These issues are getting fresh attention because of congressional consideration of the Equality Act, which if passed could require states to house transgender inmates according to their gender identity. The solution to this “clash of rights,” as The Economist termed it, may lie with the much-maligned private prison industry, which has the flexibility to safely house this small, uniquely vulnerable population in a cost-effective manner.
Almost all states, as well as the Federal Bureau of Prisons (BOP), currently make initial classifications for inmate placement based on what they typically refer to as an inmate’s “biological sex,” regardless of gender identification or history of treatment for gender dysphoria. Current BOP policy, for example, states that “designation to a facility of the inmate’s identified gender would be appropriate only in rare cases.” While California has enacted legislation requiring its corrections department to house inmates according to gender identity, most other states generally use biological sex to determine placement.
The culture of prison officials, who generally aren’t “woke,” likely has something to do with this. But the real culprit is cost: States often lack the resources to undertake extensive medical and psychological evaluations and risk assessments needed to determine if a person faces a real risk from being placed in a facility that is contrary to their gender identification. They also remain concerned about inmates posing as transgender who have assaulted female inmates in women’s prisons.
Regardless, trans inmates face significant risks when incarcerated. In 2009, the Justice Department’s National Prison Rape Elimination Commission documented that “gender non-conforming” prisoners faced a heightened risk of sexual violence and other forms of abuse. This is especially true of transgender women placed in men’s prisons, who are often perceived by other inmates as weak or as implicitly having consented to sex because they express a transgender identity. In a 2007 study of sexual assault in California prisons, 59 percent of transgender inmates reported experiencing sexual assault, compared to 4.4 percent of all inmates. More than half of the transgender inmates said they had been coerced into sexual contact against their will.
A recent federal lawsuit filed by an inmate against the Michigan Department of Corrections is typical: The transgender woman alleged that she was deliberately placed in a cell with a convicted rapist who assaulted her the next day and that prison officials were indifferent to her pleas for assistance. In Georgia, another transgender woman claimed she was sexually assaulted repeatedly while incarcerated in a men’s prison. Colorado faced a class-action suit filed by about 170 trans inmates alleging sexual harassment, physical violence and rape.
Facing these legal pressures, many prison officials default to placing trans people in solitary confinement — essentially punishing them for their vulnerability. A 2015 report from a transgender inmates’ rights group found that 85 percent of incarcerated gay, lesbian and transgender respondents had been in solitary at some point during their sentence.
No matter one’s views on transgender issues, sheer human decency compels governments to take steps to protect these people. The solution is obvious: Transgender inmates need their own dedicated housing units that can respond to their unique needs. That’s happened in a few facilities, including a 30-bed unit in New York City’s Rikers Island jail that opened in 2014. But such examples are few and far between, mostly for reasons of expense but also because such specialized units tend to run against the grain of our industrialized prison system, which usually achieves cost controls by operating on a massive (and often dehumanizing) scale.
This is where the private prison industry may have a unique, albeit unexpected, role to play. Establishing a transgender unit within a single state’s corrections system is difficult and expensive; with a relatively small number of transgender inmates, most corrections departments cannot “scale up” to make such specialized units affordable. However, private prison companies can contract on a regional or multistate basis to house transgender people at a reasonable cost to taxpayers.
Those who break the law must be held accountable. But no one is sentenced to being raped in prison. Government has an obligation to protect everyone from assault when behind bars. Since government-run prisons have fumbled the admittedly difficult task of safely housing transgender inmates, maybe it is time to try another option.
Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
