A case in which a guard at the Montgomery County, Md., Correctional Facility was arrested in September for allegedly assaulting and engaging in improper sex with a transgender female prisoner has drawn attention to the county’s policy for housing transgender inmates in its jails.
To the dismay of local transgender activists, the policy requires transgender women to be housed in the men’s section of the county’s jails unless they have had gender reassignment surgery.
“For the safety, security and order of the facility, the Montgomery County Department of Correction and Rehabilitation classifies and houses male and female offenders in separate housing units,” an eight-page written policy statement says.
“MCDOCR shall classify an arrestee/inmate who has male genitalia as a male and one who has female genitalia as a female,” the policy document states. “MCDOCR does not consider anatomical changes brought about by hormone therapy to be changes that constitute a change of anatomical sex,” it says.
An attorney representing a 28-year-old transgender woman initially placed in the men’s jail at the county Correction Facility told a Montgomery County Circuit Court judge at an Oct. 19 court hearing that her client, Portia Simms, has encountered repeated problems at the jail resulting in her being placed in a segregation unit.
The attorney, Theresa Chernosky, told the Washington Blade after the hearing that a male prison guard had been arrested for assaulting and mistreating Simms.
Court records show that the guard, Olukunle A. Oyekanmi, 41, was charged with five criminal offenses for his interaction with Simms. They include sex offense second degree, assault second degree, fourth-degree sex offense-sex contact, sexual contact between a correctional officer and inmate, and malfeasance in office.
According to court records, Oyekanmi pleaded guilty on Sept. 21 to two of the charges as party of a plea bargain offer by prosecutors – sexual conduct between a correctional officer and inmate and malfeasance in office. He is scheduled for sentencing on Nov. 27, court records show.
Montgomery County Detention Services Warden Suzy Malagari, who oversees inmate placement policies, said her office has a longstanding policy of not commenting on cases involving specific inmates, preventing her from discussing the prison guard’s arrest in the Simms case.
But she said the correctional department has a strict policy prohibiting any improper or abusive treatment of inmates by prison employees.
“If there is ever any indication brought to the forefront to us of any of our officers mistreating any of the individuals under our care in custody with anything less than that of respect, we take immediate action,” she said.
Malagari said the correction department’s transgender policy gives jail officials the discretion to decide on a case-by-case basis whether transgender inmates who have not had gender reassignment surgery should be housed in the section of the jail consistent with their biological gender or in one of several categories of “segregation” units.
She told the Washington Blade that segregation units, which are available to all inmates, consist of, among other categories, a mental health unit, a medical unit, a disciplinary unit, a crisis intervention unit, and a unit for inmates who are unable to adjust to being housed with the general prison population.
She said all inmates, including transgender inmates, are evaluated at the time they enter the correctional system or at a later time to determine a housing placement best suited for their health and safety and the health and safety of other inmates.
“None of those are in any way solitary confinement or isolated from everyone or everybody all the time,” Malagari said. “They still get regular rounds, regular interaction with the officers who work in those units. They still get their recreation time based on a mandated pre-schedule,” she said.
Dana Beyer, executive director of the statewide transgender advocacy group Gender Rights Maryland, and Kory Masen, an official with the National Center for Transgender Equality, reviewed the Montgomery Country trans prison policy at the Blade’s request. Both said the policy goes against longstanding recommendations and standards followed in other states and municipalities that transgender inmates should be housed in the section of a jail consistent with their gender identity, not their biological gender.
“It’s unacceptable and irresponsible to determine housing or placement of a transgender person based solely on their genitalia,” Masen told the Blade in a statement.
“It also violates national standards under the Prison Rape Elimination Act (PREA), and opens agencies to lawsuits if a prisoner who is inappropriately housed gets assaulted,” Masen said. “Under the standards, agencies must make a case-by-case evaluation that heavily weighs the prisoner’s identity and their own views with respect to their safety,” Masen said.
“While MCDOCR’s policy repeats the words ‘case by case,’ the substance of the policy is anything but,” he said.
Beyer, who recently announced her candidacy for a seat in the Maryland State Senate, said the policy appears to go to great lengths to be considerate and respectful to transgender inmates and calls for protecting their rights and safety.
“The only problem is they got the basic foundational decision wrong,” she said, noting that under Maryland’s and Montgomery County’s nondiscrimination laws transgender people have the right to use public accommodations such as bathrooms that are consistent with their gender identity, not their biological or birth gender.
“What they’re saying is if a trans woman hasn’t had surgery she’s going in with the guys,” said Beyer. “And she’s going to dress like the guys, groom like the guys, and that’s simply unacceptable.”
Beyer called on county and state officials to determine whether the Montgomery County trans prison policy violates the county and the state’s human rights laws, which, among other things, ban discrimination on the basis of gender identity and expression.
Raquel Coombs, a spokesperson for Maryland Attorney General Brian Frosh, who’s in charge of enforcing the state human rights law, said attorneys with Frosh’s office told her the state law does not apply to county prisons and correctional systems.
James Stowe, director of the Montgomery County Office of Human Rights, couldn’t be reached this week to determine whether the county’s human rights measure applies to the country prison system.
The federal PREA law referred to by Mason at the National Center for Transgender Equality addressed matters pertaining to transgender prisoners in greater detail under regulations interpreting the law put in place under the Obama administration. It couldn’t immediately be determined whether the Trump administration has left those regulations in place.
“The PREA standards are based on the fact that transgender prisoners are victimized behind bars at rates higher than any other demographic group ever studied, according to the U.S. Bureau of Justice Statistics,” Mason said. “Housing a transgender woman automatically in a men’s prison too often makes her a target,” he said.
Simms has been held without bond in the Montgomery County Detention Facility since the time of her arrest in March on 16 counts of armed robbery related offenses involving three separate incidents.
Charging documents filed by police and prosecutors accuse her of squirting employees in the face with pepper spray and mace at the luxury fashion retailers Saks Jandel and Ilori Optical in Chevy Chase and Specs New York Store in Bethesda in three separate incidents between July 2015 and January 2017. Authorities say the pepper straying and use of mace as a weapon enabled her to steal more than $15,000 in high-end merchandise from the three stores, including Valentino handbags and Chanel sunglasses.
Court records show Simms, who is identified in court papers only by her male birth name, pleaded guilty as part of a plea bargain agreement in September to three charges of armed robbery. She was scheduled for sentencing on Oct. 19, but at the request of defense attorney Chernosky, Circuit Court Judge Marielsa Bernard agreed to postpone the sentencing indefinitely while Simms undergoes a psychiatric evaluation.
Montgomery County Assistant State’s Attorney Christina Rodriguez, the lead prosecutor in the case, called on Bernard to sentence Simms to 18 years in prison based on what Rodriquez said Simms’s long history of arrests for similar armed robbery offenses in D.C. and Virginia as well as Montgomery County.
“The total value of property stolen from the three jurisdictions was approximately $61,000, with over $15,000 stolen from Montgomery County alone in less than six months,” Rodriguez said in her sentencing memo.
Judge Bernard scheduled a status hearing for Jan. 3 to follow up on when the sentencing for Simms should take place.