Featured Article
Article Title
The Present State of Housing and Treatment of Transgender Incarcerated Persons
Authors
Lauren K. Robinson, MD, MPH- Adjunct Assistant Professor of Forensic Psychiatry, Northwestern Feinberg School of Medicine, Chicago, IL
Juliette Dupre, MD, MA, MSc- Forensic Psychiatry Fellow, University of Toronto, Toronto, Canada
Ariana Nesbit Huselid, MD, MBE - Adjunct Assistant Professor of Psychiatry, University of North Carolina at Chapel Hill, Chapel Hill, NC
Shane Burke, MD- Child Psychiatrist at Meridian Psychiatric Partners, Chicago, IL
Abstract
The care and housing of transgender (TGD) incarcerated persons is a complex concern that is growing because of the increased recognition and diagnosis of gender dysphoria in society. To remain current in this evolving landscape, there have been updates to federal manuals and state guidelines regarding the medical care and housing of the TGD population. Since the publication by Glezer and colleagues in 2013, there has not been a comprehensive overview of current federal and state guidelines, and legal and other considerations on this topic. We provide an update with special consideration given to housing practices, safety, and access to care. A review of the literature shows that the World Professional Association for Transgender Health (WPATH) standards and Prison Rape Elimination Act (PREA) requirements are not uniformly implemented and enforced on a state level. In fact, some states have policies that are in direct conflict with federal requirements. The safety and equitable treatment of both TGD and cisgender populations is an important topic that merits attention. As new challenges emerge, an increase in federal enforcement and consistency is needed to ensure the humane treatment and protection of TGD inmates.
Keywords
correctional psychiatry; transgender; ethics; prisoners’ rights
Summary of Research
“‘Transgender’ (TGD) is an umbrella term that is used to describe individuals whose gender identity is different from their external sexual anatomy at birth….The term “sexual reassignment surgery” has been replaced with “gender affirmation surgery,” which is preferred because it focuses on how the treatment brings individuals’ external sexual characteristics into alignment with their gender identity, rather than “reassigning” something innate about the individual… Although only .5 to .6 percent of the adult population is TGD, TGD people are disproportionately represented in correctional settings… Among TGD women who were previously incarcerated in either a jail or prison, 47 percent reported victimization, defined as harassment and physical or sexual assaults from other inmates or staff. A quarter reported being denied health care” (p. 186-187).
“The new WPATH guidelines de-pathologize gender nonconformity and differentiate it from gender dysphoria. They draw attention to the concept of gender incongruence, a new term in the World Health Organization’s International Classification of Diseases and Related Health Problems, 11th Version (ICD-11). Whereas gender dysphoria requires clinically significant distress or impairment in functioning, gender incongruence points to the evolving understanding that diverse gender identities are not inherent states of ill health or dysfunction….The main pillars of treatment for gender incongruence remain gender-affirming hormonal and surgical treatments….Some TGD persons seek gender-affirming treatments, while some do not and may wish to transition without medical interventions” (p. 188).
“The previous recommendation that a person live in a gender concordant manner publicly, known as social transition, for a period of 12 months prior to accessing GAMST is also changed; there is greater recognition that such a social transition may not be possible and should not be a barrier to care. This is especially salient in a correctional environment where living as, for example, a TGD woman housed in a male institution may pose safety concerns….The guidelines recommend TGD individuals who are institutionalized, including in carceral settings, be afforded treatment without delay and that people with gender dysphoria should be provided “medically necessary surgical treatments that contain similar elements provided to persons who reside outside institutions…
...Most states had a policy that specifically considered TGD inmates, and of those that did, the policies generally recognized the diagnosis of gender identity disorder or gender dysphoria. The states that did not have a specific TGD policy recognized the Prison Rape Elimination Act, with its provisions for the protection of TGD prisoners from sexual violence. At the time of writing, 21 states had formally expanded access to care for TGD inmates” (p. 190).
“The matter of housing and access to care in the TGD incarcerated population is a complex topic that will continue to evolve alongside the evolving standards of decency in our society. Despite updates in care standards and U.S. prison manuals regarding policies related to TGD inmates, there is a lack of uniformity, and enforcement of best practices varies widely across the United States. The ethics concerns of safety, housing, and equity are important, and proposed solutions continue to be debated. Safety concerns are bidirectional with regard to TGD incarcerated persons and the general population; although we focus on the question of safety of the general population from the TGD individual, the TGD population is at a much higher risk of victimization” (p. 194).
Translating Research into Practice
Gender-affirming recommendations:
“There are expanded recommendations for gender-affirming practices in institutions, including the use of chosen names and pronouns, the availability of gender affirming hygienic and grooming supplies, and the assignment of housing based on preference, gender identity, and safety considerations rather than on external genitalia or assigned gender…
…TGD persons should not be placed in segregation or isolation solely based on their gender identity…LGBT inmates should not be segregated into separate facilities, as this separation can be stigmatizing, lead to a decrease in access to programming and recreation, and in some cases be synonymous with solitary confinement, which causes psychological distress and has been recognized as a form of inhumane punishment” (p. 188).
“Safety is an important factor in housing decisions, especially because TGD inmates are at considerably higher risk of physical and sexual violence than the general population… Overall, any delay in accessing gender-affirming treatments must be carefully weighed against the risks of delaying such treatment, including increased distress” (p. 191-192).
Tests & Services:
“The STATIC-99R, one of the most widely used tools, is recommended only for use in adult males… advocates for treatment [emphasize] strengths as opposed to deficits and works within a framework that considers individuals’ exposure to trauma” (p. 193).
“Expanding educational services to staff is fundamental to enacting such changes. Ultimately, expanding services and protections of the TGD population may ensure the humane treatment of all incarcerated persons” (p. 194).
Other Interesting Tidbits for Researchers and Clinicians
History, Court Cases, & Care:
“The diagnosis of gender identity disorder was excluded as qualifying as a disability in 42 U.S.C. § 12211. The court also held that Kesha Williams, a TGD woman imprisoned in Virginia in a men’s facility, had been discriminated against and that the prison’s blanket policy of housing inmates by genital status was in direct contravention of federal regulations under the Prison Rape Elimination Act that require determination be made on a case-by-case basis. Justice Quattlebaum dissented and argued that gender dysphoria was similar enough to gender identity disorder to be exempt from the ADA. He also argued that Sheriff Kincaid was not grossly negligent, as she demonstrated some degree of care in attempting to balance housing decisions with safety concerns of cis-gendered female inmates and correctional staff. In Rivera v. Bonner,27 the Fifth Circuit held that while PREA was a helpful guideline, it did not establish a constitutional obligation for institutions to conform their policies and training to PREA…
…The case of a New Jersey trans woman impregnating two inmates garnered significant media attention and raised important considerations for such housing decisions, including the realities of consensual sexual interactions in such facilities, the difficulties of discerning consent in institutional settings, and the lack of available condoms in U.S. prisons and jails…
…Despite changes to formal policy, access to care still faces considerable barriers in practice, especially regarding surgical interventions. Cristina Nichole Iglesias was one of the first federal inmates to access gender-affirming surgery after the Federal Bureau of Prisons was ordered in 2022 to secure her surgery following three years of litigation by Ms. Iglesias” (p. 190).
“...States vary considerably in their implementation of the housing and safety standards, without recognizable patterns” (p. 191).
Additional Resources/Programs
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