LGBTQ individuals face a high risk of ending up in prison or jail, places that are often acutely dangerous. Police officers more often discriminate, profile, or exhibit bias against LGBTQ people, particularly those who are also poor or people of color. Often they face greater dangers than other prisoners, including physical abuse, sexual abuse, and the threat of solitary confinement.
In 2003, Congress passed the federal Prison Rape Elimination Act (PREA), a law that addresses the detection, prevention and response to prison abuse. This law led to publishing the National Standards to Prevent Detect and Respond to Prison Rape in 2012. These legally binding standards direct prisons and jails to pay special attention to protecting LGBTQ individuals and those that are gender nonconforming or intersex, and provide incentives for compliance. There are also some penalties, such as loss of federal funding, for failure to comply.
Accrediting organizations must also adopt and follow these standards to receive federal funds. Although PREA is supposed to be applied in local jails and police departments, there aren’t direct federal penalties to these agencies when they don’t comply. In some jurisdictions there are state laws that require compliance.
PREA and the accompanying standards do not provide a right to sue. Prisoners can file civil rights lawsuits based on constitutional and other violations, but these are often hard to win. However, if an agency fails to follow PREA, this may be persuasive evidence in court.
Prisoners’ rights are also protected under federal and state constitutions and can be enforced through civil litigation. Among these rights are are the right to be safe, the right to be free from cruel and unusual punishment, rights to privacy, the right to free expression and religion, the right to necessary medical care, and the right to equal access. These rights are more limited for prisoners than they are for those who are not incarcerated.
Right of Safety
One of the most critical rights for LGBTQ prisoners is the right to be safe from violence by other inmates, staff and correctional officers. This right is safeguarded by the Eighth Amendment’s protection against cruel and unusual punishment. A prison official can be liable for violating this right where he or she knows about but disregards an excessive risk to safety or health. When prisoners know that a particular prisoner is LGBTQ, they know that the prisoner is particularly vulnerable to abuse and should take steps to ensure that prisoner’s physical safety.
Right to Health Care
Relatedly, prison officials must also provide necessary health care under the Eighth Amendment. Decisions about what constitutes necessary medical treatment should be based on medical evidence rather than on finances. Gender dysphoria, for example, is considered a serious medical condition that should be treated under the Eighth Amendment. A prison cannot have a blanket ban against hormone therapy or surgery. Transgender prisoners are also supposed to have access to gender-appropriate personal effects if those personal effects are medically necessary according to a health care provider.
Solitary confinement is a real risk for LGBTQ individuals. Unfortunately prisons and jails often place LGBTQ prisoners in solitary confinement as a means of "protecting" them, even though it increases the risk of serious emotional or psychiatric disturbance. Whether this is an appropriate measure depends on whether there are feasible alternatives, the duration and the purpose. The segregation cannot be automatic and indefinite without considering alternatives.
Limited Right to Privacy
Prisoners’ rights to privacy are limited, but they do exist. Personal information such as your LGBTQ identity or HIV status is protected even in prison and should not be disclosed unless there is a legitimate purpose. Officials can conduct searches for a legitimate purpose but not just to harass an LGBTQ prisoner.
Recourse for Violations
If you believe your rights have been violated, you should notify an official, unless it would put you in physical or other danger. There may be deadlines to report, so you should try to act as soon as possible. Before filing a federal lawsuit, you need to try to settle a dispute using whatever grievance system a prison has in place. This is called exhausting your administrative remedies.
Only after you’ve exhausted administrative remedies can you file a complaint alleging a constitutional or civil rights violation by a person acting under color of state law. This can include a state prison guard or other official. Under U.S.C. section 1983, someone who acts under color of state law to commit a violation of someone’s constitutional rights can be liable for damages or injunctive relief. In general, you can’t expect to get a reversal of your conviction or release by bringing this type of suit. If possible, you should consult an attorney about your suit. Civil litigation can be extremely complicated and your case will likely be taken more seriously if you have legal representation.