THE HOMELESS & THE NAT’L LAW CTR. ON
HOMELESSNESS & POVERTY, A DREAM DENIED: CRIMINALIZATION OF HOMELESSNESS IN U.S. CITIES 89 (2006), available at http://www.nationalhomeless.org/publications/crimreport/report.pdf (noting that
over the last twenty-five years a trend has developed to “target homeless persons by making it illegal to

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people are more likely to come into contact with the criminal legal system because
of this disproportionate poverty.54 In addition, police profiling of transgender and
gender nonconforming people is very common.55 Transgender women of color are
frequently presumed to be engaging in sex work, irrespective of any basis in fact
for these presumptions.56 Transgender and gender nonconforming people are also
often perceived to be violent and deceptive.57 Many transgender and gender
nonconforming victims of domestic violence or hate violence are arrested instead
of their attackers.58 Some transgender people are charged with crimes simply for
using the restroom.59 In addition, transgender people are more likely to be subject
to immigration detention because of barriers to obtaining legal status in the U.S.
that have a disproportionate impact on transgender people.60
Once incarcerated, transgender people are often targeted for violence by both
facility staff and other people in detention. Gender motivated violence is a reality
both inside and outside of detention. Profound cultural norms and systems of
oppression serve to create expectations that non-trans men have a “right” to access
bodies perceived as female and/or feminine, that sexual and other physical
aggression is “natural” and therefore appropriate for non-trans men, that women
have the burden of protecting their own safety or finding a man to protect them if
they do not wish to submit to male violence and/or sexual desire, and that trans and
gender nonconforming people ought not to exist at all and deserve to be punished
for their violations of gender roles and norms.61 Rape, beatings, and murders of
women, including trans women, and of trans people other than women, are
extraordinarily common outside of the context of detention and continue, often

perform life sustaining activities in public” such as sleeping and eating).
54. See SYLVIA RIVERA LAW PROJECT, supra note 1, at 11-16 (noting that due to pervasive
discrimination and targeting, transgender people are disproportionately poor and homeless). For
example, due to discrimination throughout society, some transgender people engage in sex work because
they are unable to find employment elsewhere. Id. at 11. Transgender people are targeted for abuse by
family members and often do not maintain the same familial support system as non transgender people.
Id. at 11-12. Transgender youth are often harassed at school and forced to drop out without obtaining an
adequate education. Id. at 12.
55. Id. at 15.
56. AMNESTY INTERNATIONAL, STONEWALLED, supra note 26, at 12, 15.
57. Id. at 85.
58. See, e.g., Henry, supra note 26, at 1-7 (discussing the example of four women being sentenced
to prison for defending themselves against a man who assaulted them for being lesbians); Amnesty
International, Help Stop Abuse of Transgender Women by NYC Police Officers,
http://www.amnestyusa.org/lgbt-human-rights/stonewalled/help-stop-abuse-of-transgender-women-bynyc-police-officers/page.do?id=1106632 (discussing the stories of two transgender women arrested by
New York City police officers who committed “serious human rights violations” against both women)
(last visited Apr. 4, 2009).
59. AMNESTY INTERNATIONAL, STONEWALLED, supra note 26, at 20.
60. Pooja Gehi, Struggles from the Margins: Anti-Immigrant Legislation and the Impact on LowIncome, Transgender People of Color, RUTGERS WOMEN’S RTS. L. REP. (publication forthcoming).
61. See generally STOP PRISONER RAPE & ACLU NATIONAL PRISON PROJECT, STILL IN DANGER:
THE ONGOING THREAT OF SEXUAL VIOLENCE AGAINST TRANSGENDER PRISONERS 5 (2005), available
at http://www.justdetention.org/pdf/stillindanger.pdf (discussing sexual violence faced by those
transgender prisoners who do not enter protective relationships) [hereinafter STILL IN DANGER].

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even more intensely, against the already dehumanized trans and/or female bodies
trapped within it.62
In terms of staff violence, one common pattern is abusive searches of TIGNC
people, such as repeated, unjustified strip searches for the purpose of satisfying
curiosity about the person’s body, humiliating the person, or the sexual arousal of
the guard.63 Other forms of abusive searches include groping and sexual assault
during frisks and strip searches done in highly public settings.64 Rape, severe
beatings, threats, and sexual assault by guards of TIGNC prisoners are also
common, as well as intense retaliation should the person report any of this abuse.65
Verbal harassment, humiliation, and denial of basic necessities, such as food or
showers, are other common forms of violence.66 Violence from other prisoners can
take some similar forms, including rape, beatings, stabbings, threats, and sexual
assault.67 Intimate partner violence and rape can occur in the form of “protective
pairings,” where one person “owns” the transgender person and gives her
“protection” from violence in exchange for sexual and other services.68
III. DETENTION AS A SITE OF SOLIDARITY, RESISTANCE, LOVE, AND MUTUAL
SUPPORT
The violence described above does not tell the full story. Prisoners also form
communities, families, and networks of resistance in solidarity with one another.
At times people in detention are able to intervene and protect one another from
violence perpetrated by other people in detention or directly by the state. Below is
an example of each of these two types of intervention, one that I learned of from
one of my clients, another that I learned of from other advocates and the media.
I asked Khadija, a Black transgender woman who was my client, about
whether she had been sexually assaulted by other people in detention. She said
there was just one time, when a man who propositioned her refused to take no for
an answer and started grabbing her to force her to do what he wanted. The other

62. See, e.g., INCITE! WOMEN OF COLOR AGAINST VIOLENCE, POLICE BRUTALITY AGAINST
WOMEN OF COLOR & TRANS PEOPLE OF COLOR: A CRITICAL INTERSECTION OF GENDER VIOLENCE &
STATE VIOLENCE, available at http://www.incite-national.org/media/docs/5341_pv-brochuredownload.pdf (discussing police brutality against women of color and trans people of color in various
situations) (last visited Apr. 4, 2009); INSTEAD OF PRISONS, supra note 29, at 31 (discussing the extreme
levels of abuse that take place in prisons); STILL IN DANGER, supra note 61, at 1-6 (discussing Farmer v.
Brennan, the resulting legislation, and the rape of transgender prisoners); STOP PRISONER RAPE, THE
SEXUAL ABUSE OF FEMALE INMATES IN OHIO (2003), available at http://www.justdetention.org/
pdf/sexabuseohio.pdf (discussing sexual abuse in an Ohio women’s correctional facility).
63. Arkles, supra note 47 (discussing unnecessary strip searches); Tarzwell, supra note 8, at 180
(discussing demeaning acts performed by prison staff, including humiliating “gender checks,” sexual
assault, and rape); AMNESTY INTERNATIONAL, STONEWALLED, supra note 26, at 54 (discussing strip
searches which involve inappropriate touching of an individual’s genitalia).
64. AMNESTY INTERNATIONAL, STONEWALLED, supra note 26, at 54, 60.
65. Arkles, supra note 47.
66. AMNESTY INTERNATIONAL, STONEWALLED, supra note 26, at 39, 64.
67. Id. at 60.
68. Interview with Laura Stemple, J.D., Executive Director of Stop Prisoner Rape, 7 RES. &
ADVOC. DIG. 3 (2005); SYLVIA RIVERA LAW PROJECT, supra note 1, at 25.

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men in the area intervened, pulling the man off of her and telling him to leave her
alone. Neither he nor any other prisoner ever tried to sexually assault her again
during her time in prison.
Victoria Arrellano was a 23-year-old transgender woman originally from
Mexico who was placed in a male facility in immigration detention.69 She was HIV
positive and was taking antibiotics prior to her detention to prevent pulmonary
infections from developing into treatment-resistant pneumonia.70 The staff at the
detention facility refused to give Victoria these medications, despite repeated
requests.71 She grew gravely ill, such that she screamed in pain any time anyone
moved her, vomited blood, and experienced diarrhea, fever, and other symptoms.72
The men who were detained with Victoria cared for her, administering cold
compresses to bring down her fever, cleaning up her blood and vomit, and helping
her get to the bathroom.73 They made requests for the infirmary to treat her. They
created a petition for her demanding medical care, which seventy of them signed.74
Finally, eighty of them organized and refused to line up for count, chanting,
“Hospital,” again and again until at last the facility complied and removed Victoria
to the hospital.75 That was an act of extraordinary bravery. Organized acts of
resistance such as this one are often punished with extreme brutality in detention
facilities.76
Unfortunately, while Victoria was eventually taken to the hospital,
immigration detention and the facility staff had nonetheless succeeded in
murdering her. By the time she got treatment, it was too late for the treatment to
work. “She died shackled to her bed in the ICU.”77 The bravery and compassion of
the men detained with Victoria, however, gave her whatever care, comfort, or hope
she had in her last days. The outcry, media attention, and congressional hearing

69. Answers Sought in Trans Detainee’s Death, THE ADVOCATE, (Aug. 23, 2007), available at
http://www.advocate.com/news_detail_ektid48369.asp.
70. Letter from African American Hispanic Health Education Resource Center et al. to Julie L.
Myers, Assistant Secretary, U.S. Immigration and Customs Enforcement
(Sept. 11, 2007),
http://www.aidsinfonyc.org/tag/activism/arellanoltr.html (protesting the death of Victoria Arellano while
in detention) [hereinafter Letter to Julie L. Myers].
71. Id.
72. Id.
73. Leslie Feinberg, Death of Trans Immigrant in Detention Forges United Protests, WORKERS
WORLD, Sep. 13, 2007, at 5, available at http://www.workers.org/pdf/2007/ww091307.pdf.
74. Letter to Julie L. Meyers, supra note 70.
75. Feinberg, supra note 73, at 5.
76. See, e.g., Adrian Lomax, Varied Forms of Rebellion and Resistance, in THE CELLING OF
AMERICA, supra note 29, at 226 (stating that “[n]onviolent protests by prisoners are not often heard of
because prison administrators ruthlessly oppress prisoners who organize such actions”) [hereinafter
Lomax, Varied Forms of Rebellion]; Daniel Burton-Rose, Queering the Underground: An Interview
with George Jackson Brigade Veterans Rita “Bo” Brown and Ed Mead, in THAT’S REVOLTING: QUEER
STRATEGIES FOR RESISTING ASSIMILATION 19, 23 (Mattilda Bernstein Sycamore, ed., 2008) (“That
rebellion was forcibly repressed, and the leaders were placed in segregation. While in the segregation
unit they were brutalized. The type of brutalization was similar to that which occurred several years
later, when guards used lead-lined gloves to beat prisoners, when they pulled one prisoner out of his cell
and shoved a riot baton up his ass, creating a 5/8” tear.”).
77. Letter to Julie L. Meyers, supra note 70.

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that have followed her death, moreover, may not have come to pass without the
testimony of the men who were her advocates.
These two examples of anti-violent interactions challenge assumptions about
possibilities for relationships between transgender women and non-transgender
men in detention. In truth, the relationships among TIGNC and non-TIGNC people
in both men’s and women’s detention facilities are incredibly diverse.
Transgender people and non-transgender people often have friendships,
consensual romantic and sexual relationships, familial relationships (chosen as well
as biological), and political alliances with one another behind prison walls. All of
these types of relationships can be tremendous sources of support, solace, and
survival skills.78 Transgender people often share information with one another
about what different facilities and staff members are like, as well as tips for how to
do their time and come out alive. Non-transgender people also share this
information and at times aid in these networks of support. New friendships and
romances are often formed in prisons and sometimes people are incarcerated with
their friends or lovers from before.79 Trans and non-trans people often become
friends or lovers in prison as well as out of prison.80 Any of these relationships
may last years, beyond the time when the people are incarcerated, even a lifetime.81
On the other end of the spectrum though, even the briefest and most purely sexual
of encounters, when mutually desired and enjoyed, can still be a profoundly
humanizing escape from the degradation of incarceration.82
Due to the targeting of particular communities of color for policing, it is not
uncommon for people to have siblings, parents, cousins, uncles, or aunts who are
also incarcerated in the same system.83 One of my clients had a brother who was
locked up in the same facility as she; they looked out for one another. Another had
an uncle who was being held in a different facility, until he died following a
beating by guards.
There is a long history of people in prison joining together to resist the
violence of the state and its agents through organized non-violent collective action

78. See TALVI, supra note 4, at 200 (noting that women prisoners have these relationships “in order
to survive the emotional and physical stressors of incarceration”).
79. Id. at 200, 202 (noting that “[f]emale prisons tend to be environments in which women build
relationships of various kinds in order to survive the emotional and physical stressors of incarceration”
and providing an example of a prisoner living in the same cell as her girlfriend for six months).
80. See id. (giving an example of a heterosexual woman in a long-term marriage who fell in love
with a woman prisoner).
81. Id. at 201.
82. See Brenda Smith, Rethinking Prison Sex: Self-Expression and Safety, 15 COLUM. J. GENDER &
L. 185, 233 (2006) (noting that “[f]or many prisoners sexual expression is a corollary of freedom”)
[hereinafter Smith, Rethinking Prison Sex]. See also Neil Edgar, Inside the Box, in THAT’S REVOLTING!
QUEER STRATEGIES FOR RESISTING ASSIMILATION 139 (Mattilda aka Matt Bernstein Sycamore ed.,
2004) (“Sex is like drinking down an ocean of cloudless Montana sky, soaring, expansive, ever
onward.”).
83. In 2003, there were thirty-five blocks in the poorest areas in Brooklyn where so many residents
were incarcerated that the cost of their incarceration exceeded $1,000,000—a phenomenon referred to as
“million dollar blocks.” Jennifer Gonnerman, Million-Dollar Blocks, VILLAGE VOICE, Nov. 9, 2004,
available at http://www.villagevoice.com/2004-11-09/news/million-dollar-blocks/1.

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as well as through direct confrontation and uprising often at great personal risk.84
One trans woman client of mine filed a grievance against a guard who verbally
abused her, calling her a faggot, making degrading sexual remarks about her body
parts, and threatening to kill her. The men incarcerated in the cells to either side of
her chose to testify against the guard, exposing themselves to the risk of retaliation.
In fact, that guard and a friend of his beat one of these men severely a few days
later shouting that this was what he got for being a witness against him. Another
client of mine became a very adept jailhouse lawyer and assisted other transgender
women as well as non-transgender men in her prison to file claims about
mistreatment they were experiencing, particularly when they were denied needed
medical care.
When the Sylvia Rivera Law Project began a Prisoner Advisory Committee,85
we initially envisaged it as only open to currently incarcerated TIGNC people.
However, as soon as we sent out invitations, a transgender woman invited a
straight, non-transgender, non-intersex male friend of hers to join. When we wrote
to the group to ask what they thought of the idea of having prisoners who were not
transgender, intersex, or gender nonconforming join, I was struck by the strong
response in favor of the idea. Nearly everyone wrote explaining the importance of
having friends and allies who were not trans-identified in their lives, in the
movement, and in political work on behalf of trans people in prison. I remember
one Black transgender woman powerfully writing to tell us that all people in prison
were a community to one another in a way, that many of the problems trans people
in prison face are faced by all people in prison, and that liberation for trans people
in prison could not be achieved without including people from this larger prison
community as well. We changed our original vision for the Prisoner Advisory
Committee and began welcoming imprisoned non-TIGNC allies to join.
The divisions between these groups (transgender and non-transgender) are not
even particularly sharp; any binary in terms of gender at some point will prove
false. Many people who do not fit gender norms do not identify as “transgender.”
Some people are not certain of their gender identity or have a gender identity that
changes over time. Some people consciously change their gender expression,
either in a more or less gender conforming way, when they enter prison as they
adapt to a very different cultural space and social structure.86 One of the powerful

84. Ervin, supra note 51, 3-4 (discussing race-based violence in prisons); TALVI, supra note 4, at
129 (“Former VSPW SHU prisoner Christina Francis explained to me that she joined in many unit-wide
protests (banging on doors, screaming, and throwing food trays through food slots are usually the extent
of those strategies) to try to help the ‘5150s,’ as the mentally ill are referred to in police code. These
reasons for these protests included situations where women who had defecated all over their cells were
being forcefully extracted from their cells.”); Burton-Rose, Queering the Underground, supra note 76,
at 21 (“[W]here it really came to fruition was at the Washington State Penitentiary at Walla Walla in the
development of Men Against Sexism, which confronted prisoner-on-prisoner rape, the bullying and
selling of prisoners by other prisoners.”).
85. The Prisoner Advisory Committee is a group of currently imprisoned volunteers who join in the
Sylvia Rivera Law Project’s work through giving us input on our priorities, helping us develop model
policies and public education materials related to trans imprisonment issues, and producing a newsletter.
86. Several of my clients have chosen to try to pass as non-trans people who meet gender norms in
order to avoid violence while in prison. Others, though, explore other gender expressions while in

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transforming possibilities for relationships between trans and “non-trans” people in
prison come to pass when people for the first time meet and speak with people
whom they know to be transgender and find words and community that fit with
their own experiences, leading them to realize that they are also transgender. I have
met both trans men and trans women who were first able to come out because of
conversations and support from other people in detention.
For all of these reasons, any concept that the only interactions possible
between transgender and non-transgender prisoners are necessarily violent does
disservice to the diversity and humanity of the people behind bars and plays into
racist stereotypes. None of this, of course, is meant to imply that prisons are
sometimes “safe”—they never are—or to downplay the very serious risks of
violence from other people in prison that transgender people, particularly
transgender women in men’s facilities, experience. It is intended, however, to
suggest that without taking into account the role that community, positive
relationships, and solidarity among prisoners can play in decreasing violence and
increasing safety, the legal system and advocates can create policies and practices
that inadvertently further violence often at the precise moments when we are
seeking to prevent it.
IV. RESTRICTIONS ON COMMUNITY BUILDING
The main things that the [prison administration] does is that they try
to break down any kind of supportive relationship. It doesn’t matter
whether it’s sisterly or sexual.
—Linda Evans, imprisoned lesbian activist87
Nonviolent protests by prisoners are not often heard of because
prison administrators ruthlessly oppress prisoners who organize
such actions . . . . Prison officials will inevitably become aware of
the organizing, and when they do, they immediately lockdown the
prison and conduct an investigation. Any prisoners who can be
identified as organizers will be sentenced to long terms in
segregation and transferred, usually to prisons in the federal system
or in other states. Prison officials simply do not tolerate prisoners
who organize nonviolent protests.
—Adrian Lomax88

Far from encouraging these types of interactions, correctional systems and
officials often actively seek to prevent and punish positive relationship-building,
communications, consensual affectionate contact, formation of networks of

prison for a variety of reasons. See, e.g., Edgar, supra note 82, at 139 (stating that someone who had
been a queen in prison shaved off his braids and started growing stubble before he headed back to the
“real world” where he was a “normal” Black man with a wife and kids).
87. TALVI, supra note 4, at 204.
88. Lomax, Varied Forms of Rebellion, supra note 76, at 226.

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solidarity, and non-violent collective action among people in detention, thereby
undermining the ability of people in prison to create meaningful safety and resist
state-perpetrated violence. Overall, the courts have failed to set adequate limits to
correctional systems’ ability to restrain positive interactions among prisoners and at
times actively endorse those efforts, further endangering all people in detention and
particularly TIGNC people in detention.89
In Turner v. Safley,90 the Supreme Court established that a different, lesser
form of scrutiny applies to First Amendment claims when people in prison make
them.91 In this case, the Court held that infringements on the constitutional rights
of prisoners are permissible whenever they are “reasonably related to legitimate
penological interests.”92 The four factors the Court identified for making this
determination are whether there is a valid rational connection between the prison
regulation and legitimate penological purpose; whether there are alternative means
available to the prisoner to exercise his or her constitutional rights; how
accommodating the right would impact prison staff, other people in prison, and
prison costs; and whether there are any obvious, easy alternatives to satisfying the
penological objective without sacrificing the constitutional rights of the prisoner.93
Applying this test, the court upheld a prison regulation prohibiting
correspondence between people in prison.94 The court accepted the justification the
defendants proffered—that correspondence between prisoners could be used to
arrange assaults, escapes, and gang-related activity.95 The Court also found that no
easy alternative existed, since monitoring of correspondence would be unduly
burdensome and subject to error.96 The Court did invalidate a regulation that
prohibited prisoners marrying unless the superintendent gave them permission
based on compelling reasons for doing so.97 While the Court clearly stated that
restrictions on prisoners’ right to marry may be justified, it held that in this case the
regulation swept too broadly given the stated objectives of the regulation.98
Prohibitions on correspondence between prisoners can have a particularly
severe impact on TIGNC people in prison who may be isolated and who may have
few allies in their facility even if they are in general population. Many TIGNC
people in prison write to us seeking any way to correspond with people in other
facilities. Some want to be able to write friends they left behind in another facility;
some are heartbroken when transferred away from a lover and are cut off from any
form of contact with them; and many, especially those who are being held in some
form of segregation or who are in a facility with few or no other TIGNC people,

89. See, e.g., Turner v. Safley, 482 U.S. 78, 81-82 (1987) (restricting correspondence between
prison inmates).
90. 482 U.S. 78.
91. Id. at 81.
92. Id. at 89.
93. Id. at 89-90.
94. Id. at 91-93.
95. Id. at 91.
96. Turner, 482 U.S. at 93.
97. Id. at 97.
98. Id.

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seek to communicate with other imprisoned TIGNC people for mutual support and
opportunities to share strategies for survival.
The Court has also been hostile to prisoners’ claims to a right to organize with
one another even when that organizing promotes safety. In Jones v. North
Carolina Prisoners’ Labor Union, Inc.,99 the Supreme Court upheld North
Carolina’s rules prohibiting a union of prisoner workers from soliciting additional
members, sending bulk mailings, or holding any meetings of its members.100
The facts in this case were undisputed. A multi-racial, democratically-lead
association of thousands of prisoners in the custody of North Carolina had been
organizing for several months, setting out:
[T]o secure meaningful rehabilitation programs, to defend human
and civil rights of prisoners, to arrange for community based support
groups to appear before legislative bodies in the interests of prison
reform, to educate the public through the publication of a union
newspaper and through news releases, to retain attorneys for the
protection of prisoners’ legal rights, and for the advancement of
prisoners’ economic, political, social, and cultural interests.101

As stated in the Appellee’s brief:
In spite of appellants’ vigorous efforts to suppress the Union, the
evidence is uncontradicted that the Union had attained a measure of
racial unity at North Carolina’s large Central Prison; that personal
responsibility of the membership had been enhanced by their
participation in the democratic processes of the organization; and
that the Union helped to build self-reliance among inmates by
discussing problems of economic and racial tension, lack of
education, lack of employment opportunities and by attempting to
find peaceful and crime free alternatives to these problems.102

Prison officials claimed, without evidence, that at some point in the future the
Union could become divisive and dangerous.103 One explained that:
After the inmate Union has become established, there would
probably be nothing this Department could do to terminate its
existence, even if its activities became overtly subversive to the
functioning of the Department. Work stoppages and mutinies are
easily foreseeable. Riots and chaos would almost inevitably result.
Thus, even if the purposes of the union are as stated in the

99. 433 U.S. 119 (1977).
100. Id. at 119.
101. Brief of Appellee, Jones, 433 U.S. 119 (No. 75-1874), 1976 WL 181714, at *9 (quoting Articles
of Incorporation of the Union).
102. Id. at *7-8.
103. Jones, 433 U.S. at 127.

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Complaint, the potential for a dangerous situation exists, a situation
which would not be brought under control.104

Confronted with these facts and with the Union’s claims for violations of it
and its members’ First Amendment and Equal Protection rights, the Supreme Court
ruled against the Union, chiding the lower court for failing to give sufficient
deference to prison officials.105 The Court minimized the rights of the Union and
its members stating that “First Amendment speech rights [were] barely implicated
in [the] case” and holding that the associational rights of the prisoners were
necessarily constrained given their status as prisoners.106
It is notable that not only did all of the undisputed evidence show that in fact
the association was actually decreasing violence rather than fomenting violence,107
but that most of the fears claimed by the prison officials were not actually related to
violence either.108 In fact, most of the prison officials’ fears were concerns about
effective non-violent collective action for making changes in the operation of the
facility. The Court was willing to sacrifice not only the First Amendment rights of
the prisoners but also their safety in order to defer to the prison officials’ concerns
about losing the ability to effectively control and coerce forced labor from the
prisoners without any ability of the prisoners to advocate effectively for their
rights.109
I have heard from several trans people across the country who wanted to begin
support or educational groups on gay/lesbian, bisexual, and transgender issues.
They believed that these groups would go a long way toward not only allowing the
trans, gay, and bi prisoners an opportunity to support one another and build selfesteem, but also toward educating their straight non-trans peers and decreasing the
transphobia and homophobia in the facilities. In all cases, their facilities denied
them permission to start such groups. Courts have consistently held that prisoners
have no right to participate in any particular prison programs or indeed to any
program at all.110
Another type of restriction with particular relevance to trans and queer
prisoners is the prohibition on “homosexual contact” in force in jurisdictions across
the United States.111 In many jurisdictions it is not only prohibited to have sex with

104. Brief of Appellants, Jones, 433 U.S. 119 (No. 75-1874), 1977 WL 189838, at *15 (citing the
testimony of Appellant David Jones, Secretary of the Department of Corrections).
105. Jones, 433 U.S. at 125-26.
106. Id. at 130.
107. See Brief of Appellee, supra note 101, at *97-98 (stating that “the Union had attained a measure
of racial unity” and the Union attempts to find peaceful solution in its discussion of multiple problems).
108. See Jones, 433 U.S. at 127 (noting that prisoner organizers could misuse their power and seeing
work stoppage as a possibility).
109. See id. at 130 (The Jones court threw out the First Amendment and all other claims, reasoning
that the prison guards’ opinions regarding the need to keep order in the prison outweighed the needs or
rights of the prisoners.).
110. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1254 (9th Cir. 1982) (making it clear that the rights
of prisoners to join in groups and activities are far outweighed by the need for safety and security in the
prison environment).
111. Smith, Rethinking Prison Sex, supra note 82, at 193.

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other people in prison, but also to have any other form of affectionate physical
contact.112 For example, in New York, it is prohibited to kiss, hug, or hold hands
with another person in prison.113 While of course it is not only or mainly trans
prisoners who have sex with other people in prison, trans people are most likely to
be perceived to be having sex (whether or not they are) and to be punished for it
harshly.114
These prohibitions have been widely held or presumed to be constitutionally
permissible. In one case, the Fourth Circuit rejected an Equal Protection claim by a
gay male prisoner who was kept in a single cell rather than a double cell because of
his gender and sexual orientation.115 The court found, inter alia, “[t]here also is no
fundamental right to engage in homosexual acts generally, and even if a right to
engage in homosexual acts existed, it would not survive incarceration.”116 Indeed,
courts have approved complete restrictions on prisoners having sex even with their
own spouses in heterosexual marriages117 and have been singularly unsympathetic
to claims by prisoners relating to sexual expression, even straight non-trans male
sexuality.118
However, they often reserve particular venom when rejecting claims of those
who are or who are perceived to be gay or trans. In one indicative case, Dooley v.
Quick,119 the District Court of Rhode Island rejected two gay male prisoners’ claims
that their constitutional rights were denied when they were punished for sending
each other notes, for signing to each other between their cells, and for speaking
about their pending law suit in a “prohibited” area.120 As the court stated, “[p]rison

112. TALVI, supra note 4, at 196.
113. N.Y. COMP. CODES R. & REGS. tit. 7, § 270.2(B)(2)(iv) (2009).
114. TALVI, supra note 4, at 204.
115. Veney v. Wyche, 293 F.3d 726, 726-27 (4th Cir. 2002).
116. Id. at 732 n.4 (citation omitted).
117. See, e.g., Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir. 1994) (finding that prisoners have
no right to conjugal visits because “[r]ights of marital privacy . . . are necessarily and substantially
abridged in the prison setting”).
118. See, e.g., Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 2004) (upholding prohibition on
possession by male prisoners of nude or semi-nude photographs of their girlfriends or wives); Thompson
v. Patteson, 985 F.2d 202, 207 (5th Cir. 1993) (finding refusal to permit prisoner to possess copies of
Penthouse Letters magazine permissible); Frink v. Arnold, 842 F. Supp. 1184, 1192 (S.D. Iowa 1994)
(finding seizure by prison officials of fictional prose with sexual content written by a prisoner
constitutionally permissible).
119. 598 F. Supp. 607 (D.R.I. 1984).
120. Id. at 611, 616-17. The court makes its attitude toward gay people and people in prison apparent
in the paragraph where it proclaims its neutrality:
This case is one which implicates vital concerns: the need of a large, crowded penitentiary
to maintain order and security; the pervasive threat which homosexuality poses in a
custodial environment; and the right of prisoners—even overtly gay prisoners—to enjoy the
benefits of the Constitution consistent with the legitimate constraints inherent in sound
penological management. The ‘high ground of constitutional principle’ is all too easily
beclouded when issues which, even in the abstract, kindle fiery emotions are viewed in the
bright glare of such highly-charged elements as violent crime, hardened criminality, and
unabashed homosexuality. Yet, the Constitution knows no sexual preference; and purely
“subjective judgments are a luxury which the courts cannot indulge.”
Id. at 609 (quoting Marcello v. Regan, 574 F. Supp. 586, 596 (D.R.I. 1983)).

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officials are generally concerned about homosexual contact within any sector of the
prison, considering such incidents to be a grave threat to institutional discipline and
security. These concerns are founded in reason, experience, and common sense.”121
In its opinion the court referenced what it perceived as the “pervasive threat which
homosexuality poses in a custodial environment.”122 While the court did find that
the prison officials’ denial of the men’s ability to meet with one another to discuss
their law suit presented some problems, the court only ordered the agency to
develop regulations on the subject and denied the request for damages.123 The men
had also been refused access to Gay Community News, but because the prison had
since reconsidered and allowed them to have the newspaper, the court dismissed
this claim as moot, again finding that not being permitted to read newspapers for
the gay community did not actually injure the men, and no damages were in
order.124 The court also dismissed all of their other claims.125 It was implicit
throughout the decision that preventing gay men from communicating with one
another in any way that might further a romantic or sexual relationship was a
necessary, legitimate, and desirable goal for prison officials to pursue.
The pervasive, judicially approved condemnation of sex between people in
prison has dire consequences for the safety of trans people in prison. The
prohibitions send the message that queer sexuality, not sexual violence, is the
problem that prison administrators care about eliminating. Not only do they
contribute to the disproportionate discipline and isolation of trans and gender
nonconforming prisoners, but they also create yet another barrier to getting help in
cases of sexual violence.126 For example, after months of horrifying abuse from a
male prisoner who raped, threatened, beat, and made rules for her, my client Regina
gathered the courage to report the abuse to a staff member and ask for help. Instead
of helping her, the staff member charged her with a disciplinary violation under the
sex offense rule, which defines consensual sex and rape as the same offense,
stating: “An inmate shall not engage in or encourage, solicit or attempt to force
another to engage in sexual acts.”127 At her hearing, the staff member introduced
feminine clothing that Regina had in her cell as evidence that she had consented to
the sexual contact. She was in fact found guilty and disciplined for having been
raped.
V. SOLITARY CONFINEMENT
These people love the control that protective custody gives them.
They can beat on us, rape us and push us around almost at will.
—Vanity, imprisoned transgender woman128

121.
122.
123.
124.
125.
126.
127.
128.

Id. at 613.
Id. at 609.
Id. at 619.
Dooley, 589 F. Supp. at 623.
Id. at 624.
Tarzwell, supra note 8, at 179.
N.Y. COMP. CODES R. & REGS. tit. 7, § 270.2(B)(2)(i).
Vanity’s Story, 4 GIC TIP J. 4 (2004).

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The most direct way of disrupting positive relationships within detention is
forcibly keeping people isolated from one another. Indeed, solitary confinement is
the punishment for most rules violations, including those described above related to
correspondence, organizing, and consensual sexual or affectionate contact.
Like most people who have never been in detention, I had many erroneous
assumptions before I began working with imprisoned people. For example, I had
assumed that naturally trans people, particularly trans women in men’s facilities,
would prefer the “safety” of protective custody over the dangers of general
population. However, in the course of my work, I have heard from significantly
more TIGNC prisoners who were in some form of segregation against their will
and seeking assistance to get out of it than I have TIGNC prisoners who were in
general population and seeking to be placed in protective custody, although both do
certainly happen. Of those TIGNC prisoners I have worked with in general
population, including trans women in men’s prisons who had been beaten, raped,
and/or stabbed by other prisoners in the past, most (but not all) have not wanted to
be placed in protective custody.129 I had to learn about the nature of protective
custody and other forms of segregation to understand how deeply flawed my
assumptions were.
A. How Isolation Furthers Violence and Abuse
Although others who have commented on placements for transgender
prisoners have pointed out some of the problematic aspects of isolating placements,
they have often posed these problems as a trade-off for increased safety.130 In some
cases that is true; placement in solitary confinement can at times reduce certain
forms of violence from other people in prison or move a prisoner to an area where
an abusive staff member does not work. However, in many cases the opposite is
true; not only are these placements almost always worse than general population in
many other ways, but also they often lead to greater, not lesser, violence.
Placements in protective custody,131 administrative segregation,132 supermax
facilities,133 or punitive segregation134 are usually highly isolating. While systems

129. However, many have wanted some other change to improve their safety, such as a transfer to
different block or unit, a transfer to a facility that was smaller or that had staff they believed were more
trans-friendly, a transfer to a women’s or trans-only facility, access to a private shower, access to a
single cell within general population, or the ability to choose the person with whom they would share a
cell.
130. See, e.g., Rosenblum, supra note 10, at 530 (“Automatic segregation may provide an
improvement in safety, but at a high comfort cost to the transgendered prisoner. Other concerns arise.”).
131. Often included within “administrative segregation,” protective custody refers to the segregation
of imprisoned people in order to protect them from violence within the general population. At times
“protective custody” is distinguished from “involuntary protective custody” based on whether or not the
person has consented to the placement.
132. “The phrase ‘administrative segregation,’ as used by the state authorities here, appears to be
something of a catchall: it may be used to protect the prisoner’s safety, to protect other inmates from a
particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later
classification or transfer.” Hewitt v. Helms, 459 U.S. 460, 468 (1983).
133. Supermax facilities are typically used as a form of administrative segregation, although they

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vary somewhat, people are commonly confined to a tiny cell for twenty-one to
twenty-four hours a day. They often have little or no human contact except for
highly limited (and often unpleasant) interactions with facility staff. Sometimes
even this “contact” is limited to announcements through loudspeakers.135 This
isolation is profoundly psychologically damaging. The catastrophic consequences
of isolation on human beings’ basic mental stability, health, and ability to function
have been well documented.136 As early as 1890, the U.S. Supreme Court
commented on the impact of isolation on prisoners:
A considerable number of the prisoners fell, after even a short
confinement, into a semi-fatuous condition, from which it was next
to impossible to arouse them, and others became violently insane,
others, still, committed suicide, while those who stood the ordeal
better were not generally reformed, and in most cases did not recover
sufficient mental activity to be of any subsequent service to the
community.137

The documented psychological effects of isolation, even for short periods of
time, include intense anxiety, confusion, lethargy, panic, impaired memory,
psychotic behavior, hallucinations and perceptual distortions, difficulty eating,
inability to communicate, hypersensitivity to external stimuli, violent fantasies, and
reduced impulse control.138 This type of segregation itself is a form of
may also be used for other forms of segregation. In 2000, Human Rights Watch described supermax
prisons as follows:
There are currently more than twenty thousand prisoners in the United States, nearly two
percent of the prison population, housed in special super-maximum security facilities or
units. Prisoners in these facilities typically spend their waking and sleeping hours locked in
small, sometimes windowless, cells sealed with solid steel doors. A few times a week they
are let out for showers and solitary exercise in a small, enclosed space. Supermax prisoners
have almost no access to educational or recreational activities or other sources of mental
stimulation and are usually handcuffed, shackled and escorted by two or three correctional
officers every time they leave their cells. Assignment to supermax housing is usually for an
indefinite period that may continue for years. Although supermax facilities are ostensibly
designed to house incorrigibly violent or dangerous inmates, many of the inmates confined
in them do not meet those criteria.
HUMAN RIGHTS WATCH, OUT OF SIGHT: SUPER-MAXIMUM SECURITY CONFINEMENT IN THE UNITED
STATES, at overview (2000), available at http://www.hrw.org/en/reports/2000/02/01/out-sight-supermaximum-security-confinement-us [hereinafter OUT OF SIGHT].
134. Punitive segregation, also known as disciplinary confinement, is a form of segregation imposed
as a consequence for violation of a prison rule.
135. Shaylor, supra note 39, at 402.
136. See, e.g., Tracy Hresko, In the Cellars of the Hollow Men: Use of Solitary Confinement in U.S.
Prisons and Its Implications Under International Laws Against Torture, 18 PACE INT’L L. REV. 1, 3
(2006) (“The devastating psychological and physical consequences of solitary confinement have been
recognized since the mid-1800s.”).
137. In re Medley, 134 U.S. 160, 168 (1889).
138. Hresko, supra note 136, at 3; Alexander Reinert, Eighth Amendment Gaps: Can Conditions of
Confinement Litigation Benefit from Proportionality Theory? 36 FORDHAM URB. L.J. 53, 82 (2009);
Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review
of the Literature, 34 CRIME & JUST. 441, 471 (2006).

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psychological violence and can lead to prisoners violently harming or killing
themselves.139
International law condemns long sentences in solitary
confinement.140 As one transgender advocate and mental health provider stated:
“Many trans people I’ve worked with prefer to be in general population because
finding their place in the prison culture, although it is an exploited and vulnerable
one, is preferable to the isolation of protective custody.”141
Isolation can also increase vulnerability to physical violence. It deprives
people of any support systems, friendships, or opportunities for solidarity that could
help them to avoid and survive violence. Other people in prison who might have
helped talk someone through the aftermath of violence, shared strategies with the
person to avoid future violence, sought help for that person if they were ill or
injured, or intervened if a staff member or other person in prison was violent
toward them, are simply no longer available. If Victoria Arrellano was segregated
from the men with whom she was detained, she would have had no one fighting for
her right to live at all.
It is far less possible to develop networks or communities that can help
someone avoid violence in the future when they are cut off from the people with
whom they might connect. Someone stabbed Alice, one of my clients, from
behind. She did not know who her attacker was. The facility placed her in
protective custody against her will. She thought that she would have been better
off continuing to live in general population, where by talking to people she might
have been able to find out who had attacked her and why. Not having that
information left her in constant fear because she had no idea how to go about trying
to avoid future attacks.
The very purpose of segregation is frequently to disrupt networks of solidarity
and political resistance.142 Jailhouse lawyers and prisoners who speak with the
media are often targeted for solitary confinement.143 One trans woman I worked
with in New York who gave an interview with a magazine about her relationship
with another prisoner was punished with years of intensive isolation. Adrian
Lomax, an imprisoned non-trans man, describes a time when a group of prisoners
tried to organize a mass hunger strike in a medium-security prison in Wisconsin to

139. Shaylor, supra note 39, at 397 (“Research indicates that women are more prone to violent
behavior as a result of confinement in solitary units, but violence against themselves.”); TALVI, supra
note 4, at 140 (Men in solitary confinement “began to mutilate themselves, swallow sharp objects, or
commit suicide.”); The Correctional Ass’n of N.Y., Disciplinary Confinement in New York State
Prisons (Mar. 2004), http://www.correctionalassociation.org/publications/download/pvp/factsheets/
SHU-fact.pdf (noting that between 1998 and 2001, more than half of the suicides in New York State
prisons occurred in disciplinary confinement, although less than seven percent of prisoners were housed
in these units).
140. Reinert, supra note 138, at 82.
141. SYLVIA RIVERA LAW PROJECT, supra note 1, at 19.
142. Shaylor, supra note 39, at 398.
143. Id. at 398-99. Jailhouse lawyers are the single largest group in disciplinary units. Mumia AbuJamal, Campaign of Repression, in THE CELLING OF AMERICA, supra note 29, at 191; see also, Adrian
Lomax, Report from the Hole, in THE CELLING OF AMERICA, supra note 29, at 193 (discussing the
author’s punishment with segregation for writing a newspaper article critical of a prison staff member)
[hereinafter Lomax, Report from the Hole].

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protest terrible conditions. Hunger strikes were permissible under the rules of the
prison. Nonetheless, the organizers were identified, transferred to maximum
security prisons, and sentenced to long terms in segregation.144
Some trans people have reported that they are more likely to be attacked in
protective custody or other forms of segregation because it is easier for abusive
correctional staff to access them alone and out of the sight of other prisoners or
video surveillance.145 Sometimes staff will deliberately place someone in
segregation in order to gain greater access to that person for their own violent
purposes. For example, in a women’s prison in New York, a lesbian femme was
targeted for sexual harassment by a male guard who left pornography on her pillow
and made constant unwanted sexual advances. Her butch partner intervened
effectively by staying near her and speaking up when the guard would proposition
her calling the sexual harassment for what it was. The guard wrote up the femme
on false disciplinary charges in the hopes that she would then be placed in
segregation and that he would be able to access her away from the help of her
partner.
Additionally, the increased surveillance, searches, and lack of privacy in
segregation increase the frequency and level of explicitly state-sanctioned sexual
violations. People in segregation are often required to endure a strip search any
time they enter or leave their cell, even when they have had no contact with other
people and when they are only going a short distance.146 They are even less likely
to have any visual privacy from guards when using the toilet, dressing, or
showering than are people in general population.147
The devastating isolation from other people in prison is not always complete.
However, segregation in these cases still has particular dangers. Cells can be
exceptionally overcrowded. One Alaskan Aleut trans woman, convicted of
murdering a lover who had abused her, spent almost all of her sentence in
segregation.148 She wrote: “There are three people to a cell that is about six feet by
eight feet. The person on the floor (me) has a mattress that is up under the toilet.
We get stepped on, [our] toothpaste is hard and chunky, [we have] no shampoo or
deodorant [or] proper clothing.”149
Protective custody is frequently literally the same as punitive segregation.
Even when it is not, people can be deemed to need protection or to be appropriate
for administrative segregation for a variety of reasons and people in segregation are
rarely separated based on security classification. Therefore, sometimes the people
who are the most vulnerable to violence are housed with those people who have
been most violent in the past and who are most likely to be violent in the future,
again decreasing safety. For example, Traci Greene was placed in protective
custody because of her vulnerability to violence as a transgender woman.150

144.
145.
146.
147.
148.
149.
150.

Lomax, Varied Forms of Rebellion, supra note 76, at 226.
SYLVIA RIVERA LAW PROJECT, supra note 1, at 18.
TALVI, supra note 4, at 65-67.
Id.
Id. at 138.
Id.
Greene v. Bowles, 361 F.3d 290, 292 (6th Cir. 2004).

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Another prisoner who had an extensive history of violence against other prisoners
was also placed in protective custody because he had testified against other
prisoners following a prison riot.151 The latter prisoner beat Traci severely with a
mop handle and fire extinguisher.152 Sophia Brooks was raped by a man placed in
protective custody with her: “I yelled for him to stop, but nobody heard me. He
kept saying, ‘Yeah, you like that, bitch. I knew you wanted it.’ When he was done,
he left, and . . . I cried all night. I was ashamed of feeling so helpless.”153 She
wants acknowledgement of “the problem of placing minimum-custody transsexuals
into locked-down protective management areas with mixed custody levels.”154
Additionally, when people are released from protective custody, they may be
labeled “victims” because they were placed there, which can make them even more
likely to be targeted for violence in the future.155 Segregation can also draw more
attention to transgender people through this separation. One trans woman named
Jessica was held in involuntary protective custody and reported being held in a cell
surrounded by a chicken wire cage and kept from all direct contact with other
prisoners. When people walked by, be they staff or prisoners, they would mock her
and call out names and slurs for her. She felt that she was dehumanized and her
difference exaggerated by this cage that surrounded her and no other prisoner,
building hostility and barriers beyond the physical between her and others in the
prison.
In addition to these immediate consequences of isolation, people who find
themselves in segregation, whether for protection or punishment, also typically find
their rights and “privileges” dramatically restricted. For example, phone calls,
showers, group religious worship, and visitation may all be restricted or
withdrawn.156 As contact and community with other prisoners is nearly or
completely eliminated, contact and community with friends and family members
from outside prison is also narrowed and constrained, which further limits
opportunities for those others to try to help people in detention cope with violence
or to advocate for them with prison officials to try to end it.157 While recreation in
theory remains available, in practice it often is not offered or is only offered in the
middle of the night—and if a prisoner is asleep, she is often said to have “refused”
recreation.158 The physical conditions are often much more harsh and less sanitary

151. Id. at 292-93.
152. Id. at 292.
153. STOP PRISONER RAPE, IN THE SHADOWS: SEXUAL VIOLENCE IN U.S. DETENTION FACILITIES 9
(2006), available at http://www.justdetention.org/pdf/in_the_shadows.pdf [hereinafter IN THE
SHADOWS].
154. Id.
155. See ROBERT W. DUMOND, TESTIMONY REVIEW PANEL ON PRISON RAPE CALIFORNIA STATE
PRISON 5 (2006), available at http://www.ojp.usdoj.gov/reviewpanel/pdfs_nov06/written-dumond.pdf
(noting the increased labeling and stigmatization experienced by victims of sexual assault who enter
protective custody).
156. See Scharff Smith, supra note 138, at 443 (describing conditions at supermax prison facilities).
157. Id.
158. See, e.g., Tates, 2003 WL 23864868, at *5-6 (E.D. Cal. Mar. 11, 2003) (discussing a jail’s
provision of “dayroom” access, which is used for leisure activities, late at night).

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than in general population. One of my clients, an A.G.159 named Terry, was falsely
accused of sexually assaulting another person in her facility. During the
investigation, Terry was held in a small room that was flooded with several inches
of filthy water and that had no toilet. Access to healthcare can also be more
difficult. A trans woman named Janet imprisoned in California reported that her
hormones would be withheld whenever she was placed in administrative
segregation or suicide watch.160
Participation in programs is rarely permitted.161 Programs, while problematic
(exploitative, unsafe, and forced prison labor is an example of a type of
“program”),162 are often extremely important to people in detention for several
reasons. For one, it is one of the only ways to interrupt hours of deadening
boredom with some sort of activity.163 For another, certain programs can help build
skills to increase the chance of success once released.164 For another, while
typically prisoners are only paid pennies an hour for their labor, these programs are
virtually the only way to earn money to use in the commissary to buy such luxuries
as shampoo, toothpaste, cigarettes, or stamps.165 Finally, participation in certain
programs can be mandatory to make parole or an early release date. Even when not
mandatory, successful participation in prison programs is generally regarded as a
very favorable factor in parole decisions. Periods of time in segregation in and of
themselves, particularly when it is punitive segregation, often count against parole
and can also result in loss of good time. In other words, segregation often leads to
longer periods of time spent in prison, extending the violence of detention itself and
the individuals’ exposure to the forms of violence prevalent within the system.
In some ways, the failure of solitary confinement to live up to its purported
safety justifications166 mirrors the failure of incarceration itself. The same logic—
that segregation promotes safety—also undergirds two of the justifications of

159. A.G. is an identity, in terms of gender and sexuality, used primarily by masculine people in
urban lesbian communities of color.
160. Janet Loftin, A Transsexual’s Experience in the California Department of Corrections (CDC), 4
GIC TIP J. at 2.
161. See SYLVIA RIVERA LAW PROJECT, supra note 1, at 18 (noting constraints on access to
vocational and recreational programs for those in protective custody).
162. See Danny Cahill & Paul Wright, Worked to Death, in THE CELLING OF AMERICA, supra note
29, at 112 (describing several exploitative prison labor programs).
163. See Marilyn C. Moses & Cindy J. Smith, Factories Behind Fences: Do Prison ‘Real Work’
Programs Work?, 257 NAT’L INST. JUST. J. 32, 33 (2007), available at http://www.ncjrs.gov/pdffiles1/
nij/jr000257h.pdf (noting one of the benefits of prisoner work programs is that they limit prisoner
“idleness”).
164. Id.
165. See Loving v. Johnson, 455 F.3d 562, 563 (5th Cir. 2006) (holding that prisoners need not
receive minimum wage for their work).
166. Safety is often cited as the reason why solitary confinement is necessary. Scharff Smith, supra
note 138, at 443; Shaylor, supra note 39, at 397. However, it is often no more than a pretext for another,
less humane motivation. See Scharff Smith, supra note 138, at 500 (describing problems of using
solitary confinement as a means of extortion); Shaylor, supra note 39, at 398-99 (quoting a former
warden who explains that supermax facilities are used as a means to “control revolutionary attitudes in
the prison system and in the society at large”).

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incarceration: incapacitation and deterrence.167 The concept of incapacitation is
that removing people from society prevents them from doing further harm to
society. Keeping “criminals” off the streets is touted in political discourse as the
way the government keeps “us” safe.168
Incapacitation also underlies
administrative and punitive segregation.169
The concept of deterrence is that if people are punished by being removed
from their communities and stripped of their liberties, they will be less likely to
commit further crimes when they return to society in the future—the punishment
will have deterred them from future bad behavior (specific deterrence).170
Furthermore, the knowledge that people are punished for crimes will prevent
people from committing crimes in the first place (general deterrence).171 Punitive
segregation also relies on deterrence as a justification.
However, incarceration does not actually promote safety. As described above,
most of the people who are imprisoned are not any more likely to be violent than
most of the people who are not imprisoned.172 Those who are inclined to be violent
who are put in prison are not “incapable” of further violence during their time
there. If that were the truth, the beatings, slashings, stabbings, rapes, and other
forms of assaults that occur among prisoners would not exist. Detention in and of
itself, as explained above, is a form of violence and creates a system that foments
further violence.173 Rates of incarceration do not correspond with changes in rates
of violent crime.174 As our use of incarceration has ballooned, people’s perceptions
of their safety have remained largely unchanged.175 In addition, incarceration has
been used extensively as a means to disrupt social justice oriented organizing
aimed at creating transformative change.176
The process of incarceration does not address any of the actual underlying
reasons why people commit crimes or are violent, such as profound poverty,
inadequate healthcare, or systemic oppression. In fact, because people are often
further traumatized, deeper in poverty, and less connected with their communities

167. One of the primary purposes of punishment in the U.S. criminal legal system is retribution.
Rehabilitation is another goal, together with incapacitation and deterrence. MATTHEW LIPPMAN,
CONTEMPORARY CRIMINAL LAW 59 (2007).
168. See, e.g., Keeping New York Crime Fighting Ahead of the Curve: The Danger of Complacency,
Remarks by Anthony Weiner at Citizens Crime Commission (Aug. 18, 2005),
http://mayor.anthonyweiner.com/speeches/show/12 (discussing a plan to hire more police officers).
169. OUT OF SIGHT, supra note 133, at Overview.
170. BLACK’S LAW DICTIONARY 481 (8th ed. 2004).
171. INSTEAD OF PRISONS, supra note 29, at 44.
172. Id.
173. Id.
174. Shaylor, supra note 39, at 407 (“Despite the imprisonment binge, the rate of violent crime has in
fact remained steady.”).
175. See PRISON POLICY INITIATIVE, PRISON GROWTH DID NOT MAKE US FEEL SAFER 1965-2000,
http://www.prisonpolicy.org/graphs/feelingsafer.html (citing Peter Wagner, THE PRISON INDEX 18
(2003) (showing that between 1965 and 2000 there was a 343% increase in incarceration and a 0%
change in people being afraid to walk in the dark near their homes)).
176. See Lee, Gendered Crime, supra note 10, at 8 (noting that the government responded to political
movements “through counterinsurgency that prioritized policing”); Mitzi Waltz, Policing Activists:
Think Global, Spy Local, in POLICE STATE AMERICA 27 (Tom Burghardt, ed., 2002).

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following periods of incarceration, incarceration can actually lead to greater
likelihood of violence rather than less.177 As a committee of the American Bar
Association declared:
Baldly stated . . . if we, today, turned loose all of the inmates of our
prisons without regard to the length of their sentences, and with
some exceptions, without regard to their previous offenses, we might
reduce the recidivism rate over what it would be if we kept each
prisoner incarcerated until his sentence expired.178

Debates around incarceration as well as solitary confinement within detention
invoke fundamental questions of civil rights and liberties: Does freedom and
community or control and isolation lead to greater safety? Given the utter failure of
incarceration and solitary confinement to deliver on their promise of safety and in
fact the greater violence they have caused, our society would do well to reconsider
our answers to those questions.
B. Disproportionate Isolation of TIGNC Prisoners
Mirroring the larger system of incarceration, the most marginalized and
politically active groups within detention are also the most targeted for the extra
incarceration of isolating segregation.179 TIGNC people are far more likely than
others to be put in isolating placements such as protective custody or punitive
segregation. At times TIGNC people request to be segregated because they believe
it will lead to less violence against them. Given the intense deprivations of
protective custody, one can imagine how dire the circumstances commonly are
leading to such requests.180
Other times, trans people are placed in involuntary protective custody or
administrative segregation against their will, allegedly for their own good. Some
systems have policies that anyone who is a victim of a violent attack is

177. Some studies have found that recidivism increases with longer sentence lengths. LIN SONG,
RECIDIVISM: THE EFFECT OF INCARCERATION AND LENGTH OF TIME SERVED 5-6 (1993), available at
http://www.wsipp.wa.gov/rptfiles/IncarcRecId.pdf; see also Levasseur, supra note 29, at 202 (“Certainly
the prisoners suffer. And much of it not played out in violent prison incidents is internalized in an
organic time capsule. Eventually, they carry the years of abuse and neglect right on through their
release dates. This is when it’s all brought home.”); Alphonse Gerhardstein, Leveraging Maximum
Reform While Enforcing Minimum Standards, 36 FORDHAM URB. L. J. 9, 13 (2009) (“Incarcerating low
risk offenders has been shown to increase the risk of recidivism for that group.”).
178. INSTEAD OF PRISONS, supra note 29, at 39 (quoting an American Bar Association committee).
179. See Shaylor, supra note 39, at 398-99 (noting that certain categories of prisoners were found to
be disproportionally placed in solitary confinement, including blacks, gays and lesbians, and political
prisoners); TALVI, supra note 4, at 137 (stating that about one-fourth of prisoners in control units are
mentally ill); Abu-Jamal, supra note 143, at 191 (noting that jailhouse lawyers, blacks, people with
psychiatric disabilities, gang members, political prisoners, gay people and people with AIDS all had
disproportionately large numbers in disciplinary units).
180. “Can you imagine what it must have been like for me to have requested that?” asked Sunday, a
transgender woman who asked for protective custody when it seemed like the only alternative to death.
SYLVIA RIVERA LAW PROJECT, supra note 1, at 18.

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automatically placed in involuntary protective custody if they will not sign in
voluntarily.181 These policies, which effectively punish victims of violence and
deter people in detention from reporting violence they experience, have a
disproportionate impact on TIGNC people, particularly trans women in men’s
facilities, because they are disproportionately targeted for violence in prisons.182
When Nicole, a transgender Muslim woman and jailhouse lawyer, reported that she
had been raped in the mosque of the prison, the man who raped her was placed in
punitive segregation. She, however, was placed against her will in an unusual form
of solitary confinement supposedly for her own protection that was considerably
more restrictive than either punitive segregation or normal protective custody.
Unlike the man who raped her, she did not have access to her property, she did not
have access to the law library, and she was not allowed to leave her cell at all, even
for a few minutes of recreation. Not surprisingly, far from feeling protected, she
felt that she was punished for getting raped.
Some systems automatically place all TIGNC people into some form of
segregation without any form of individualized assessments of the person’s
needs.183 Even when no such policies exist, TIGNC people can be perceived (often
accurately) as vulnerable to violence, particularly in male facilities, and are
therefore particularly likely (often counter-productively) to be placed in segregation
against their will. TIGNC people are occasionally placed in administrative
segregation when a system is uncertain how to classify the person’s gender, or
supposedly for the safety of other people in detention, particularly if the person is
placed in a female facility.
Additionally, TIGNC people are disproportionately present in punitive
segregation, for several reasons. One is that TIGNC people are commonly
assumed to have sex with other prisoners, whether or not they are, as discussed
above.184 TIGNC people, particularly butches, A.G.s, and trans men of color in
women’s detention are profiled as rule breakers, potentially violent, and trouble
makers because of their masculinity and are also subject to disproportionate
punishment as a result. One person in a women’s prison in Texas stated, “[w]e are
still perceived under that patriarchal stigma of ‘sugar-n-spice and everything nice,’
and if you’re not, then you’re the lowest of the low.”185 TIGNC people are also

181. See Brief of Defendant-Appellee, Elgas v. Angelone, 19 F.3d 26 (9th Cir. 1994) (No. 93-16532),
1993 WL 13103255, at *8 (noting that plaintiff, a victim of an assault, was placed in involuntary
protective custody “in accordance with current policy and procedures”).
182. See STOP PRISONER RAPE, IN OUR EXPERIENCE: RECOMMENDATIONS BY PRISONER RAPE
SURVIVORS TO THE NATIONAL PRISON RAPE ELIMINATION COMMISSION (2007), available at
http://www.justdetention.org/pdf/InOurExperience.pdf (discussing how isolation and restrictions of
protective custody deter reporting sexual assault).
183. See Tates, 2003 WL 23864868, at *3 (noting that the Sacramento County Main Jail
“automatically classifies all biologically male transgender inmates as T-sep, regardless of their behavior,
criminal history, whether they pose a danger to others, or any other characteristic”).
184. See Lee, supra note 10, at 24 (stating that transgender and gender-variant prisoners are treated as
potential sexual predators by male correctional officers).
185. TALVI, supra note 4, at 20. See also, RAYMOND THOMPSON, WHAT TOOK YOU SO LONG?: A
GIRL’S JOURNEY INTO MANHOOD 107-137 (1995) (describing correctional officers targeting a
transsexual man in a women’s prison in Wales, leading to multiple placements in punitive segregation).

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disciplined with segregation for rules violations that involve nothing more than
expressing their gender identity. For example, trans women and other gender
nonconforming people assigned male at birth are held in punitive segregation for
possession of a bra or other items of women’s clothing or for using make up. Trans
men and other gender nonconforming people assigned female at birth are held in
punitive segregation for failing to eliminate their facial hair or for refusing to wear
prison uniforms that are tight fitting or that involve skirts.
Fluvanna Correctional Center for Women in Virginia has created a segregated
wing for prisoners who do not match feminine gender norms, whom prison staff
refer to as “little boys.”186 Anyone who seems “butch,” usually because of short
hair or baggy clothes, is moved into the separate wing. They might be given a
chance to change into sufficiently tight-fitting clothes to please a male officer and
so avoid the segregation, but those who refuse to give in to such demands are
moved. Once in this wing, they are considered last for any vocational or
educational opportunities; they are subjected to much harsher punishments for
infractions than people in other parts of the prison; and they are subjected to
constant verbal harassment related to their gender expression.187
TIGNC people who are targeted for mistreatment will from time to time speak
up about it. When they do, it is common for correctional staff to retaliate against
them through setting them up or writing false disciplinary reports, resulting once
again in segregation. That is what happened to Bianca, whose words appear at the
beginning of this Article. To justify their brutal beating of her, the guards claimed
that she had assaulted them, and they had her punished with six months in solitary
confinement. Simply because of bias, TIGNC prisoners are more likely to be
written up for any number of minor infractions that staff might overlook in other
prisoners. For example, another transgender woman prisoner I worked with was
assigned to a work program in her prison with a supervisor who despised having
her in the program. The supervisor was determined to get my client kicked out of
the program so she wrote her up repeatedly for infractions such as slight lateness or
other minor violations that she routinely overlooked in the other people in the
program. The supervisor did ultimately succeed in getting my client removed from
the program and placed in segregation for one of the violations with which the
supervisor charged her.
Other forms of segregation can also disproportionately impact TIGNC people.
For example, some systems segregate HIV positive prisoners. Trans women
experience extraordinarily high rates of HIV,188 which means they also experience
HIV segregation more often than others. Also, observation for people who are
suicidal is a particularly intense form of segregation where a person can be stripped
of all their clothing and belongings and placed alone in an empty cell and watched

186. Telephone Interview with Helen Trainor, Director, Virginia Institutionalized Persons Project
(Aug, 14, 2008).
187. Id.
188. See, e.g., K. Clements-Nolle et al., HIV Prevalence, Risk Behaviors, Health Care Use, and
Mental Health Status of Transgender Persons: Implications for Public Health Intervention, 91 AM. J.
PUB. HEALTH 915 (2001) (noting that male-to-female transgender people were found to have a HIV
prevalence of thirty-five percent).

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almost constantly by staff.189 TIGNC people, who are often deprived of needed
healthcare such as hormones and surgery, who are usually forced to live in every
way as a gender with which they do not identify, and who are often targeted for
intense violence and unceasing verbal harassment, can be particularly likely to
engage in self-harm or suicide attempts that lead to placement in strip cells.190 Selfharming behavior can also lead to disciplinary infractions and placement in
punitive segregation.191
While beyond the scope of this Article, policies and practices of gender-based
segregation in detention also pose severe problems for TIGNC people, who rarely
fit easily into the system’s conception of binary gender. Staff almost always make
decisions about where to place TIGNC people based on their genitals and/or their
assigned sex at birth without any consideration of which placement would do least
harm to the individual’s safety, health, or dignity. Alexander Lee’s Nowhere to Go
but Out provides particularly insightful treatment of this subject.192
C. Inadequacy of Legal Framework for Challenging Segregation
The legal restraints on the ability of prisons to impose isolating forms of
segregation on the people in their custody are extremely limited. One major flaw in
the legal analysis of challenges to segregating placement is that to the extent courts
consider issues of safety at all in their analysis they almost always assume that
safety would be better served by isolation than by contact with others. The great
deference the courts give to prison administrators is another major flaw particularly
given the primary role of prison staff in perpetrating violence in prisons.
Conditions in solitary confinement can be challenged though the Eighth
Amendment prohibition on cruel and unusual punishment.193 In general, prison
officials may be liable under the Eighth Amendment when they exhibit deliberate
indifference to excessive risks to the health or safety of prisoners.194 Serious
deprivations of basic human needs, such as food, clothing, shelter, medical care,
reasonable safety,195 warmth,196 exercise,197 hygiene,198 and sleep,199 can constitute

189. TALVI, supra note 4, at 130.
190. See, e.g., Loftin, supra note 160 (reporting experiences where prisoners’ hormones are withheld
if placed on administrative segregation or suicide watch).
191. See TALVI, supra note 4, at 130 (noting a case where a woman cut her brachial artery in an
attempt to kill herself and was later fined $50 for medical expenses and given extra work).
192. LEE, NOWHERE TO GO BUT OUT, supra note 11, at 37. Many other articles have also been
written on the subject. See, e.g., Barnes, supra note 10, at 599 (exploring how courts and prisons
struggle to fit transgender prisoners into a narrow definition of sex that are employed by prisons); Mann,
supra note 10, at 91 (exploring policies with regard to transgender prisoners within the United States’,
Australian, and Canadian prison systems); Peek, supra note 10, at 1211 (studying how policies and legal
rulings lead to rape of transgender people in prison); Rosenblum, supra note 10, at 49 (exploring
placement and treatment issues faced by transgender people in prison); Tarzwell, supra note 8, at 167
(studying the state of prison management of transgender people).
193. U.S. CONST. amend. VIII.
194. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976) (discussing context of medical care);
Farmer, 511 U.S. at 836 (discussing context of prisoner-on-prisoner assault); Helling v. McKinney, 509
U.S. 25, 33 (1993) (discussing context of tobacco smoke).
195. Helling, 509 U.S. at 32 (citing DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S.

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violations of the Eighth Amendment. However, courts have found even these kinds
of deprivations permissible with sufficient penological justification.200 While
courts have at times found certain conditions within solitary confinement to violate
Constitutional rights of certain groups of prisoners or individual prisoners, courts
have consistently held that solitary confinement in and of itself does not constitute
cruel and unusual punishment.201 This acceptance of the basic legitimacy of the use
of isolation as a tool for managing prisoners has greatly limited the potential utility
of the Eighth Amendment for challenging these practices.
Another primary legal means of challenging isolating forms of segregation is
procedural due process claims. The analysis differs depending on whether one is in
an isolating placement because of discipline (punitive segregation) or for other
reasons (administrative segregation). The first step in a procedural due process
claim is proving that the plaintiff had a protected interest at stake.202
In Sandin v. Conner,203 the Supreme Court limited the due process protections
of prisoners holding that restraints deprive them of “liberty” within the meaning of
the Due Process Clause only if they “impose[] atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.”204 Circuits have
varied in their application of this ruling to periods of time in isolation.205 The
Second Circuit has found that confinement in punitive segregation for periods of
101 days or less presumptively is not a deprivation of liberty under Sandin.206
Confinement in punitive segregation for 305 days or more is presumptively a
deprivation of liberty.207 Intermediate periods require a more fact-intensive
analysis.208

189, 199-200 (1989)).
196. Wilson v. Seiter, 501 U.S. 294, 304 (1991); Palmer v. Johnson, 193 F.3d 346, 352-53 (5th Cir.
1999).
197. Wilson, 501 U.S. at 304; Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 810 (10th Cir. 1999).
198. Palmer, 193 F.3d at 352 (quoting Novak v. Beto, 453 F.2d 661, 665 (5th Cir. 1971)); see Harper
v. Showers, 174 F.3d 716, 717, 720 (5th Cir. 1999) (noting that housing in filthy, unsanitary cells might
violate the Eighth Amendment depending on the facts).
199. Harper, 174 F.3d at 720.
200. John Boston, OVERVIEW OF PRISONER RIGHTS 6-7 (2008).
201. Hutto v. Finney, 437 U.S. 678, 686 (1978); Madrid v. Gomez, 889 F. Supp. 1146, 1261 (N.D.
Cal. 1995) (“There is nothing per se improper about segregating inmates, even for lengthy or indefinite
terms.”); Scharff Smith, supra note 138, at 443 (noting that although certain conditions in prisons violate
the Eighth Amendment of the U.S. Constitution, long-term isolation is not illegal); Hresko, supra note
136, at 16 (noting that “courts that have considered the psychological harms of solitary confinement
have tended to reject the notion that an Eighth Amendment violation results from them”).
202. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
203. 515 U.S. 472 (1995).
204. Id. at 484.
205. See Skinner v. Cunningham, 430 F.3d 483, 486 (1st Cir. 2005) (affirming the district court
ruling that forty days confinement did not meet the test of “atypical and significant hardship”); Hemphill
v. Delo, No. 95-3357, 1997 WL 581079, at *2 (8th Cir. Sept. 22, 1997) (holding that four days locked in
his housing unit, thirty days in disciplinary segregation, and approximately 290 days in administrative
segregation do not constitute an “atypical and significant hardship”).
206. Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
207. Id.
208. Id. at 232.

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Once a deprivation of a liberty interest has been proven, the next step of the
inquiry is to determine whether the plaintiff received the process that was due.209
Here is where the analysis of disciplinary, as opposed to administrative,
confinement differs significantly. In Wolff v. McDonnell,210 the Supreme Court
outlined the basic requirements for procedural due process in prison disciplinary
proceedings where a liberty interest is at stake. These requirements include
advance written notice of the claimed violation;211 a written statement of the
factfinders as to the evidence relied upon and the reasons for the disciplinary action
taken;212 the opportunity to call witnesses and present documentary evidence in
defense when it would not be unduly hazardous to institutional safety or
correctional goals;213 assistance where an illiterate inmate is involved or the
complexity of the issue makes it unlikely that the inmate will be able to collect and
present the evidence necessary;214 and an impartial decision-maker.215
Confrontation of witnesses, cross examination, and representation of counsel are
not required.216
The Supreme Court has ruled that less process is due in the context of
administrative segregation. In Hewitt v. Helms,217 the Court ruled that even where
placement in administrative segregation does constitute a deprivation of liberty, the
officials were “obligated to engage only in an informal, nonadversary review of the
information supporting Respondent’s administrative confinement, including
whatever statement respondent wished to submit, within a reasonable time after
confining him to administrative segregation.”218 Engaging in Mathews v.
Eldridge219 balancing, the Court reasoned that the “Respondent’s private interest is
not one of great consequence” because he was “merely transferred . . . to an even
more confined” environment than he had been in previously.220 The Court
distinguished this transfer from disciplinary confinement because of the lack of
stigma from a finding of misconduct and the lack of any “significant” effect on
parole opportunities.221 The Court also reasoned that because of the highly
subjective nature of the decision to place someone in administrative segregation, an
adversarial-style proceeding would not be of any great assistance in making such
decisions.222

209.
210.
211.
212.
213.
214.
215.
216.
217.
218.
219.
220.
221.
222.

Mathews, 424 U.S. at 335.
418 U.S. 539 (1974).
Id. at 563.
Id.
Id. at 566.
Id. at 570.
Id. at 570-71.
Wolff, 418 U.S. at 567.
459 U.S. 460 (1983).
Id. at 472.
424 U.S. at 334-35.
Hewitt, 459 U.S. at 473.
Id.
Id. at 474.

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In Wilkinson v. Austin,223 the Court again found that informal, non-adversarial
procedures were adequate to satisfy constitutional due process for administrative
segregation even when the segregation took the form of the exceedingly severe and
isolated conditions of a supermax prison.224 In this case, the Court considered the
governmental interests in maintaining safety and avoiding increased costs to
outweigh the individual’s interest and any probable value of increased procedural
safeguards.225
A closer look at cases brought by TIGNC prisoners seeking relief from some
form of isolation demonstrates the severe limits of legal inquiry into these
practices. One particularly striking example is the Tenth Circuit decision in Estate
of DiMarco v. Wyoming Department of Corrections.226 In this case Miki Ann
DiMarco, a woman with an intersex condition, was incarcerated in a women’s
correctional facility in Wyoming for fourteen months.227 On the initial intake
evaluation form, she received a total score of one.228 Because one was the lowest
possible risk score, Ms. DiMarco was initially classified as a minimum security risk
eligible for minimum security general population housing with the maximum
allowable access to privileges and possessions.229 She had previously been
incarcerated with women in a general population setting without incident.230
Nonetheless, during a search when she arrived at the facility, staff realized she had
a penis and immediately placed her in segregation in the maximum security unit of
the facility where she remained for the 438 days of her incarceration.231 During
trial, the defendants stated that her segregation was intended to protect the safety of
other prisoners, guards, and Ms. DiMarco herself.232 She was reclassified in the
same way every ninety days without any hearing.233
Because of her placement in segregation, she was not allowed contact with
other women in the prison, the opportunity to work for pay, access to the general
population day room, access to the cafeteria or commissary, access to educational
programs, or access to a hair cut.234 She had to eat all meals in her cell while sitting
on her cot or toilet because she did not have a table or chair.235 She was not
allowed to have everyday possessions that were allowed elsewhere in the facility.236
She was not allowed to have any communication with other prisoners, and she was
disciplined when she did speak with other prisoners who were in segregation.237

223.
224.
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
235.
236.
237.

545 U.S. 209 (2005).
Id. at 229-30.
Id.
473 F.3d 1334 (10th Cir. 2007).
DiMarco v. Dep’t of Corr., 300 F. Supp. 2d 1183, 1186-87 (D. Wyo. 2004).
Id. at 1188.
Id.
Id. at 1187.
Id.
Id. at 1191.
DiMarco, 300 F. Supp. 2d at 1189.
Id. at 1188.
Id.
Id.
Id. at 1191.

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The trial court “reluctantly” rejected Ms. DiMarco’s Eighth Amendment cruel
and unusual punishment claim because the basic necessities of food, shelter,
clothing, and medical care had been provided to Ms. DiMarco.238 In reaching this
conclusion, the court stated, “[t]his Court understands that administrative
segregation was necessary for the safety of both the inmates and Plaintiff but
questions whether or not less harsh alternatives were available to the WWC
staff.”239 The court also rejected her Equal Protection claim, finding “that no equal
protection violation occurred using the rational basis test because Defendants’
actions in placing Plaintiff in segregated confinement was rationally related to the
legitimate purposes of ensuring the safety of Plaintiff and other inmates and
maintaining the security of the facility.”240 There is no analysis in the judge’s
opinion, nor even any explanation in the brief of defendants, as to how placement
in segregation could conceivably improve the safety of Ms. DiMarco, although the
warden testified at trial that “a primary concern was that other inmates might try to
harm DiMarco if they discovered her physical condition.”241 The court did,
however, find that Ms. DiMarco’s due process rights had been violated.242
Ms. DiMarco fared less well on appeal. After considering several factors,
including the need for segregation based on safety concerns,243 the Tenth Circuit
described the deprivations Ms. DiMarco experienced as “petty” and concluded that
they did not reach the Sandin standard for deprivation of a liberty interest.244 The
court went on to state that even if she had been deprived of her liberty, she would
not have been entitled to any greater procedural safeguards than those she
received.245
An even more typical result in claims such as these is Murray v. U.S. Bureau
of Prisoners.246 In this case, a transgender woman challenged her frequent
placement in segregation.247 Prison officials contended that segregation was
ordered to protect her twice and to discipline her for refusing to wear a bra on other
occasions.248 With relatively little analysis, the court accepted these reasons as
legitimate and affirmed the trial court’s grant of summary judgment to
defendants.249 Ms. Murray’s other claims concerned three instances of violence
against her by staff, but it does not appear that she alleged any assaults by the other
prisoners.250

238. Id. at 1194.
239. DiMarco, 300 F. Supp. 2d at 1192.
240. Id. at 1197.
241. DiMarco, 473 F.3d at 1337.
242. DiMarco, 300 F. Supp. 2d at 1196.
243. DiMarco, 473 F.3d at 1342.
244. Id. at 1344.
245. Id. at 1344-45.
246. 106 F.3d 401 (tbl.), No. 95-5204, 1997 WL 34677 (6th Cir. Jan. 28, 1997).
247. Id. at *1.
248. Id. at *2.
249. Id. at *5.
250. Id. at *3; cf. Lamb v. Maschner, 633 F. Supp. 351, 353-54 (D. Kan. 1986) (granting summary
judgment for defendant in a suit by a transgender woman seeking, among other claims, protection from
sexual assault through any means other than administrative segregation). Although plaintiff’s

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TIGNC prisoners have lost in several other published cases concerning
involuntary segregation.251 The plaintiff did not prevail even in the one published
case where a court ruled that a transgender plaintiff’s due process rights were
violated through placement in segregation. In Farmer v. Kavanagh,252 a
transgender woman challenged her emergency transfer to a supermax facility after
an informant provided information that she was involved in an identity theft
scheme to obtain credit in the names of certain wardens.253 The court found she
was entitled to a review within a certain number of days of her transfer whereby the
prison officials should have explained the reasons for her transfer and provided an
opportunity for her to offer reasons why she should not have been transferred.254
Ultimately, however, the court found for defendants on qualified immunity
grounds.255
Ms. Farmer also presented a factually compelling but ultimately unsuccessful
Eighth Amendment challenge to her placement in the supermax.256 Ms. Farmer had
HIV, depression, and other physical and mental health conditions.257
A
memorandum in her file stated that segregation was detrimental to her health.258
According to Ms. Farmer, once she was transferred her viral load and depression
did in fact worsen.259 However, the court ruled that she did not meet the subjective
component of the test for deliberate indifference because Ms. Farmer did not show
that the officials actually knew that the supermax would have a serious negative
impact on her health even if they should have known.260
There are a few cases that indicate a much greater understanding of the
problems with isolation for TIGNC prisoners. In Meriwether v. Faulkner,261 the
Seventh Circuit reversed the trial court’s dismissal of a transgender woman’s claim

administrative segregation claim became moot, the Lamb court noted that “[i]f plaintiff fears general
population, he [sic] may request protective custody, but again, he [sic] will be segregated from the rest
of general population. Plaintiff does not have a constitutional right to choose his [sic] place of
confinement and prison officials may move a prisoner for any reason or no reason at all.” Lamb, 633 F.
Supp. at 353.
251. See, e.g., Short v. Danberg, No. 08-106-JJF, 2008 WL 4722396, at *3-5 (D. Del. Oct. 21, 2008)
(dismissing an action asserting a violation of due process for detention in administrative segregation and
isolation as frivolous and for failure to state a claim upon which relief can be granted; but dismissing
without prejudice the claim that black lesbian inmates were subjected to administrative segregation and
other discriminatory treatment in violation of the Equal Protection clause); Farmer v. Carlson, 685 F.
Supp. 1335, 1344 (M.D. Pa. 1988) (dismissing a transgender woman’s claim that her equal protection
rights, due process rights, and right to be free from cruel and unusual punishment were violated on the
grounds that she spent “only” four and a half months in administrative segregation).
252. 494 F. Supp. 2d 345.
253. Id. at 349.
254. Id. at 358-59.
255. Id. at 359-60 (ruling for defendants due to the lack of evidence showing that prison officials
knew that the transfer would have eroded Ms. Farmer’s liberty interest or Constitutional right at the time
of her transfer).
256. Id. at 361-71.
257. Id. at 364.
258. Farmer, 494 F. Supp. 2d at 364.
259. Id. at 362-63 nn.38-39.
260. Id. at 364-65.
261. 821 F.2d 408 (7th Cir. 1987).

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that her indefinite confinement in administrative segregation violated her rights.262
Ms. Meriwether alleged that she experienced multiple assaults and ongoing
harassment from both guards and prisoners while in general population and in
administrative segregation.263 She challenged her placement in administrative
segregation—which could have lasted for the remaining thirty years of her
sentence264—as well as the complete refusal of any gender-related medical
treatment, such as hormone therapy.265 She stated that being in segregation denied
her “adequate recreation, living space, educational and occupational rehabilitation
opportunities, and associational rights for nonpunitive reasons.”266
Concerning her confinement in administrative segregation, the court relied on
precedent stating that lockdown restrictions, even if permanent, do not implicate a
liberty interest subject to judicial review under due process.267 However, the court
was not prepared to dismiss the claim that such an extended period of time in
administrative segregation could constitute a violation of her Eighth Amendment
right to be free from cruel and unusual punishment.268
However, even in this case, the court’s understanding of the issues was
distorted by an inability to imagine isolation as having a negative, rather than
positive, effect on safety. As a result, the court expressed skepticism concerning
the ultimate outcome of her claim about administrative segregation due to the
potential lack of feasible alternatives.269 The court also asserted that “[p]laintiff’s
claim that the defendants have deliberately failed to protect her from sexual assault
is somewhat in conflict with her desire not to remain in administrative segregation
indefinitely.”270 It is extremely problematic that our courts could consider a desire
to be free from sexual assault to be incompatible with a desire to be free from
solitary confinement, particularly when confronted directly with allegations of
sexual assault by both guards and other prisoners in administrative segregation as
well as general population.271 Nonetheless, while the court’s dicta underscores
disturbing trends, the actual holding allowing her claims to survive is
encouraging.272

262. Id. at 410-11.
263. Id.
264. Id. at 414-17.
265. Id. at 411-14.
266. Id. at 416.
267. Meriwether, 821 F.2d at 414.
268. Id. at 415.
269. Id. at 417 (“Given her transsexual identity and unique physical characteristics, her being housed
among male inmates in a general population cell would undoubtedly create, in the words of the district
court, ‘a volatile and explosive situation.’ Under such circumstances it is unlikely that prison officials
would be able to protect her from the violence, sexual assault, and harassment about which she
complains.”) (internal citation omitted).
270. Id. at 417-18.
271. Id. at 417.
272. Id. at 418. Further, the court suggested that plaintiff’s allegations of sexual assault be reviewed
by the district court on remand prior to consideration of her administrative segregation and Eighth
Amendment claims. Meriwether, 821 F.2d at 417.

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By far the best cases in terms of involuntary segregation of trans people are
Tates v. Blanas and Medina-Tejada v. Sacramento County,273 which, unfortunately,
are unreported district court decisions. In Tates, a transgender woman challenged
her placement in “total separation” or T-Sep, the most restrictive placement in
Sacramento County Jail.274 The jail automatically placed all transgender detainees
in T-Sep throughout their entire period of incarceration, rather than in protective
custody or general population.275 The defendants stated that they placed Ms. Tates
in T-Sep “solely because [s]he is transgender, and Defendants fear [s]he might be
harmed and they be held liable if [s]he were given a less restrictive
classification.”276 Although initially assuming that the defendants had made an
appropriate decision, additional evidence and testimony motivated the court to
conduct a genuine analysis of the situation.277
The court reviewed the differences between T-Sep and general population.
Unlike those in other settings, people in T-Sep were shackled during transport;
could not participate in group worship or religious services; had extremely little
access to the day room, phones, and showers; were not permitted to interact with
other prisoners even by speaking; and were given considerably less sanitary cells
with no means to clean them.278 The court also discussed the other forms of
discriminatory treatment to which Ms. Tates was subjected including: receiving her
food on the floor, denial of access to a bra, sexual assault, verbal harassment, and
threats of violence from both guards and the detainees entrusted with delivering her
food.279 Ultimately, the court ruled against the defendants and ordered them to
create a new classification scheme that would not discriminate against transgender
detainees.280 Without explicitly naming it as such, the court engaged in an Equal
Protection analysis comparing the treatment of transgender detainees with the
treatment of similarly situated non-transgender detainees.281 Specifically, the court
found that jail officials may not deny transgender detainees benefits available to all
other detainees solely out of bias, that segregation of transgender detainees is not
always required to protect transgender detainees, and that the duty to protect
transgender detainees from harm may not be used to justify actions not reasonably
related to accomplishing that purpose.282
273. No. Civ.S-04-138FDC/DAD, 2006 WL 463158 (E.D. Cal. Feb. 27, 2006).
274. Tates, 2003 WL 23864868, at *2.
275. Id. at *3.
276. Id.
277. Id. at *4.
278. Id. at *4-7.
279. Id. at *8.
280. Tates, 2003 WL 23864868, at *10.
281. Id. The court stated:
Defendants can, and must, adopt a classification scheme that more appropriately addresses
the special circumstances of transgender inmates. Transgender inmates should not routinely
be shackled and chained in circumstances where other inmates would not be subjected to
such treatment. Transgender inmates should be permitted to socialize with each other
unless there are particular safety concerns that would create an undue risk of harm. Such
determinations must be based upon facts, not phobias.
Id.
282. Id. at *9.

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Unfortunately, it appears that the jail continued its unconstitutional actions in
direct violation of the court’s order at least until another transgender woman, this
time an immigration detainee held at the same jail, brought a lawsuit alleging
automatic placement in T-Sep and other forms of abuse and mistreatment.283 The
Medina-Tejada court, relying on precedent from Tates and persuaded by the
significant evidence put forth by Ms. Medina-Tejada, found that her classification
was presumptively punitive.284 The court left it to the jury to decide whether the
restrictions faced by Ms. Medina-Tejada in T-Sep were “excessive in relation to the
alleged safety purpose in keeping her segregated and [whether] this purpose could
not have been achieved by alternative and less harsh methods.”285 Further, the
court determined that the defendant jail official was not entitled to qualified
immunity in light of the “fair warning” that Tates provided with respect to “the
constitutional parameters for the classification and treatment of transgender inmates
at the Sacramento County Main Jail.”286
The courts in Tates and Medina-Tejada demonstrate the method of analysis in
which all courts need to engage. Rather than blindly deferring to an unsupported
assertion that isolation is required to promote “safety,” they considered the actual
motivations and impact of the policy of isolation.287 The enforcement of the equal
protection rights of transgender people subjected to involuntary isolating placement
in segregation must expand consistent with Tates and Medina-Tejada. However, a
new direction from the Supreme Court in considering the practice of solitary
confinement as constituting cruel and unusual punishment would be even more
useful.
VII. RECOMMENDATIONS
Finding ways to meaningfully decrease violence against TIGNC people in
detention is a delicate task. Avenues that may seem appealing at first can actually
lead to greater violence. Despite my condemnation of the violence inherent in
solitary confinement, I do not propose eliminating ways for TIGNC to be able to be
voluntarily separated from some others for their safety. Rather, I propose a number
of changes that will allow for less exposure to state violence, greater opportunities
for non-violent and anti-violent community building, and greater opportunities for
the people who are most expert in the area—TIGNC people in detention
themselves—to determine what will most increase their safety.

283. Medina-Tejada, 2006 WL 463158, at *1.
284. Id. at *9.
285. Id. (citing Jones v. Blanas, 393 F.3d 918, 934-35 (9th Cir. 2004)) (internal quotation marks
omitted).
286. Id. at *10.
287. See Tates, 2003 WL 23864868, at *10 (noting that transgender inmates should be permitted to
socialize with each other unless particular safety concerns would pose a risk of harm); Medina-Tejada,
2006 WL 463158, at *6, *9 (relying on Tates and adding that it is defendants’ burden to prove that the
restrictions imposed were not unduly disproportionate to the safety purpose they sought to achieve).

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A. For Improving Advocacy
1. Focus on abolition.
The only way to truly end violence against transgender people in detention is
to end detention. In making recommendations for reform, we must not lose sight of
the damage, costs, and violence perpetrated through incarceration on our
communities. Our ultimate goal must be prison abolition. Our recommendations
for reform must support that ultimate vision, or at least not interfere with it, while
easing some of the horrors that people experience in detention today.
2. Centralize the experiences and opinions of the people most impacted by the
system that advocates seek to change.
We risk doing more damage than good if we act on assumptions based on our
own experiences and perceptions rather than listening to and taking leadership from
a variety of people who have direct experiences with the systems we seek to
change. In this case, advocates should consult and respect the opinions of TIGNC
people who are now or who have been in detention.
3. Avoid divisive tactics and form broad coalitions.
Work to end violence against TIGNC people in detention presents an excellent
opportunity for building connections among multiple struggles, including those for
immigrants’ rights, reproductive justice, racial justice, economic justice, disability
rights, and gender justice. Alliances among these movements present the potential
for true transformative change in the systems that harm TIGNC people in and
through detention. In order to create them, we must focus on the ways that all
marginalized communities are harmed by current systems and avoid falling into the
trap of scapegoating any of these groups.
4. Do not oversimplify interactions between trans people and non-trans
people in detention.
Again, we must avoid racist or overly simplistic understandings of the
possibilities for interactions between trans and non-trans people in detention. The
importance of community building in reducing and surviving violence everywhere,
including detention, must play a role in our analysis.
B. For Improving Judicial Review
1. Eliminate deference to prison officials in prisoners’ rights cases and reject
bare assertions equating isolation with safety.
Given the epidemic violence against people in detention, prison officials do
not deserve the deference they currently receive from our courts. Courts must
accept responsibility to look beyond bare assertions of “legitimate penological
interests” and to determine what evidence supports the claims of officials and just
how “legitimate” the interests are. Courts should acknowledge the dangers

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isolation present and recognize that rights that touch on freedom of speech and
assembly almost always also implicate a right to be free from violence.
2. Apply Equal Protection analysis to end isolation of people in detention
solely because they are trans, intersex, or gender nonconforming.
When the state imposes the extreme conditions of solitary confinement on
people in detention against their will solely because they are transgender, intersex,
or gender nonconforming, the Fourteenth Amendment has been violated.
3. Recognize solitary confinement, in and of itself, as a form of cruel and
unusual punishment.
Solitary confinement is a form of torture. It should be recognized as a form of
cruel and unusual punishment and forbidden altogether. At the very least, any
length of time in solitary confinement should be considered a deprivation of liberty
sufficient to trigger a due process analysis.
C. For Improving Policies of Detention Agencies and Facilities
1. End the use of solitary confinement.
Should people in prison need to be separated from one another for particular
safety reasons, these separations should be made in a way that does not eliminate or
drastically reduce human contact with those inside or outside the facility and that
does not preclude participation in programs. Should people in detention need to be
held accountable for violence, the means for doing so must be humane. Whenever
possible the root causes of and systemic factors contributing to the violent behavior
should be identified and addressed to prevent recurrences.
2. Eliminate involuntary protective custody.
Individuals who are at risk of and/or survivors of violence are the people who
are best able to decide what will actually keep them safest. In recognition of this
fact and the great risks of protective custody as it currently exists, no one should
ever be placed in protective custody against his or her will. A narrow exception
may need to be made for those rare individuals who are truly incapable of
understanding the situation due to a disability and for whom protective custody
truly would be in their best interests, but in such cases very strong safeguards
would need to be in place.
3. Make available separate housing for vulnerable people in detention which
does not isolate or otherwise punish the people in that housing.
Separate housing for people who are particularly vulnerable to violence in
detention should be available on a voluntary basis. Any TIGNC person who seeks
placement in such housing should receive it. However, this housing should not be
isolating, should not restrict contact with the outside world, should not prevent
participation in programs, and should not otherwise involve any worse treatment or

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any longer periods of detention for those within it than for those who are not
particularly vulnerable to violence. This separate housing also should not be used
as an excuse for further prison construction; existing facilities should be utilized.
4. Eliminate state punishment, including segregation in detention, for
consensual adult sexuality and affection.
There is simply no legitimate state interest in punishing consensual adult
sexuality and affection. Undermining positive relationships undermines safety;
punishing consensual sex undermines accountability for non-consensual sex. The
disproportionate and discriminatory over-segregation of TIGNC and queer people
within prisons could be significantly reduced if punishments were disallowed for
consensual sexual or affectionate contact between adults.
5. Eliminate state punishment, including segregation in detention, for failure
to conform to gender norms.
Again, there is simply no legitimate state interest in the enforcement of norms
concerning gender roles. The ability to self-determine one’s own gender identity
and expression should be acknowledged as a fundamental human right. The
disproportionate and discriminatory over-segregation of TIGNC people within
prisons could be significantly reduced if infractions such as “possession of a bra” or
“refusal to remove facial hair” were no longer punished.
6. Restrict interactions between staff and prisoners where no other prisoners
can witness what is happening.
When staff can access people in detention privately, the potential for abuse
increases as the potential for intervention and accountability decreases. Except in
situations where privacy is needed and desired, such as during strip searches, staff
should not be allowed to interact with people in detention alone.
7. Improve policies and practices for gender-based segregation.
Agencies with responsibility for any form of detention should work with local
community members to develop specific, detailed policies for the placement of
transgender people in male or female facilities. The paramount goal of this process
must be to find the placement that will likely do the least possible harm to the
safety, health, and dignity of each transgender person placed. The best placements
will also be the ones where the person is more likely to be able to find allies and
build community. The individuals’ own assessment should receive primary
consideration.
8. Reduce and address staff violence against TIGNC people in detention
through policies, training, and enforcement.
Abusive staff practices, such as “gender check” strip searches of TIGNC
people, should be clearly prohibited. Policies without training and enforcement
accomplish little, if anything. Enforcement mechanisms must be meaningful and
should not rely on punishment, prosecution, or imprisonment, which are no more

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effective when applied to prison staff than when applied to others. The root causes
of the behavior should be identified and addressed whenever possible. Staff
members should not be permitted to continue to have access to prisoners whom
they are alleged to have abused. Agencies should contract with qualified
community-based organizations to provide them with the training they need.
9. Relieve restrictions on non-violent organizing and communications among
people in detention.
Unless there is actual evidence that such activities are leading to violence, they
should be presumed to be more likely to be preventing it. Any restrictions that
remain in place should be narrowed to what is actually helpful toward the goal of
reducing violence.
Prisoner-initiated, outsider-supported trans and queer
programming in detention, should be supported. The potential value of these types
of groups for increasing understanding and support across gender lines cannot be
underestimated.
D. For Addressing Root Causes of Violence in Detention
1. Increase access to free or affordable housing, employment and education
opportunities, accurate ID, voluntary drug treatment, quality health care and
income support for TIGNC communities and other marginalized communities.
Eliminating poverty and ensuring that people can meet their basic needs will
go a long way to eliminating the cycles of incarceration that affect TIGNC and
other marginalized communities.
2. Eliminate police profiling of trans and gender nonconforming people,
homeless people, people of color, people with disabilities, and other
marginalized communities.
Gender, racial, class, and (dis)ability-based police profiling is morally
indefensible and must end. The disproportionate incarceration of trans and gender
nonconforming people and members of other marginalized groups in detention and
thus their exposure to the violence of detention would drop dramatically with the
end of police profiling.
3. Build safety in communities in ways that do not rely on prosecution and
incarceration.
Developing community-based responses to intimate-partner violence,
intervening in instances of hate and police violence on the street, teaching selfdefense and conflict resolution skills, providing free rides home late at night to
people often targeted for street violence, training young people about trans
awareness and anti-violence strategies, providing support to survivors of violence,
and gathering data and raising awareness about violence are just a few of the ways
that individuals and organizations across the county are finding to create real safety
in communities outside of the criminal punishment system.

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4. Decrease incarceration.
In general, the toxic policies of mass incarceration must end. As steps toward
that goal, non-violent crimes should be decriminalized—or at a minimum
responded to with alternatives to detention; immigration detention should be
eliminated and paths to legal status in the U.S. widened; and greater financial
resources should go to schools, healthcare, and affordable housing and less to
police, prisons, and prosecutors.
5. Increase outside support for people in prison and accountability for staff.
Because staff are responsible for most of the violence against TIGNC people
in detention, it is critical that outside, truly independent agencies with real
enforcement powers have oversight over the actions of officials and staff in
detention agencies and facilities. Survivors of violence and those vulnerable to
violence in detention should be able to have easy, prompt, confidential, and costfree access to supportive mental health and legal services from outside providers.
CONCLUSION
In my work with TIGNC people in detention, I am regularly both horrified and
inspired by their experiences and resistance. The power for true transformative
change of our fundamentally violent and oppressive criminal legal system rests
with them and with others in detention. Involuntary placement in isolating forms
of segregation, despite claims to be necessary for the safety of TIGNC people in
detention, is actually one of the greatest threats to their safety. The legal system
and advocates must find ways to facilitate, not prevent, voluntary opportunities for
trans and non-trans people in detention to build community and positive
relationships with one another.