Prison transfers for transgender inmates in California but progress remains chaotic in the world

As a new law in California prompted requests of prison transfer from transgender inmates, measures for improving their security and dignity is still a work in progress to find the right solution.

Transgender inmates face more risks to be sexually assaulted in prison

Since a Senate bill to respect gender identity during incarceration took effect in 2021 in California, more than 261 transfers have been requested, according to California Department of Corrections and Rehabilitation as reported by the Los Angeles Times.

Part of the Federal Prison Rape Elimination Act of 2003, which aimed at reducing sexual violence in prison, California’s bill now allows transgender, nonbinary or intersex inmates to be housed in a male or female prison, regardless of anatomy. Connecticut and Massachusetts had already passed bills similar to California’s in recent years.

Already 1 in 4 of the Californian prisoners who self-identified as transgender, nonbinary or intersex have already requested for a transfer. So far, 97% of them applied for a transfer in a women’s facillity.

If only 1% of inmates self-identify as a transgender, nonbinary or intersex person, statistics may misrepresent the reality of the cells’ population.

Transgender people can hide their gender in fear of consequences. If statistics are scarce, support groups are clear on the fact that transgender inmates are more likely at risk of facing sexual assaults.

For instance, in April 2021, lawyers of a transgender inmate in the state of Georgia claim she was sexually assaulted and abused 16 times, including 3 instances involving prison staff, in less than 2 years.

But as a consequence, not self-identifying as transgender, non-binary or intersex could also prevent them from being transferred to a safer place.

During recent years, countries or states tried to adapt differently in providing more security to transgender convicts.

In Canada, the first transgender inmate was transferred in 2017. And since 2018, the Correctional Service of Canada allowed transgender offenders to be placed according to their self-identified gender rather than their anatomy or identification documents.

In some Australian states, prisoners are supposed to be put in facilities according to their self-identified gender. It is the case in Victoria and New South Wales, where Melbourne and Sidney are located. However, in Western Australia, no formal rule is applied and the decision is often based on whether transgender women have gone through a sex surgical intervention.

In Britain, a transgender woman dangerous for other women led to adaptations

In 2011, a British policy stated that inmates in England and Wales were to be located according to their legally recognized gender.

The Gender Recognition Certificate, a document testifying that individuals can be legally recognized with their acquired gender, or proof of sufficiently advances in the gender reassignment process, were necessary for a transfer in another prison.

But in 2015, two women who died in male prisons brought the British authorities to update the guidelines to be more open about a gender self-identification.

However, transfer protocol was shaken by Karen White’s controversial case in 2017.

Karen White was a self-identified woman still legally considered as a man who didn’t have a gender reassignment surgery yet. She was a convicted pedophile and waited for a trial for sexual offense against women. But she sexually assaulted 2 other female inmates in only three months of detention in a women’s prison. She was later considered by the judge as a sexual predator for women and children. The Ministry of Justice apologized for the placement.

As such, a British female-only prison dedicated a wing to transgender women in 2019, with 3 inmates who could pose a threat to other prisoners.

Are exclusive facilities acceptable forms of segregation for the sake of safety?

In France, a bill passed in 2016 allowed someone to legally change one’s official gender identity without having to go through a sex reassignment surgery. It could ease de facto transgender women to be housed in women’s prison.

However in 2019, transgender women housed in a specific unit including individual cells and showers in the men’s prison of Fleury-Mérogis sent 610 letters to French legislators. They rejected a form of isolation and requested the same access to activities as men’s, accepting the possibility to mix genders.

Since 1985, the Los Angeles County Jail has a specific unit, known as the K6G unit, where transgender women and gay men are incarcerated together, apart from the other men of the building.

But for the California Department of Corrections and Rehabilitation, establishing a facility solely for housing transgender people would be a violation of the national Prison Rape Elimination Act. A 2009 Commission report recommended that “lesbian, gay, bisexual, transgender, or other gender-nonconforming inmates are not placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, or gender identity.

This would in fact be a form a segregation.

Sharon Dolovich, Professor of Law at the UCLA School of Law who studied K6G and published the article Strategic Segregation in the Modern Prison in 2011, admitted that “with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation“.

However, in lights of this “surprisingly safe” carceral space, “if the vulnerability to rape of gay men and trans women behind bars represents such a circumstance, […] a segregationist approach may at times be justified“.

What is the best answer, then?

The various examples and situations that legislators have to face still show that providing more dignity and security to transgender people is still a work in progress.

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