Newly unveiled guidance from the Trump administration instructing federal prisons to designate sex to transgender inmates on the basis of birth sex, not gender identity, is facing criticism from human rights groups who say the policy will jeopardize the safety of inmates.
The 18-page guidance from the Federal Bureau of Prisons rolls back Obama administration rules that recommended housing for transgender inmates based on “gender identity when appropriate” and instead instructs prisons to “use biological sex as the initial determination for designation” in placement. The guidance was first reported Friday by Buzzfeed.
Conditions that would necessitate placing transgender inmates in holdings consistent with their gender identity include their health and safety and behavioral history, but placement of a transgender inmate in housing consistent with their gender identity would the exception, not the rule, the guidance says.
“The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases after consideration of all of the above factors and where there has been significant progress towards transition as demonstrated by medical and mental health history,” the guidance says.
Demoya Gordon, a staff attorney for the transgender rights project at the LGBT group Lambda Legal, said “there is no justification” for this policy change.
“It will almost certainly make transgender people and transgender women, in particular, even more vulnerable than they already are to rape and sexual assault while incarcerated in these facilities,” Gordon said.
According to the 2015 U.S. Transgender Survey, transgender people who were held in jail, prison or juvenile detention in the previous year faced high rates of physical and sexual assault by facility staff and other inmates.
In the year before the survey was conducted, 23 percent of respondents said they were physically assaulted by staff or other inmates, and one in five were sexually assaulted. Those numbers mean respondents were more than five times more likely to be sexually assaulted by facility staff than the general U.S. population in jails and prisons, and more than nine times more likely to be sexually assaulted by other inmates.
Megan McLemore, senior researcher for the health and human rights project at Human Rights Watch, wrote in a blog post the new policy is “dangerous, wrongheaded and unnecessary.”
“BOP’s decision to weaken protections will place transgender people at immediate risk of physical and sexual assault,” McLemore wrote. “In light of overwhelming evidence of severe risks in confinement, it should be reversed immediately.”
The new guidance reverses guidance issued in 2016 during the Obama administration that was based on the Prison Rape Elimination Act signed by former President George W. Bush and called for prisons to place transgender inmates in housing based on gender identity, not birth sex or anatomy.
A Bureau of Prisons spokesperson pushed back on concerns about the guidance, saying the new policy would “balance the safety needs of transgender inmates as well as other inmates, including those with histories of trauma, privacy concerns, etc.,” and enable prisons to make placement on a case-by-case basis.
“Additionally, the manual now states that training on the management of transgender inmates will include information about best practices for maintaining the safety of the transgender inmates as well as the safety of staff, other inmates and the public,” the spokesperson said.
The BOP guidance is consistent with other actions from the Trump administration rolling back the rights of the transgender people. Most prominent among them is President Trump’s transgender military ban, which the White House and Pentagon reaffirmed earlier this year. Federal courts have enjoined the Trump administration from enforcing the ban on the basis that barring potential service members based on their transgender status is unconstitutional.
The Trump administration has also revoked Obama-era guidance requiring schools to allow transgender kids to use the restroom consistent with their gender identity and declared transgender people aren’t protected under federal civil rights law barring discrimination on the basis of sex.
Gordon said the new guidance on transgender inmates “is another example of people caving to unfounded and biased beliefs about transgender people.”
“What this really shows is there continues to be this unsupported idea that the very existence of a transgender person, and in this case, a transgender woman in a place designated for women somehow poses a risk to other people in that space, and there is no statistical or other support for this belief, although it unfortunately persists,” Gordon said.
Gordon added multiple courts have ruled the existence of transgender people in a space “does not impinge anybody’s privacy rights and does not pose a risk to anybody’s safety.”
Courts have ruled prisons must treat transgender inmates fairly. For transgender inmates who’ve been denied transition-related care, including gender reassignment surgery, courts have determined withholding such care is cruel and unusual punishment.
Gordon said Lambda is reviewing the policy now that it has been handed down and encourages transgender inmates affected by the change from the Obama-era policy to reach out.
“What you have here is on no basis whatsoever a rollback of that policy, so I don’t believe that this policy will survive constitutional scrutiny,” Gordon said.
The Bureau of Prisons issues the guidance as the Trump administration is prepared to push forward in Congress with a criminal justice reform plan. The White House didn’t respond to a request for comment on whether the new guidance is consistent with Trump’s vision for prison reform.