Story by Nora Neus
Wed. June 23, 2021
Jennifer Orthwein, a public interest attorney in California, filed a lawsuit on June 11 on behalf of a currently incarcerated trans woman, Syiaah Skylit, and the entire class of trans prisoners in similar situations in California. “As people have begun to assert their rights under SB 132, they have been met with severe retaliation, distressing delays, tactics intended to police their genders, dangerous rumors and misinformation, and systemic outing of transgender, nonbinary and intersex people,” Orthwein tells CNN.
(CNN)—Jasmine Rose Jones is a woman. But for much of the last 23 years, she was incarcerated in a men’s facility, and she says she was subjected to rape, sexual assault and abuse, just because she is transgender. Jones, who was released from prison in May 2020 and is now a legal assistant at the?Transgender?Gender-Variant & Intersex Justice Project in San Francisco, says she was repeatedly raped and sexually assaulted by male prisoners and abused by male correctional officers across multiple facilities throughout her multiple stints in custody.
At the time, Jones did not feel like she could report the assaults to corrections officers, for fear of retribution, including being thrown into solitary confinement. But she says she had told officers that she was transgender and feared for her safety.She heard similar fears from other trans women serving with her.”We lived with it,” she says. “We lived with the abuse.”
Jones is not alone. As recently as last year, the vast majority of incarcerated trans people in America are still housed in facilities based on the sex they were assigned at birth, according to a 2020 investigation by NBC News.
This is despite robust evidence that trans women are at a significantly higher risk of abuse and assault than the general prison population, according to academic research and surveys of incarcerated trans people. And that is still the case nearly 30 years after a landmark Supreme Court decision in Farmer v Brennan that found deliberately failing to protect incarcerated trans people from abuse or violence behind bars qualifies as cruel and unusual punishment. Activists say not much has changed. Now, they are working to change policies on both the federal and state level to allow trans prisoners to decide for themselves where they would feel safest being housed — or at least have their voice heard, even if prisons or independent decision-making boards still get to make the final call.
A 2007 study from the University of California, Irvine, found that incarcerated transgender people were 13 times more likely to be sexually assaulted than a random sample of incarcerated men. Fifty-nine percent of transgender prisoners reported having been sexually assaulted within a California correctional facility compared to just 4.4% of the incarcerated population as a whole.”Transgender women are not safe behind bars, period,” says Rodrigo Heng-Lehtinen, the incoming executive director of the National Center for Transgender Equality (NCTE). “Nobody should be in danger just because they are in government custody.”
In 1994, the US Supreme Court ruled on Eighth Amendment grounds that failing to protect trans people in custody is unconstitutional because it qualifies as cruel and unusual punishment. Farmer v Brennan centered on the alleged prison rape of a trans woman, Dee Farmer. She says only a few days after a transfer to FCI Terre Haute, a federal prison in Terre Haute, Indiana, she was raped by a cellmate. Prior to her incarceration, she had been living as a transgender woman, and argued that that fact, coupled with what court documents called the “violent environment and a history of inmate assaults” at the Terre Haute facility, meant that officials deliberately failed to protect her from harm by placing her there.
“He just kept repeatedly punching me all over,” she remembers, voice strong but still emotional more than 30 years later. “He started kicking me and I saw a knife in his tennis shoe. And it scared me so bad that I just stopped resisting. And he threw me on the bed and raped me.””A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment,” wrote Justice David Souter in the court’s opinion. While a jury ultimately found for the defendants in her case, her win at the Supreme Court is still hailed as a victory.
Activists like Dee Farmer are still fighting to institute national and state-level policies that would require a facility to house transgender, nonbinary or intersex people in the facilities where they feel safest, which would often mean according to their gender identity.”They should not feel that they have to settle for being assaulted or violence or being harassed or being abused,” she tells CNN. “Make it known that this is what is happening. Let your voice be heard.”
‘I never murdered anyone or anything like that’
Transgender people are disproportionately impacted by the criminal justice system to begin with, incarcerated at significantly higher rates than other groups.According to the NTCE’s last national US Transgender Survey conducted in 2015, the rate of incarceration for transgender people was double that of the nation-wide rate of incarceration, and about 10 times higher for Black transgender women.In many states, being transgender in public can lead to an arrest under so-called “Walking While Trans” laws: anti-loitering codes officially used to target sex workers, which in practice target primarily trans women of color regardless of whether they are sex workers, advocates say.
“I was certainly profiled” as a transgender woman on the street, says activist and transgender woman Bamby Salcedo. “It was always a thing. I would always be stopped for just walking to get groceries from the store.”Salcedo says she was first incarcerated at age 19, shortly after she began her transition process, and spent the next 14 years in and out of prison and jail for a variety of drug charges and petty theft charges, which she says primarily entailed shoplifting makeup and food.
“I never murdered anyone or anything like that,” Salcedo says. “Back in the ’80s there weren’t any services related to us. So anything we needed we got from the street, from our sisters. Participating in the street economy was the only way for us to live and survive.”Salcedo says the “inhumane” and “disgraceful” treatment of trans women in custody often starts immediately upon the intake process, a sentiment echoed by Jones and others.”We are told to get undressed in front of many men” including both corrections officers and other male prisoners, Salcedo describes, which “automatically creates this sense of fear for many of us and this sense… that it’s ok to sexually harass us and oftentimes sexually assault us.”Jones similarly spent a lot of time on the street as a teen, after becoming homeless when she says her mother kicked her out of the house after coming out as gay.”The streets were my best friend. That’s where I learned to become who I am today,” Jones says.But soon, for Jones too, life on the street turned to life behind bars.
Violence on the Inside
Once they are incarcerated, trans people are at significantly higher risk of violence. Trans prisoners are over nine times more likely than the prison average to be assaulted or abused by fellow prisoners, and over five times more likely to be assaulted or abused by facility staff, according to a national survey conducted by the National Center for Transgender Equality. According to the 2015 survey, within the year leading up to the survey, almost a quarter of transgender prisoners reported being physically assaulted by other people in custody or staff.Salcedo describes being raped in custody by a man who held a razor blade against her neck. On other occasions, she says she was beaten by other prisoners, including one time being beaten with a four-by-four piece of wood.”Every single day I was at least verbally attacked. Every single day,” she remembers.Formerly incarcerated trans women say that abuse often comes at the hands of correctional officers.
“They have this whole language they used toward the trans community,” Jones remembers. “They call us horrible names, they used to have us strip out in front of other inmates to embarrass us. They used to come and ransack our cells and take our make-up. They wouldn’t let us eat in chow halls if we were wearing any make-up at all.”Opponents of housing people in custody according to gender identity argue that men could falsely claim to be transgender so they are housed with women they can then assault. There is no evidence to support that this happens, while there is overwhelming evidence that trans women in men’s prisons are being sexually assaulted at exponentially higher rates than the general incarcerated population.”There is no evidence whatsoever to support this argument of false claims. It simply doesn’t happen,” Heng-Lehtinen says. “There are criteria for determining that someone really is transgender… It’s not as simple as simply declaring that you are transgender.”There is limited data available on whether incarcerated transgender women in women’s facilities are at a lower rate of sexual assault because so few transgender women are currently being incarcerated in women’s facilities. However, formerly incarcerated trans women speaking to CNN shared that they would feel more comfortable being strip searched by guards who are women — standard practice in women’s facilities — and would feel safer with cellmates who are women.
Laws on the books
In 2003, President George W. Bush signed the Prison Rape Elimination Act, or PREA, into law. It required the Department of Justice to develop federal rules for prisons and jails aimed at preventing and eliminating sexual assault and rape of prisoners. The DOJ issued those PREA Standards in 2012, which still stand today.Among them, the PREA Standards say that prison staff “must consider [housing assignments] on a case-by-case basis,” and not simply on the basis of a person’s “genital status.” The rules also say “serious consideration” should be given to an incarcerated person’s “own views regarding his or her own safety.”In practice, activists say those standards rarely lead to trans women ever being incarcerated in a women’s facility, despite their requests to be housed as such.”We’ve heard from so many trans women that prison officials will ask them if they have a penis during intake,” says Richard Saenz, a senior attorney with Lambda Legal. “And that’s how they decide where they should be housed.”
Saenz says Lambda Legal gets hundreds of letters and phone calls every year from trans people in prison who say they are being assaulted, abused and otherwise are unsafe in their housing situation specifically because they are transgender. .”[PREA is] still not enforced consistently enough,” Heng-Lehtinen says. “We need clearer and more detailed policy about exactly how to determine the housing assignment and it needs to be reevaluated periodically because circumstances change.””Best practice would be for a trans person’s housing to be re-evaluated every year. And if that’s not going to happen, it should be revisited every five years.”
The Department of Justice tells CNN that the Federal Bureau of Prisons “follows and enforces PREA standards and recognizes the importance of ensuring that inmates are and feel safe while in custody. Under current policy, a transgender or intersex inmate’s own views with respect to his or her own safety must be given serious consideration when BOP makes housing and programming assignments.”
Part of the problem, activists say, is that there is a “patchwork” of federal and state regulations that is often “exploited to ignore the transgender person who is unsafe,” explains Heng-Lehtinen.This patchwork includes the federal government’s Transgender Offender Manual, which the Trump Administration revised in 2018 to roll back protections for trans people in custody. It required officials “use biological sex as the initial determination” for housing placement, but it did not define the term “biological sex” — a controversial term for which there is not one standard set of medical criteria.
Despite the Biden administration’s assurances that they want to improve the quality of life for transgender Americans, it has not yet revised these Trump-era regulations or issued a new Transgender Offender Manual.
“We do expect the Biden administration to update and fix the Transgender Offender Manual,” says Heng-Lehtinen, who says the NCTE has been working closely with the Biden administration and Department of Justice to make these changes.Salcedo is now the CEO and President of Los Angeles-based TransLatin@ Coalition, an organization dedicated to improving the conditions of trans people in America. She says revising the Transgender Offender Manual is a good start, but not enough.”More than that, it’s important that we understand the reasons why trans people are incarcerated: we are criminalized because of who we are. An alternative to that is to provide trans people with the resources and support that we need, rather than… having to resort to survival which gets us put in prison.”
State level action
Individual states are also working on legislation requiring their state corrections facilities to house transgender people in the place they feel safest. That includes SB 132 in California, which Governor Gavin Newsom signed into law in September of 2020, effective January 1. This law requires transgender, non-binary and intersex prisoners to be housed in “a correctional facility designated for men or women based on the individual’s preference,” according to the bill text. It also requires all carceral staff to address prisoners by their correct gender pronouns and to search prisoners in a way consistent with their gender identity.But activists say this law is also unevenly implemented.
“Since I’ve been out, I’ve been hearing stories of trans people being assaulted …, being stripped out,” or strip searched, by male correctional officers says Jones, alleging that is happening because the trans women are still being housed in men’s facilities with officers who are men. “Even though SB 132 is now law, they are not implementing it right. They need to be held accountable for that. People are really under attack now.”
Jennifer Orthwein, a public interest attorney in California, and now a friend of Jones, filed a lawsuit on June 11 on behalf of a currently incarcerated trans woman, Syiaah Skylit, and the entire class of trans prisoners in similar situations in California. “As people have begun to assert their rights under SB 132, they have been met with severe retaliation, distressing delays, tactics intended to police their genders, dangerous rumors and misinformation, and systemic outing of transgender, nonbinary and intersex people,” Orthwein tells CNN.
The California Department of Corrections and Rehabilitation tells CNN, “CDCR has remained committed to providing a safe, humane, rehabilitative and secure environment for all transgender, non-binary, and intersex people housed in the state’s correctional facilities… All housing transfer requests are being reviewed by a multi-disciplinary team to include institution leadership, mental health professionals, and Prison Rape Elimination Act (PREA) Compliance Managers. We’ve also developed and provided specialized training to staff to ensure they are aware of laws and departmental policies and to give them the knowledge and tools they need when interacting with the incarcerated transgender community.”
According to the court filing, “Defendants and the California Department of Corrections and Rehabilitation (“CDCR”) have repeatedly tortured, sexually assaulted, threatened, and pepper sprayed Plaintiff Syiaah Skylit, a 30-year-old Black transgender woman.” Orthwein says Skylit has attempted suicide and gone on a hunger strike.
On the day the lawsuit was filed and CNN requested comment, Skylit was informed that her transfer request was approved and she will be transferred within the next few days, according to Orthwein.
“CDCR cannot comment on pending litigation, nor can we comment on a specific incarcerated person’s housing requests. But again, we take the health and safety of all those in our care very seriously and are ensuring thorough reviews are completed for each request.”
According to CDCR, out of 1,277 incarcerated individuals that identify as transgender, non-binary or intersex, 272 have requested gender-based housing transfer requests. 265 are from people being housed at male institutions requesting to be transferred to female institutions and seven are from people being housed at female institutions requesting transfer to a male facility.CDCR says that a total of 33 requests have been approved and 19 of those approved incarcerated people have already been transferred. They say the remaining 239 requests are “being evaluated.”
While both lawsuits and policy efforts are underway to ameliorate the conditions for transgender, non-binary and intersex people behind bars, advocates say lives are at stake.
“The need is urgent,” Heng-Lehtinen says. “There are trans people behind bars right now suffering.””We want people to understand that we are under no delusion that this bill will make prisons safe for anyone, including gender variant people,” Orthwein says. “We just hope that this bill makes it possible for transgender, nonbinary and intersex people to survive prison with as much of their mental and bodily integrity intact as possible.”