Author: Shijuade Kadree, Esq., MPH, Founder and Principal of Compass Strategies Consulting
The ABCs of the LGBT Community
There is an increasing prevalence and frequency of discourse about the lesbian, gay, bisexual, and transgender (LGBT) community, including discussion of the community’s basic needs and treatment, as well as ways to engage, serve, and affirm community members. It is important to ground oneself in the appropriate terminology when discussing the LGBT community. Broadly speaking, every person has a sexual orientation and a gender identity. Sexual orientation refers to who is someone physically, emotionally or romantically attracted to. Some examples of a sexual orientations are lesbian, gay, and bisexual (LGB)l individuals. Gender identity describes how an individual identifies along the gender spectrum of “male, female, a blend of both or neither.” The latter group of community members is collectively often referred to as the transgender or gender non-conforming (TGNC) community. The community of LGBT individuals is vast and cross-sectional, and has intersections with every other demographic, such as race, ethnicity, class, mental health status, political affiliation, and disability. Consequently, it is important to note that the LGBT community is not monolithic, and individuals within the community may describe themselves or their beliefs, very differently from each other
As it pertains to incarcerated individuals, based on the National Inmate Survey of 2011-12, data show that LGB individuals are incarcerated at three times the rate of the general public. However, studies have also shown that approximately 16% of people who identify as transgender, or 1 in 6 TGNC individuals, has been incarcerated. Given those stark rates, this article will specifically focus on incarcerated individuals who identify as transgender, that is individuals whose gender identity does not match their sex assigned at birth, and their interaction with correctional facilities.
Challenges presented to TGNC incarcerated individuals
Being an incarcerated TGNC individual means they are likely subjected to daily humiliation, misgendering and experience a significantly increased risk of physical and sexual abuse. A study in California determined that TGNC people were up to 13 times more likely to be the survivors of sexual assault while incarcerated, when compared to their non-TGNC counterparts. According to the National Center for Transgender Equality, the trauma, and physical and emotional harm experienced by sexually assaulted inmates not only hurts the assault victim and their family, but there are detrimental impacts and costs to the criminal justice system as well. In addition, TGNC people may also face increased hardships trying to receive medically-necessary, gender affirming healthcare services while incarcerated.
These hardships are compounded by laws, ordinances, and regulations governing the respective department of corrections, which may or may not have guidance about how to best treat TGNC people. For example, many jurisdictions lack best practices about whether or not TGNC individuals should be housed in sex-segregated facilities. Often times correctional officials in sex-segregated facilities, inappropriately using the Prison Rape Elimination Act as justification, will remove the TGNC individuals from the general population and place them in protective custody or solitary confinement. This is often considered punishment based on someone’s identity and the vulnerability of attack risk that this identity poses. Doing so can have long-term, damaging psychological effects on the incarcerated individual. This segregation can even increase the likelihood that the person will not receive appropriate care in an emergency, such as the case with Layleen Polanco, a transgender woman who died from complications of epilepsy, while in punitive segregation on Rikers Island in New York.
What you can do about it
As noted above, there is no consistent guidance from the National Institute of Corrections on how to best care for and protect LGBTQ inmates. However, this void provides an opportunity for leaders and administrators in correctional systems to put in place proactive measures and policies to ensure the affirming and safe treatment of incarcerated TGNC individuals. Suggested recommendations include:
- Providing cultural competency or sensitivity training for facility staff to learn more about the LGBT community, including the needs of TGNC individuals, understanding basic language, terminology, and identity.
- While TGNC individuals in sex-segregated facilities are often placed in solitary confinement for their safety, and individualized risk assessment should be conducted on a case by case basis. Where possible, these individuals who must ultimately be placed in protective custody for their safety should still have access to the same educational, employment, fellowship, and recreational activities as individuals in the general population.
- Work with the local corrections agency to determine if housing individuals according to their gender identity, rather than their sex assigned at birth, or if segregated housing solely for LGBT individuals, is feasible. Examples of facilities where there has been successful are in Illinois, Maine and Washington, D.C.
- Review the appropriate use and application of the Prison Rape Elimination Act as it pertains to housing TGNC individuals. The Act’s regulations prohibit placement of TGNC individuals in sex-segregated facilities (rather than in one that aligns with the individual’s gender identity), only based on biological traits, without a consideration of additional factors. A review of your facility’s policies on this alone might significantly reduce some of the emotional, physical, and mental trauma incarcerated TGNC individuals face by being in sex-segregated settings.
- Ensure that your facility has an explicit nondiscrimination policy that prohibits the maltreatment of any incarcerated person based on the real or perceived status of their sexual orientation or gender identity.
- Institute a “gender-neutral commissary list,” which means that a variety of grooming and personal care products that might typically be considered appropriate for one sex, are available. Doing so provides a simple, but impactful way, for TGNC individuals to feel safe and seen while incarcerated.
In brief, correctional facilities may not be
able to address the larger issues of societal discrimination against TGNC individuals,
but they can provide safe, humane and affirming settings, which can support long-term
rehabilitation for them while incarcerated. While laws, ordinances, and
regulations lag, there are numerous intermediary steps that can be taken by
prison officials to implement practices that will decrease the violence,
harassment, and abuse that many TGNC individuals face while incarcerated.
 “Sexual Orientation and Gender Identity Definitions,” The Human Rights Campaign. https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions. Last accessed: September 13, 2019.
 “Incarceration Rate of LGB People Three Times the Rate of General Population,” The Williams Institute. https://williamsinstitute.law.ucla.edu/williams-in-the-news/incarceration-rate-of-lesbian-gay-bisexual-people-three-times-the-general-population/. Last accessed: September 23, 2019.
 “Transgender Incarcerated People in Crisis,” Lambda Legal. https://www.lambdalegal.org/know-your-rights/article/trans-incarcerated-people. Last accessed: September 14, 2019.
 Right now, when a child is born, they are classified as male or female based on their biological traits. This is commonly referred to as “sex assigned at birth.”; see also, “Transgender FAQ,” GLAAD, https://www.glaad.org/transgender/transfaq. Last accessed: September 13, 2019.
 Supra, note 4.
 “LGBTQ People Behind Bars: A Guide to Understanding Transgender Prisoners and their Legal Rights.” The National Center for Transgender Equality. https://transequality.org/sites/default/files/docs/resources/TransgenderPeopleBehindBars.pdf. Last accessed: September 9, 2019.
 “FAQ: Answers to Common Questions About Mistreatment of TGNC Incarcerated People,” Lambda Legal. https://www.lambdalegal.org/know-your-rights/article/trans-in-prison-faq. Last accessed: September 11, 2019.
 “Cause of Death Revealed for Transgender Woman who Died at Rikers Island,” CNN. https://www.cnn.com/2019/07/31/us/layleen-polanco-rikers-island-autopsy/index.html. Last Accessed: September 11, 2019.
 “Policies to Increase Safety and Respect for Transgender Prisoners: A guide for agencies and advocactes,” The National Center for Transgender Equality. https://transequality.org/sites/default/files/docs/resources/PoliciestoIncreaseSafetyandRespectforTransgenderPrisoners.pdf. Last accessed: September 21, 2019.