Student Identification Number: 1118378 Feminist Legal Theory Professor Martha Chamallas Imprisoned Twice: The Legal Rights of Transgender Inmates I: Introduction From early childhood a transgender person feels “incarcerated” in a body that does not match their true self. In addition to feeling trapped in their own bodily “prison”, transgender persons in the correctional system are doubly imprisoned when placed in a ward in which they do not belong. The United States prison system commonly employs the practice of classifying transgender prisoners based on their genitalia alone, irrespective of the person’s gender identity. 1 This method of prisoner placement poses a heightened risk of harm to pre-operative transgender women who are the most likely to occupy the bottom rungs of the male prison hierarchy due to their feminine characteristics. This method of placement creates a heightened risk of physical injury and sexual abuse from transphobic prisoners and guards. 2 Transgender inmates who are the targets of such abuse must also overcome a difficult burden of proof in order to obtain legal remedies for such harms. Thus, while one branch of the government poses a threat of harm to transgender prisoners, another branch makes it extremely difficult to obtain relief.3 Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 522-523 (2000). See infra p. 10. 2 Id. and see infra pp. 14-17. 3 Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1237-1238 (2004). 1 1 In this paper I will address whether genitalia-based placement of transgender inmates constitutes a violation of the Eighth Amendment’s protection against cruel and unusual punishment. I take the position that genitalia-based placement puts male-tofemale transgender inmates at a heightened risk of physical harm and sexual assault. This method of placement deprives transgender inmates of their fundamental right against excessive violence and inhumane conditions. The Supreme Court has declined to adopt a standard which would make redress readily available to transgender inmates. Therefore, this problem should be resolved through the Congressional adoption of a policy similar to the Prison Rape Elimination Act of 2003. 4 The PREA forces prison officials to be held accountable for prisoner rape by requiring them to maintain internal records of rape incidents within their facilities and submit them for analysis; thus urging the implementation of preventative methods of reform. 5 The Act was created in response to the overwhelming incidence of inmate-on-inmate rape in correctional facilities. 6 A similar act, tailored to protect transgender inmates would motivate prison officials to place transgender inmates according to their gender identity in order to avoid high incidents of transgender-based violence in their jurisdictions. Additionally, the forced reporting of transphobic-based violence would make prison officials aware of situations which pose the greatest risk of harm to transgender inmates. Finally, the withholding of federal funds would force states to respond to the need for the special protection of transgender inmates. 4 5 The Prison Rape Elimination Act, 42 U.S.C. § 15601 (2003). David K. Ries, Duty to Protect Claims by Inmates After the Prison Rape Elimination Act, 13 J.L. & Pol’y 915, 959 (2005). 6 Kevin R. Corlew, Congress Attempts to Shine a Light on a Dark Problem: An In-Depth Look at the Prison Rape Elimination Act of 2003, 33 Am. J. Crim. L. 157 (2006). 2 Gender has always been an inextricable part of the law. American jurisprudence views gender as binary; that is, a person is only recognized as male or female. 7 Historically, a person is fanatically assigned a gender according to the binary categories of “male” or “female”. The longstanding pervasive sense of gender stereotyping within the law is reflected in the language of an 1873 Supreme Court decision of Bradwell v. Jones 8: The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity which belongs to the female sex evidently unfits it for many occupations of the civil life. 9 These categories have repeatedly been reinforced as separate and distinct. As acknowledged by Katherine Franke, “biology and genitals seem to operate as false proxies for the real rules of both general attribution and sexual identity in our culture.” 10 Generally, the law does not recognize any “middle ground” where a third category of persons may exist. The denotation of one’s sex governs in legal matters including inheritance, succession to title and eligibility for certain types of employment. People are expected to act in a way that adheres to their assigned gender. Society and the law are both structured to reward people who conform to their assigned gender and punish people those who Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 505-506 (2000). 8 Bradwell v. Illinois, 84 U.S. (16 Wall.) 130, 141 (1873). 9 Id. 10 Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Desegregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 40-41 (1995). 7 3 “deviate” from their proper gender roles. Stated succinctly; “while the law draws lines, a [transgender] crosses lines”. 11 Transgender people represent a breakdown of this binary system of gender assignment. As such, many transgender people find themselves “legal outsiders”; a result of a failure of the legal system to recognize and establish the rights of people who can not be categorized within the two established biological sexes. 12 In the first portion of this paper I will define the term “transgender” including the various individuals it encompasses, the struggles which are unique to these individuals and where transgender people “fit” in terms of American jurisprudence. Secondly, I will address the issues surrounding transgender inmates, including prisoner placement, the nature of the prison hierarchy and the position transgender persons occupy in the hierarchy. I will clarify the Supreme Court’s “deliberate indifference” standard which is used to determine the liability of prison guards accused of Eighth Amendment violations. I will illustrate the current legal standards and administrative policies which place transgender inmates in an extremely disadvantageous position with limited means of remedy. In the last portion of this paper I will explain how the adoption of a policy similar to the Prisoner Rape Elimination Act of 2003 will help to prevent violence against transgender inmates and assist future transgender plaintiffs whose rights have been violated. Finally, I will describe how the United States should model the adoption of such policies based on Australia’s Transgender Discrimination Act, which has served to prevent transphobic-based inmate violate. 11 Debra Sherman Tedeschi, The Predicament of the Transsexual Prisoner, 5 Temp. Pol. & Civ. Rts. L. Rev. 27 (1995). 12 Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Desegregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 40-41 (1995). 4 The term “transgender” is a highly inclusive term which encompasses any person whose gender identity differs from the sex they were assigned at birth. In contrast to one’s anatomical sex, a person’s gender identity is defined as their chosen gender role expression; how they speak, dress, act and most importantly who they “feel” they are. 13 The term includes transsexuals who identify as female-to-male (FTM) or male-to-female (MTF), cross-dressers, and many other subgroups of gender-variant people. Transgender persons include both individuals who chose to alter their bodies to match their gender identity through hormones and surgery, and persons who do not. 14 A recurring problem in cases involving transgender litigants seems to be how much recognition the court is willing to give the person’s subjective gender identity. 15 The courts have tried to resolve this issue of “gender ambiguity” by referring to previously established legal definitions of gender. 16 However, transgender people fall outside the long-standing rigid dichotomy of male and female, thus frustrating the law’s ability to create a formula for categorization. 17 This frequently results in a transgender person being “hammered” into a category in which they do not belong. For example, in Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999), the Court held that Christie Lee Littleton, a post-operative male-to-female transsexual, was correctly classified as male because her chromosomes remained the same, despite having undergone male-to-female surgery and hormone treatment. 18 13 Shannon Minter, Do Transsexuals Dream of Gay Rights? Getting Real About Transgender Inclusion in the Gay Rights Movement, 17 N.Y.L. Sch. J.Hum. Rts. 589, 589-590 n.4 (2000). 14 Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 522-523 (2000) 15 Infra pages 14-15. 16 Littleton v. Prange, 9 S.W. 3d 223, at 230-231 (Tex. App. 1999) . 17 Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1213-1214 (2004). 18 Littleton at 230-231. 5 Historically, courts and scholars have equated transsexualism with “gender dysphoria”; a mental disorder that is categorized by a feeling of being “trapped” in a body that is incompatible with one’s real gender.19 In the majority opinion of Farmer v. Brennan, 511 U.S. 825 (1994), Justice Souter adopted this “medicalized approach” by quoting the definition of transsexualism directly from the 1989 Encyclopedia of Medicine. 20 This definition stated that a “transsexual is one who has a rare, psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex; and who persistently seeks permanent change.” 21 Persons who are categorized by the DSM-IV as gender dysphoric display a strong, persistent cross-gender identification which is not motivated merely by the “perceived cultural advantages of being the other sex”. 22 The Court’s adaptation of this definition reinforced the perception that a person whose gender was non-conforming to their anatomical sex was sick and required specific treatment in order to be “cured”. In response to this medicalization, people who considered themselves gender nonconformists began to resist the stigma of being “disordered”. 23 Such persons argued that the medical definition of “transsexual” contained language which was non-descriptive of their chosen gender identity; for example, transsexuals were defined as “afflicted” and “suffering”. 24 Instead, transgender people wanted to be viewed as mentally sound and capable individuals. As a result, people who wished to break away from these stereotypes Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders [DSM-IV], 302.85, Gender Identity Disorder in Adolescents and Adults, (1994). 20 Farmer v. Brennan, 511 U.S at 829 (quoting American Medical Association Encyclopedia of Medicine 1006 (1989)). 21 Id. 22 Id. 23 Dean Spade, Resisting Medicine, Re/Modeling Gender, 18 BERKELY WOMEN’S L.J. 15 (2003). 24 Jason Cromwell, Transmen & FTMs: Identities, Bodies, Genders & Sexualities, 19. (Urbana and Chicago: University of Illinois Press), (1999) 19 6 began to label themselves “transgender”, signifying a departure from the medical prognosis associated with the term transsexual. In contrast to transsexualism, the term “transgender” denotes a focus on selfidentification; rather than biology. The term describes persons who do not wish to have their non-conforming gender identity viewed principally as a medical condition. 25 A transgender person may utilize medical and psychological treatments in order to achieve their true gender identity, however, the may also choose to live their life as their chosen gender without utilizing any medical treatments. In other words, “there is no one way to be trans.” 26 There are, however, many transgender persons who are forced to deal with feelings of gender dysphoria on a daily basis. In order to seek relief from gender dysphoria, many transgender individuals choose to begin living their life as their true gender. This process is known as “transitioning”. Transgender transition is a highly individualized process; some people require various surgical procedures and hormone therapies, while others require no medical intervention at all in order to effectuate the permanent sex change. 27 Gender non-conforming persons face a variety of discriminations when they choose to live their life as their true gender. The first and often most damaging occurrence of rejection begins during childhood. As soon as a child expresses their interest in clothing or hobbies associated with the opposite gender they often face negative reactions from their family and peers. These reactions may range from subtle 25 26 Id. at 50. Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1218 (2004). 27 Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 509-511.(2000) 7 shaming to physical reprimand and other forms of discrimination and violence. Consequently, many transgender youths are eventually expelled from school or are compelled to leave due to constant harassment. 28 At home, transgender youth often face abuse from their families. As a result, many run away or are thrown out of their homes. 29 Transphobic motivated violence, discrimination in the employment sphere, and low earning potential compound to place transgender persons at a disproportionately higher rate of poverty and homelessness. 30 Due to the fact that homeless shelters often house individuals based on gender segregation, transgender persons are often forced to live on the streets where their likelihood to engage in criminal activity increases exponentially. 31 Moreover, as a means of obtaining money to undergo costly sex reassignment surgeries and hormone therapy, many transgender individuals turn to prostitution and illegal drug trade.32 These factors push transgender persons into positions of desperation and criminal activity, thus increasing the likelihood of a transgender person’s arrest and incarceration. 33 There is limited statistical information regarding the exact population of transgender prisoners. The limited information is likely the result of concentrated transgender populations in certain cities and particular regions of the country. Over two decades ago a San Francisco prison official estimated ten percent of the prison’s Dean Spade, “Compliance is Gendered: Transgender Survival and Social Welfare.” at 11. Transgender Rights, eds. Paisley Currah, Shannon Minter, Richard Juang (2006). 29 Id. 30 Sydney Tarzwell, The Gender Lines Are Marked With Razor Wire, 38 Colum. Human Rights L. Rev. 167, 173-174 (2006). 31 Id. 32 Id. 33 Child Welfare League of America & Lambda Legal Defense & Education Fund, Out of the Margins: A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth in Care, 80-101 (2006), http://www.cwla.org/programs/culture/outofthemargins.pdf. 28 8 population was some form of transgender.34 During the same time period, a physician at Riker’s Island in New York City estimated that out of every sixty inmates “three or four” were transgender.35 Based on the available statistics, the transgender prison population was estimated to be in the low thousands. 36 Another study conducted by the San Francisco Department of Public Health in 1997 determined that only 3% of U.S. adults are or have been incarcerated. In contrast, 67% of the MTF population has a history of incarceration; nearly a third of which had been jailed in the past year. These results indicate that transgender persons, as a population, are being incarcerated at a higher rate than African-American males. 37 The majority of research regarding transgender persons in the prison system is focused on transgender women, that is MTF inmates, who are housed in male facilities38 This focus on transgender women may be due to the fact that transgender men frequently chose to retain their female genitalia permanently due to diminished success rates and heightened expense of phalloplasty (FTM surgery), in contrast to vaginoplasty (MTF surgery). 39 Furthermore, even if a post-operative transgender man is placed in a male facility that corresponds with his gender identity, he may still face the risk of serious harm due to the fact that his former gender will likely be apparent to others based upon his presumably less masculine appearance. Moreover, these cases are likely to be 34 35 Rosenblum, supra note 1, at 517. Id. 36 Katrina C. Rose, When is an Attempted Rape Not Rape? When the Victim is a Transsexual, 9 Am. U.J. Gender Soc. Pol’y & L. 505, 510 (2001). 37 Emily Alpert, Gender Outlaws: Transgender Prisoners Face Discrimination, Harassment and Abuse Above that of the Traditional Male and Female Population, IN THE FRAY MAGAZINE, Nov. 21, 2005. 38 Rosenblum, supra note 1, at 512-513. 39 The overwhelming amount of information regarding transgender inmates is focused on MTF prisoners housed in male facilities. I could not find any cases which addressed issues arising from FTM inmates being housed in female facilities. This could be due to the fact that FTM’s are much less likely to be harmed by women and are also not considered a “sexual threat” due to the fact that they frequently do not possesses male genitalia. See Crosby v. Reynolds, 763 F. Supp. 666, (D. Me. 1991), infra page 20. 9 documented as male-on-male inmate violence, rather than transphobic-based violence. 40 The discrepancy in research may also be due to the difference in social construction within female correctional facilities as opposed to male facilities. In male prisons, the social hierarchy consists of gangs in which “strong” inmates dominate “weak” inmates. Conversely, in female facilities, the social groupings tend to resemble “play families”, which yield lower incidents of violence.41 Finally, this essentially male-centered study of transgender inmates may be a result of a male bias in the perspective of researchers. 42 Feminist scholar John Stoltenberg suggests that male researchers are more intrigued by the concept of men who “willingly” surrender their masculinity, than women who take on male traits. 43 The complex problems transgender persons are confronted with in everyday life are exacerbated after their imprisonment. A transgender person is placed into a system which contains “hyper” gender segregation and limited resources for support. Violence is exercised against persons who do not conform to their anatomical gender (“transphobia”). As such, transgender inmates are usually singled out and become the targets of assault. 44 A transgender person is first exposed to these elements during pre-incarceration processing. During this process, prison officials determine whether the individual will be placed in a prison for men or women. At present, prison administrations primarily employ “genitalia-based placement”. 45 Under this policy, transgender inmates are 40 Alexander L. Lee, Nowhere to Go But Out: The Collision Between Transgender & Gender-Variant Prisoners and the Gender Binary in America's Prisons, 26-28, Sylvia Rivera Law Project, (2003). http://srlp.org/alex%20lees%20paper2.pdf. 41 Id. at 527. 42 Id. at 512-513. 43 John Stoltenberg, Refusing to Be a Man , 28 (Penguin USA/Meridian, 1990) 44 Alexander Lee, Gendered Crime & Punishment: Strategies to Protect Transgender, Gender Variant & Intersex People In America's Prisons, 4 GIC TIP J. 1, 4 (2004) 45 See Rosenblum, supra note 1. 10 assigned to male or female prisons on the strict basis of their genitalia; irrespective of how long they have identified or lived as the opposite gender. The effect of genitalia-based placement on transgender persons has proved to be harmful, especially in cases regarding MTF inmates housed in male prisons. The placement of a transgender woman in a male prison frequently results in harassment, rape and abuse by both inmates and prison guards. 46 In the past thirty years, prison reform litigation has served to establish the rights and protections of prisoners under the law. Such reform has established that “prison inmates do not shed all fundamental protections of the Constitution at the prison gates”. 47 Protection against inmate violence and inhumane conditions is considered a fundamental right retained by incarcerated persons. The Supreme Court has explicitly stated that although the Constitution does not mandate comfortable prisons, it does not permit inhumane ones. 48 The Eighth Amendment protects prisoners from the infliction of cruel and unusual punishment. Generally, cruel and unusual punishment has been classified as the unnecessary and wanton infliction of pain that is totally without penological justification. 49 However as stated previously, transgender persons seem to fall outside of the typical scope of the law. In regard to the Eighth Amendment, what constitutes cruel and unusual punishment against a transgender inmate, may not pose any unnecessary harm to a “normal” inmate (one whose gender corresponds with his anatomical sex). A prime example of this “double standard” of protection is the practice of genitalia-based 46 47 48 49 Farmer v. Brennan, 511 U.S. 825, 832 (1994). Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999). Farmer v. Brennan, 511 U.S. 825, 832-834 (1994). Estelle v. Gamble, 429 U.S. 97, 103 (1976). 11 prisoner placement. A transgender inmate is forced to bear the unique burden of being the only prisoner who does not identify with the gender of the rest of the prison population. The Eighth Amendment was designed to provide redress for the most deplorable abuses. However, it falls short of demanding safe placement and protection for transgender inmates, despite the high incidence of violence that attaches to their nonconforming gender status. 50 Farmer v. Brennan, represents the only time the United States Supreme Court has addressed the rights of transgender inmates. 51 Farmer served to establish the current legal standard for Eighth Amendment complaints against prison officials based on conditions of confinement. The plaintiff, Dee Farmer, a transsexual MTF, was serving a twenty year federal sentence for credit card fraud. At the time of her imprisonment, she was a pre-operative transsexual who had undergone unsuccessful “black market” surgery to remove her testicles. Furthermore, she displayed obvious feminine attributes due to silicone breast implants, hormone therapy and her chosen attire.52 Despite these traits, Ms. Farmer was categorized as male and placed in an allmale prison, in accordance with the genitalia-based placement policy of the Federal Bureau of Prisons. Within nine days of Ms. Farmer’s placement in the general population at a maximum security male prison, she was approached by a prisoner who demanded that she have sexual intercourse with him. Upon her refusal, Ms. Farmer was pushed, kicked and punched in the face repeatedly. The inmate tore off Farmer’s clothing, held her down on the bed and forcibly raped her at knife point. 53 Her attacker threatened to kill 50 Sydney Tarzwell, The Gender Lines Are Marked With Razor Wire, 38 Colum. Human Rights L. Rev. 167, 182 (2006). 51 Farmer v. Brennan, 511 U.S. 832 (1994). 52 Id. at 829. 53 Farmer v. Brennan, 114 S. Ct. 1970 (1994), Petitioner's Opening Brief at 5 & n.15 (No. 92-7247). 12 her if she reported the incident to prison officials. Farmer’s injuries resulting from the rape included “mental anguish, psychological damage, humiliation, a swollen face, cuts and bruises to her mouth and lips and a cut on her back, as well as some bleeding.” 54 She reported the rape one week later. Farmer’s transsexual status was known to the Bureau of Prisons by virtue of her appearance and by means of documentation in prior records and litigation which explicitly identified her as a transsexual. 55 Farmer brought a §198356 action against the prison officials, claiming an Eighth Amendment violation grounded in the fact that officials had allowed her assault at the hands of other inmates. 57 The Supreme Court in Farmer defined the “deliberate indifference” standard which is currently applied to claims which involve a prison officials’ misconduct and the subsequent assault of an inmate by another inmate. 58 The Court set forth a two-prong test for determining when prison officials could be held liable for Eighth Amendment violations. The first prong requires the plaintiff to prove that prison officials had actual knowledge of the impending harm to the inmate. 59 The second prong requires the plaintiff to prove that officials blatantly chose to disregard the risk of harm. 60 Under this subjective standard, plaintiffs are required to prove (1) that they had notified prison officials of explicit threats to their safety, (2) the officials had actual knowledge of impending harm, and (3) the harm suffered was easily preventable, in order to establish 54 Farmer v. Brennan, 114 S. Ct. 1970 (1994), Petitioner's Opening Brief at 5 & n.15 (No. 92-7247). Farmer v. Haas, Brennan and DuBois, No. 90-1088, 1991 U.S. App. WL 26456 (7th Cir. Feb. 14, 1991). A prior, separate action in which Farmer had challenged the Bureau of Prisons’ failure to provide medical treatment for her transsexualism. 56 42 USCS § 1983: A statute which allows individuals to sue state actors in federal courts for civil rights violations. 57 David K. Ries, Duty-to-Protect Claims by Inmates after the Prison Rape Elimination Act, 13 J.L. & Pol’y 915, 939 (2005). 58 David K. Ries, Duty-to-Protect Claims by Inmates after the Prison Rape Elimination Act, 13 J.L. & Pol’y 915, 939 (2005). 59 Farmer v. Brennan, 511 U.S. 832, 836-837. 60 Id.at 837. 55 13 liability. 61 Farmer appealed the Court’s decision and argued that officials should be held to an objective standard under which the plaintiff need only prove the risk was so obvious that a reasonable person should have been aware of its existence. 62 The Court rejected Ms. Farmer’s argument and retained the subjective requirement of deliberate indifference. 63 However, the Court attempted to mitigate the burden imposed by the difficult standard by allowing the plaintiff to show the officials’ requisite knowledge by means of “inference from circumstantial evidence”. 64 The Farmer standard of deliberate difference has proven to be an especially difficult evidentiary burden for transgender prisoners to overcome. 65 This is largely due to the fact that a prison official who seeks to escape liability may simply claim that he had no knowledge of the risk of harm to the inmate, or that he was aware of the facts, but did not think the risk was significant. Alternatively, a prison official may also escape liability if he asserts that he “responded reasonably to the harm” but despite his actions, the harm was not averted. 66 Transgender prisoners have a difficult time refuting these claims because the records which provide the necessary evidentiary support for their claims are often under the prison system’s control, not their own. Furthermore, because violence in the prison system is underreported, if a prisoner does obtain these records, they are unlikely to contain substantial information. 67 Due to the difficulty of gathering the evidence needed to support their claims, the final result for transgender litigants is 61 Marjorie Rifkin, Farmer v. Brennan: Spotlight on an Obvious Risk of Rape in a Hidden World, 26 Colum. Hum. Rts. L. Rev. 273 (1995). 62 Farmer v. Brennan, 511 U.S. 832, 836-837. 63 Id. at 837. 64 Farmer v. Brennan, 511 U.S. 832, 842. (1994) 65 Marjorie Rifkin, Farmer v. Brennan: Spotlight on an Obvious Risk of Rape in a Hidden World, 26 Colum. Hum. Rts. L. Rev. 273, 302 (1995). 66 Farmer v. Brennan, 511 U.S. 832, 844 67 Farmer II, 81 F. 3d at 1444, 1446-1449. (7th Cir. 1996). 14 usually a grant for summary judgment in favor of officials. 68 Thus, the prison system is repeatedly placing transgender prisoners in situations which are uniquely “cruel and unusual” while simultaneously making it extremely difficult to prove their case in order to obtain relief. 69 As long as the Bureau of Prisons and state prisons continue the practice of genitalia-based placement, the vicious cycle of incurable abuses against transgender inmates will continue. 70 The Eighth Amendment rarely includes “harassment” and “verbal abuse” as violations if prisoner rights. Yet, the extreme type of “harassment” faced by transgender inmates should be held to rise to the level of cruel and usual punishment because it is predictable, deplorable and avoidable in nature. Three cases typify the pattern of regular and predictable abuses which befall transgender persons who are placed in the general male prison population. Bianca Lucrecia, a transgender woman, had undergone a significant percentage of physical change from male to female. 71 At incarceration, she was on a regimen of hormone therapy, had developed breasts, her testicles had been surgically removed and her penile tissue was atrophic. Despite these physical traits, her pre-sentence report identified her as a “32 year-old Caucasian male”. Ms. Lucrecia was ultimately housed in Boron, a prison facility designed to house male prisoners. 72 She lived with three other men in a four person cell. During her stay at 68 69 Id. Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1238 (2004). 70 Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1237 (2004). 71 Lucrecia v. Samples, 1995 WL 630016, 1 (N.D. Cal. Oct. 16, 1995). 72 Id. at 2-3. 15 Boron, Ms. Lucrecia was groped and called derogatory names. Frequently the men would taunt her by grabbing their crotches and beckoning her to have sex with them. 73 Another woman, Kelly McAllister, a pre-operative MTF, was arrested in connection to an alleged public disturbance. The sheriff’s department knew of McAllister’s transgender status, yet chose to place her in a cell with a male inmate who brutally raped her.74 A final example of transphobic prison violence is the case of Rosio Melgoza. Ms. Melgoza was arrested on charges related to a wage dispute, which were later dropped. The arresting officers fondled her breasts and genitalia with their hands and nightsticks. Two days after her arrest she was publicly strip searched in front of sixty male prisoners and then placed in a cell with them. In the following hours, Ms. Melgoza was repeatedly assaulted and “gang raped”. 75 An explanation for the abuses which befall transgender persons is best understood by identifying their relative position in the “prison hierarchy”. 76 Historically, male prisons have been known to contain hierarchies which subject the weak to the strong and equate femininity with weakness. The victims of this subjugation are subject to physical injury, sexual harassment, battery, rape and murder. The strong or “trustee” inmates generally choose to dominate persons who are young, gay, or who committed certain crimes. Generally, “trustee” inmates consider themselves to be heterosexual and view themselves as different from a weak and passive transgender inmate, who serves the 73 74 Id. Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, (2004). 75 Karen Nikos, Transsexual Says Arrest Led to Abuse, L.A. Daily News, Aug. 2, 1991. 76 Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 522-525 (2000). 16 function of the forced receptive sex role. 77 Based on these factors, transgender inmates frequently take on the “victim” role in prison. In addition, many inmates who have been the victim of rape do not report the assault for fear of being labeled a “snitch”, which may pose an even further risk of harm. 78 Snitches are often punished by other inmates by means of increased brutality or murder. Finally, prison officials categorically deny the existence of sexual activity within the prison system. Pleas for help from raped inmates are frequently ignored or disbelieved. 79 Prison officials also tend to assume that transgender prisoners are more likely to consent to sex with male inmates because of their female gender identification. Furthermore, if the prison guard views the inmate as a “man in a dress” he may assume that the inmate is a homosexual and therefore “wants” sexual contact with other males. 80 In order to avoid potential security threats posed by violent inmates, officials may force transgender prisoners into segregation. Administrative segregation is a form of confinement prisons use as a means of separating an inmate from the general prison population. 81 The rationale behind the separation is to protect a prisoner who is a threat to the security of the prison, other inmates, himself, or the prison staff. Although segregation of transgender inmates may reduce the risk of sexual assault, there are several reasons to reject segregation as the long-term solution to the problems created by 77 Terry Kupers, M.D., Rape and the Prison Code, in Prison Masculinities,113 (Don Sabo et al. eds., Temple University Press, 2001). 78 Id. 79 Kevin R. Corlew, Congress Attempts to Shine a Light on a Dark Problem: An In-Depth Look at the Prison Rape Elimination Act of 2003, 33 Am. J. Crim. L. 157, 161-162 (2006). 80 Id. at 161. 81 Anita Barnes, The Sexual Continuum: Transsexual Prisoners, 24 New Eng. J. on Crim. & Civ. Confinement 599, 638 (1998). 17 genitalia-based placement. 82 In many situations, this type of protective custody is similar, if not identical to, solitary confinement and is designed only to be used for limited periods of time. Unwarranted, long-term confinement may qualify as cruel and unusual punishment. 83 In addition to making prisons civilly liable to inmates, administrative segregation also inflicts many unnecessary hardships on transgender inmates. Segregation often excludes the prisoner from equal participation in prison life. Furthermore, even if administrative segregation does prevent attacks by other inmates, it does nothing to stop the harassment and violence of prison officials, a major source of the violence perpetrated against transgender prisoners. 84 A prisoner’s constitutional rights are infringed upon if their liberty interest is violated by their placement in segregation, where their behavior or crime does not warrant such punishment. 85 One such case is that of Miki Ann DiMarco. 86 DiMarco, an intersexual inmate who identified as female, was sentenced to fourteen months in prison for check fraud and was first placed in the Wyoming Women’s Center. However, when medical staff examined DiMarco, they concluded that she was not an anatomical female. 87 Officials feared that DiMarco would be abused if housed in the general male prison population and alternatively, placed her in complete isolation in the prison’s maximum security wing. Although prior evaluation had determined that DiMarco was at the lowest possible security risk level and posed no risk of sexual threat, she was subjected to the same restrictions as the prison’s most dangerous inmates for the entire Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 529-531 (2000). 83 Id. at 638. 84 Human Rights Watch, No Escape; Male Rape in the U.S. Prisons, page 11 (2001). 85 Brown v. Plaut, 131 F.3d 163, 169 (D.C. Cir. 1997). 86 DiMarco v. Wyo. Dep’t of Corr., 300 F. Supp.2d 1183 (Tenth Circuit Court of Appeals, 2004). 87 Id. at 1337. 82 18 duration of her fourteen month sentence. 88 The Federal District Court of Wyoming concluded that the officials’ improper placement and failure to correct the decision violated due process. It held that DiMarco’s placement in solitary confinement for 438 days resulted in an “atypical and significant departure from ordinary incidents of prison life”, thereby giving rise to a state-created liberty interest that required due process protection” and that DiMarco was thus denied adequate due process. 89 The Court concluded that DiMarco should have been entitled to a more substantial hearing process to determine her ultimate placement and awarded her one thousand dollars compensation plus her litigation costs and attorney’s fees. This judgment was overruled by the 10th Circuit Court of Appeals. 90 The Court held that because prison officials were faced with an “unfamiliar situation” they were justified in their decision due to the limited choices available to address DiMarco’s unique situation. Specifically, the Court stated that because Wyoming was a small state with a small prison population, they did not have enough prisoners to establish special units which would allow transgender inmates to live apart from the general population. 91 Furthermore, the Court stated that at the time of DiMarco’s confinement officials did not have the option of transferring her to another state for housing in such a unit because of DiMarco’s relatively “short sentence”. Essentially, the Court concluded that although the state could have done better, under the given circumstances, the actions of the prison officials did not amount to a violation of DiMarco’s constitutional rights. 92 88 89 90 91 92 Id. at 1337-1338 Id. at 1339. Estate of Miki Ann DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334; (10 th Cir. Ct. App.) 2007 Id. at 1343. Id. at 1344. 19 DiMarco’s situation typifies the outcomes of many transgender plaintiffs; the court may recognize that they have been treated unfairly, but not unfairly enough to warrant a constitutional violation. This very recent decision by the Tenth Circuit shows that persons who are gender “deviates” are still punished for their non-conformity and continue to be “legal outsiders.”93 Administrative segregation reinforces the notion that inmates who “chose” to be transgender should face special consequences and restrictions as a result of their choice. Ironically, segregation often burdens the victims of the violence it seeks to prevent, more than it punishes the aggressors. 94 The most obvious solution to the problems faced by transgender inmates would appear to be the replacement of genitalia-based placement with placement according to the inmate’s subjective gender identity. Under this method of placement, an inmate would be housed according to the gender with which they identify and not solely based on their anatomical characteristics. Such placement would presumably reduce the risk of potential sexual assault against transgender inmates. 95 However, this subjective method of placement is not free from shortcomings either.96 Most notably, gender-identity placement would disrupt the security and order of traditionally gendered prisons. For example, Juanita Crosby, a female prisoner who was forced to share her cell with a transgender woman filed a claim based on her right to not be subjected to nakedness in front of a member of the opposite sex. 97 Crosby lived in a prison cell with Ms. Cheyenne Lamson, a transgender woman. Ms. Lamson was pre-operative, had undergone extensive 93 Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Desegregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 41 (1995). 94 Human Rights Watch, No Escape; Male Rape in the U.S. Prisons, page 11 (2001). 95 Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 509-511 96 Debra Sherman Tedeschi, The Predicament of the Transsexual Prisoner, 5 TEMP. POL.& CIV. RTS. L. REV. 27, at 40-46 (1995). 97 Crosby v. Reynolds, 763 F. Supp. 666, (D. Me. 1991). 20 estrogen treatment, developed breasts and lost penile sexual function. Lamson was placed in a women’s facility after a physician’s determination that placement in a male facility would have caused “physical and psychological harm”. Ms. Crosby filed suit because Lamson unintentionally entered her area of the cell when Crosby was using the toilet on a regular basis. Crosby refrained from showering and got dressed underneath her bed covers in order to avoid nudity in front of Lamson. 98 The court determined that prison officials did not violate Crosby’s constitutional rights in housing her with Lamson, given the good-faith subjective intentions of the guards and the lack of feasible alternatives. 99 Although Crosby was unsuccessful in her claim, her fears clearly reinforce the stereotypical notions which attach to transgender inmates, even when placed according o their subjective gender identity. Although there is no documentation of transgender women harming other women after being housed in female prisons, claims such as Crosby’s resemble the prejudicial reactions transgender women face outside of prison when they attempt to use a women’s restroom. Transgender women often face an irrational fear from others who view them as sexually predatory, voyeuristic and violent. There is also a similar fear that “men in dresses” will invade women’s bathrooms (and prisons), thereby posing a security threat to females. 100 These prejudicial notions and tenuous arguments tend to foster the rejection of gender identity based placement of prisoners. This results in the following the paradoxical conclusion: a transgender inmate who is housed in a male prison is not accepted as male and is forced to submit to the stronger prisoner’s sexual assaults; however, when housed with women, they are viewed as a predatory male. This contradiction demands that correctional authorities develop a 98 99 Id. at 667. Id. at 670. 100 Rosenblum, supra note 1, pp. 531-533. 21 workable and humane standard of protection for transgender inmates. The adoption of such a standard would ideally protect an inmate’s safety interests without forcing them to abandon their gender identity. The Bureau of Prisons faced a similar challenge when the overwhelming prevalence of prison rape demanded a method of reform. In 2005, prison rape was conservatively estimated to occur 12,000 times a year and affect nearly thirteen percent of the nation’s prisoners. 101 The Supreme Court in Farmer held that no legitimate penological purpose was served by allowing rape to occur in prisons. 102 Nearly a decade later, in response to the pervasiveness of inmate-on-inmate sexual assault, Congress passed the Prison Rape Elimination Act of 2003, 42 USC § 15601 (2003). The Prison Rape Elimination Act is the first United States federal law to address the assault of prisoners. The PREA was unanimously passed by both houses of Congress and was signed into law by President George W. Bush on September 4, 2003. The fundamental goal of the Act is to force prison officials to be held accountable for prison rapes by requiring them to maintain better documentation of the incidence of rape in their facilities. 103 The PREA furthers the goal of prison rape prevention by calling for the Bureau of Justice Statistics of the Department of Justice to conduct a “yearly review and analysis of the incidents and effects of prison rape.”104 The Act also creates a National Prison Rape Elimination Commission. The role of the Commission is to study the occurrence of sexual assaults in prisons, evaluate the subsequent responses by prison officials, and formulate national standards for prison safety. Based on these findings, the 101 102 103 104 The Prison Rape Elimination Act, 42 U.S.C. 15601(2) (2005). Farmer v. Brennan, 511 U.S. 825, 832-833 (1994). 42 U.S.C. § 15602(6) 2005). 42 U.S.C. § 15601(a) (2003). 22 Commission makes recommendations to the Attorney General regarding the implementation of national standards for prevention of prison rape. 105 Furthermore, the PREA also provides training and educational programs for both inmates and prison officials to ensure the prevention of prison rape. 106 The standards adopted by the Attorney General are immediately applicable to the Federal Bureau of Prisons. States that comply with the national standards receive grant money provided by the PREA. Noncompliance with the Act will be punished by a 5% reduction in federal funding to the state’s prison system; a significant drawback for a system which claims overcrowding has resulted in a lack of funds. 107 Congress enacted the Prison Rape Elimination Act in order to provide protection to a class of persons who were suffering unnecessary harm in the prison system. The need for the Act grew out of a lack of accurate information and reporting of prisoner assault. 108 The passage of the Prison Rape Elimination Act proves that although the Court is not willing to abandon the subjective Farmer “deliberate indifference” standard, Congress is willing to enact polices which will prevent the occurrence of such egregious harms. Furthermore, it mandates that officials can no longer claim prison rape is a “myth”, but rather a harsh reality in need of urgent attention. Transgender persons are clearly included within the group of persons the Act was designed to protect. However, the PREA does not, in itself, create any new course of action for transgender inmates seeking relief from current inhumane conditions. At present, the PREA functions to increase the level of federal scrutiny regarding prison rape. Although the National Institute of Corrections’ 105 106 42 U.S.C. § 15607 (2005). 42 U.S.C. § 15604 (2005). 107 42 U.S.C. § 15605(c)(2) (2005). 108 David K. Ries, Duty to Protect Claims by Inmates After the Prison Rape Elimination Act, 13 J.L. & Pol’y 915, 959 (2005). 23 preliminary discussion of the implementation of Act did note that the risk of sexual assault faced by transgender inmates is significant, the prevalence of transgender inmate rape has not declined. 109 The PREA should be viewed as a “step in the right direction” for the protection of transgender inmates, who have emerged as a unique class of persons in need of protection. In order to provide immediate and effective protection to transgender inmates, Congress should implement a policy which is specifically tailored to the needs of transgender inmates. This type of policy would finally provide protection to individuals who have always fallen “outside the scope” of the law. The United States should look to other countries that have successfully adopted policies which have made significant progress regarding the prevention of transphobic based violence within its prison systems. Australia is a prime example of a nation which has successfully adopted a policy reading transgender prisoner protection. 110 Specifically, the territory of New South Wales has proven to be a positive example of ideal transgender prisoner treatment. In 1996, New South Wales adopted The Transgender Anti-Discrimination Act, which is specifically aimed at prohibiting discrimination against a person based on their transgender status. The Act contains several provisions aimed at the humane treatment of transgender prisoners. 111 The territory’s policy is based on the presumption that inmates have a right to be placed in a facility based on their gender identity, unless otherwise determined, by means of case-by-case analysis, that security risks require that they be 109 National Institute of Corrections, How the PREA Affects You (July 21, 2004) http://nicic.prg/Library/019821. 110 Rebecca Mann, The Treatment of Transgender Prisoners; Not Just an American Problem, 15 Law & Sex. 91, 119 (2006). 111 Gender Center Inc., Management of Transgender Inmates, http:// www.gendercentre.org.au/inmates.htm 24 placed elsewhere. For example, male to female transgender inmates would be housed in a female prison, unless their history or present psychological analysis demonstrates a threat to her safety or the safety of the other inmates. An exception to this policy of gender identity based placement exists in regard to female to male transgender inmates. Although these inmates are legally recognized as male, they are generally placed in female prisons. This policy arose after officials identified the safety concerns and high risk of sexual violence this particular group of transgender persons faced in male facilities. 112 The United States prison system should adopt a similar policy which takes into account the unique problems of different transgender groups, rather than adopting a “cure all” policy which will still leave some transgender persons in vulnerable positions. Perhaps the most effective procedure in New South Wales’ approach to transgender inmates is the in-depth screening of inmates which occurs prior to incarceration. Under the new policy, whenever a transgender prisoner is transported to a holding facility or court, security officials and police must inform the Placement Officer of every transgender inmate received into custody. The Placement Officer and other staff are then under a duty to keep the transgender inmate separate from the general prison population until proper evaluation has been made regarding placement. 113 This procedure would serve several beneficial purposes if implemented in the United States. First and most importantly, it would prevent the indifferent placement of transgender prisoners in the general population, where there is an overwhelming risk of abuse. Additionally, United States prison officials would be deterred from indifferent placement and transgender prisoners would finally have an effective means of obtaining redress. 112 Rebecca Mann, The Treatment of Transgender Prisoners; Not Just an American Problem, 15 Law & Sex. 91, 119-120 (2006). 113 Id. at 119-120. 25 Under New South Wales’ policy any individual who claims transgender status is subjected to a full induction screen. This screen is provided by the Metropolitan Remand and Reception Center (MRRC) which also provides continuing case management of the inmate’s ultimate placement. 114 The purpose of the MRRC screening is to determine the individual needs of the inmate in order to ensure appropriate placement. If the MRRC screening uncovers a safety concern or security risk, the transgender inmate will be placed according to his or her gender identity. However, if the MRRC uncovers prior history of the inmate which would indicate that they are a risk to the safety and security other inmates or personnel, they will be separated from the general prison population. 115 In the event of such segregation, the correctional facility is under a duty to provide the inmate with the same correctional services and programs available to the general prison population. Furthermore, facilities also have an additional obligation to provide services which are tailored the unique needs of transgender inmates; such as community support services, community legal services and therapy group sessions. 116 The United States’ adoption of a similar policy would refute the argument that inmates may claim transgender status in order to receive the “benefits” that attach to subsequent segregation. For example, an inmate may wish to “escape” his prison’s general population because he has wronged a particular person or group or because he feels segregation provides individualized services which he does not receive in the general population. The implementation of an institution like the MRRC will insure that inmates who attempt to “cheat the system” in order to gain segregation that provides equal and specialized rights, would be spotted as frauds and kept within the general 114 115 116 Id. at 120. Id. Id. 26 prison population. Furthermore, the United States prison system would have professionals who are trained in transgender issues in charge of placement determination, rather than correctional officers, who are untrained regarding transgender issues. The New South Wales prison system acknowledges that prison officials, administrators and staff are an essential part of the smooth integration of transgender inmates. 117 When individuals are hired, they are sufficiently trained to manage transgender inmate concerns. In New South Wales, the officials are required to address transgender inmates by name and with pronouns in accordance with their gender identity. In addition, all records, name badges and forms of registration must reflect the prisoner’s chosen gender. Finally, correctional facilities must provide transgender inmates with gender-appropriate clothing and undergarments at all times. 118 The United States’ adoption of a similar policy would decrease the number of §1983 actions brought against prison authorities on the basis of cruel and unusual harassment and degradation. 119 Similarly, training prison officials in maters of tolerance will serve to implement tolerance in the general prison population, thereby lowering the number of §1983 cases altogether. Although there is no simple remedy to the problem transgender prisoners currently face in the United States, it is clear that the law cannot continue to obstruct a transgender inmate’s means of obtaining relief by means of the Farmer standard of deliberate indifference. Congress should draft legislation which combines the reporting and sanctioning aspects of the PREA with the “hands on” screening and training 117 118 Id. at 121. Id., Fred Cohen, The Limits of the Judicial Reform of Prisons; What Works, What Does Not, 40 Crim. L. Bull. 421, 453 (2004). 119 Peek, supra at note 3, pp.1231-1232. 27 approach of New South Wales. The adoption of this hybrid policy would ensure that all inmates are not subjected to cruel and unusual punishment. 28