Transgender individuals face statistically greater degrees of violence than other groups when they are incarcerated. Their lives are in serious jeopardy due to the threat of prison harassment, assault, and rape, not only from their fellow inmates, but also from staff. Often the discrimination faced by transgender people when trying to secure a job can create economic hardships that necessitate working within the street economy. This and over-policing places them at a higher risk of being imprisoned in dangerous conditions. The United States Constitution and the Prison Rape Elimination Act (PREA), a statute passed in 2003, provide a legal basis for claims by inmates and their advocates regarding the health and safety of transgender individuals held in prisons in the United States.
The Scope (and Limits) of the Eighth Amendment With Respect to Transgender Prisoners
The Eighth Amendment of the US Constitution requires prisons to provide you with adequate health care to address your serious medical needs as a prisoner. Failure to provide you with medical treatment or care can cause significant injuries or unnecessary pain, and also expose you to a substantial risk of harm.
Gender dysphoria is considered a serious medical need. Courts have determined that prisons must offer appropriate treatment to be in compliance with the Eighth Amendment. Unfortunately, many transgender prisoners are mistreated in prison, and cannot get the help of staff to obtain a diagnosis that would allow them to seek adequate care. So far, constitutional case law doesn’t give prisoners the right to specify a choice for treatment of gender dysphoria. Instead this decision is left up to the health care providers in prison.
What rights does the Eighth Amendment give you? You have the right to have decisions about your treatment to be based on medical rather than financial or other concerns. In many jurisdictions, the staff cannot simply deny you treatment, such as hormones, on the grounds that the treatment might expose you to harassment from others. However, some courts do balance security concerns with medical needs. Further, your treatment is supposed to be in accord with accepted medical standards. Failing to evaluate you for gender dysphoria or taking too long to evaluate you is a violation of the Eighth Amendment.
The Acceptable Standard of Care
The World Professional Association of Transgender Health (WPATH) Standards of Care have been recognized as a prevailing set of standards to use in treating gender dysphoria. These standards require you to be evaluated by someone experienced in treating gender dysphoria, and based on that medical care provider’s guidance, you may be permitted counseling, hormone therapy, certain commissary items, and in some cases surgery. You should also be permitted have gender appropriate clothing and other items that will let you present in a way that is consistent with your gender identity. It remains legally uncertain whether a prison is required to provide transgender prisoners with gender confirmation or sex reassignment surgery as part of their adequate care.
If possible, you should file written complaints and appeals to document your efforts to receive a diagnosis or obtain necessary medical care, and you should send copies of your requests to the prison’s health director. Officials at the prison must be aware that you have serious medical needs in order to be found in violation of the Eighth Amendment. The prison law library and copies of policies and standards like WPATH Standards of Care may help you present your case more effectively to staff and will give you an idea of what you need to document.
Prison Rape Elimination Act
The Prison Rape Elimination Act of 2003 was enacted to address issues of sexual harassment, assault and rape in prisons and other detention centers. In 2012, the Department of Justice issued the PREA Standards to implement the law. These standards include important protections for transgender prisoners, and facilities that don’t comply with the standards risk losing accreditation or funds. For example, prisons and jails are supposed to screen prisoners in the first 72 hours after intake to assess the risk that they will be subject to sexual abuse or victimization. This screening should take into account whether the person is perceived to be LGBTQ or gender non-conforming, and assign them to programs and housing with an eye towards protecting the most vulnerable.
You cannot sue prisons or their officials for violations of the standards, but you may be able to use documentation about a PREA Standards violation to show a violation of your other constitutional rights. While states can and have opted out of PREA, the standards may still be useful in those states for purposes of advocating for your rights.
Once you notify prison officials that you are transgender and have been threatened, the officials are required to take steps to protect you. Unfortunately, this can be a complicated and sensitive issue, particularly if the official is the person that has committed the sexual assault, rape, or harassment.
Other steps to take when possible include notifying staff both verbally and in writing of your gender identity, whether you’ve been victimized previously, and whether you think you are at risk. Copies of your complaints or grievances should also ideally be sent to somebody trustworthy outside of the prison system, your PREA coordinator, and the Inspector General. It is prudent to ask your criminal defense attorney for advice or a referral to an attorney with experience handling prisoners’ rights cases.