Most Americans can say that they’ve never had the pleasure of spending time in jail or prison. And we don’t really expect jails or prisons to be posh places, but we do expect them to keep those who end up there safe. Transgender Americans, on the other hand, face a different reality. Even a short jail experience, if you’re transgender, can be fraught with indignities, hostility, even violence or sexual assault.
The U.S. Supreme Court made it clear in Farmer v. Brennan that prison administrators who turn a blind eye to the sexual assault of transgender prisoners violate the Constitution. What the Court didn’t address was exactly how prisons and jails should go about keeping transgender prisoners safe.
A few enlightened prison experts have figured out that placement decisions shouldn’t be based on fixed rules about transgender people, such as the “genital rule” most prisons currently follow. Under this rule, a transgender inmate who has lived for many years as a woman is placed in a jail cell with other men, just because she hasn’t had genital surgery. And routine searches of transgender women are often carried out by male, rather than female, staff.
Imagine the risks these practices impose on transgender men and women. A 2007 study found that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent reporting being sexuallyassaulted.” (emphasis added).
Recently, the jail administrators at the county jail in Portland, Maine recognized the need to do something to protect transgender detainees and drafted a policy to guide those efforts. The Maine Civil Liberties Union and the ACLU LGBT Project, along with some help from Jennifer Levi at Gay and Lesbian Advocates and Defenders, were given the opportunity to comment on the draft and the result is a great success. Although there are aspects of it we’d change, the basic structure is exactly right.
It puts into place a Transgender Review Committee that takes into account gender identity (someone’s internal sense of maleness or femaleness) before classifying transgender inmates. Verbal and physical harassment are explicitly prohibited Transgender inmates are allowed to state their preference for whether they’re searched by male or female guards. Inmates can dress and use names or pronouns that fit their gender identity. It’s an extraordinary improvement over the practices in most other jails and prisons. Mainers should be proud.