Arguments Against Transgender Inmates

Transgender Inmates: The Dilemma

Transgender people are victims of societal views of them. This deep-rooted negative view of transgender people, transphobia, has impacted inmates and has contributed to their victimization in prison by inmates and prison staffs. For instance, transgender inmates do not have a liberty interest to determine their own gender regardless of whether or not medical procedures are carried out. Determination by medical procedure is an example of how the criminal justice system is psycho medical, however treating a transgender inmate solely by their physical appearance may make the inmate more susceptible to victimization. Since the amount of transgender people and subsequently transgender inmates is rising criminal

justice system is in the process of switching its approach to transgender inmates from psycho-medical to psycho-social. Small changes have been made to approach transgender inmates based on the gender they identify in order to decrease victimization. However, criminal justice administrators are having difficulty making this switch because there is no regulation on determining the gender and then housing these individuals. Gender determination and the responsibilities of the jails are two main points of interest when dealing with transgender inmates because it pays a huge role on likelihood of these inmates becoming victims of crime while incarcerated.
Hal Brotheim’s article, Transgender Inmates: The Dilemma, describes the responsibilities of prisons and the gender determination process.

It is imperative gender determination occurs as soon as the inmate is taken into custody. Brotheim suggest following these protocol can decrease further victimization. Brotheim uses the courts Farmer V Brennan determination to discuss the current standard of the law for gender determination. Brotheim says, “Transgender people who have not had genital surgery are usually classified according to their birth sex for purposes of corrections housing regardless of how long they may have lived as members of the "other gender" and regardless of how much other medical treatment they may have undergone. (2013, 42) However the issue with such psycho-medical approach is more often than not these transgender inmates do not identify with their birth sex. While it is not unconstitutional to ignore the gender these transgender inmates identify with, there are guidelines for prisons that may want to be more sensitive to these inmates’ special needs. These guidelines suggest what an administrator should do if the inmate does not identify with their birth sex in order to reduce victimization. These suggestion

include,
“ When the intention of a person's gender presentation is clear to a reasonable person (based on attire and other objective clues), use that as a basis for gender determination, When a person's sex is unclear or staff members are uncertain of a person's gender identity, it is appropriate to ask how the individual wishes to be addressed, and staff could make a determination about the person's gender based on gender expression (clothing, language, demeanor, etc.) and any other evidence available, including a sanctioned visual examination by appropriate personnel.”(Brotheim, 2013, 45)
Aforementioned these guidelines are only suggestions and typically used in prison that are gradually making the switch from psycho-medical to psycho-social treatment of inmates. Unfortunately the determination is at the administrators discretion which made lead to discrepancies among different employees and could create a confusing process for the inmates and the staff member.
The second key topic discussed in Transgender Inmates: The Dilemma is the responsibilities of jails. Jails has certain responsibilities mandated by the 8th and 14th amendment to ensure reasonable protection to inmates in their custody. Brotheim says, “Jails have a duty to take reasonable measures to guarantee inmates' safety from assault, suicide, fires and other facility dangers, and preventable illness.” (2013, 45) Jails have determine any sexual behavior in the facility is a violation therefore jail have responsibility to protect these transgender inmates from victimization they are especially at risk for. Aside from the jail’s legal requirements to protect their inmates other responsibilities of the jails specific to transgender inmates are to ensure staff show respect for “transgender persons' identity and gender expression.”(Brotheim, 2013, 46) Employees must address them by their preferred name and using “gender pronouns appropriate to an individual's gender self-identity and expression.” (Brotheim, 2013, 46) Brotheim article Transgender Inmates: The Dilemma discuss the current issue involving the growing population of transgender inmate in American prisons. Prison are having difficulty determining the gender of these inmates an also setting aside a new list responsibilities specific to the transgender population in prison. Unfortunately negative view towards transgender people has delayed progress toward ensuring these transgender inmates are protected while incarcerated.
I am interested in the topic of transgender inmates because I believe transgender people are a population that have impacted my generation. More conversations about the transgender population has been frequently appearing in the media. Shows such as I Am Jazz and I Am Cait are trying to spread awareness about transgender people and their struggle. Being interested in criminal justice I immediately thought since the amount of people coming out as transgender has increase eventually the amount of transgender inmates will increase as well. It is obvious the criminal justice system is not prepared to deal with this special population because the general public is just now becoming more open to them. Also for many institution when a transgender inmate is incarcerated it is the first time the prison has dealt with a transgender person. I am interested in special populations in the criminal justice system and ways we can make their incarceration as safe as possible.
Additional research on transgender inmates has spread to the juvenile justice system. Fortunately many juvenile justice agencies and facilities express a sincere desire to treat LGBT youths in a fair and respectful way. Rachel Bosley’s qualitative research, Ensuring the Safety of LGBT Youths in the Juvenile Justice System, discover how juvenile justice systems has promoted positive interactions among the LGBT youths and staff.( 2012, 100) Bosley begins her research by conducting person to person interview will transgender youth. She ask youth of Moss Group Inc. in Washington D.C. how they believe the criminal justice system has treated them so far. She also ask questions about their acceptance from other youth and staff members. Lastly she asks question regarding ways the youth feel the detention center could better protect them. From interviews and further research Bosley provides, guidelines for agency leadership “outlying how ways to properly supervise lesbian, gay, bisexual and transgender (LGBT) youths to maximize each youth's chances for success in life, and to minimize agency liability in the future.”(2012, 102) Bosley first suggest a new set of policies must be created in each juvenile detention center to address the transgender youth instead of modifying existing policies. She suggest the new policies should, “Add content on professional conduct addressing the role that personal beliefs concerning sexual orientation and gender identity should play in an employee or volunteer's interactions with each youth.” A policy that require staff and other youth to use appropriate name and pronoun usage. Lastly policies to ensure the youth screening process ask the youth for his or her sexual orientation or gender identity. (Bosley, 2012, 102) Making sure transgender youth are treated appropriately is imperative because the way they are treated plays a role in how successful the youth are at the detention center, which in turn has a lasting impression on the rest of their lives.
The qualitative research, From Policy to Prisoners to People: A “Soft Mixed Methods” Approach to Studying Transgender Prisoners researchers conducts face to face interview with over 300 inmates in California Prisons asking pressing questions about their transgender population in order to research how best to house these inmates. (Jenness, 2010, 517) This study focused on the male to female transgender inmates in California’s prisons for men. Jenness research suggest the issue of housing these inmates Is the discrepancies between how these inmates identify themselves and the vast different among each inmates. If prison decided how to house these individuals based on how they identify they would not be much consistency within the prison. Jennies complied, “The vast majority (77.4 percent) identify as female when asked about their gender identity, with considerably fewer identifying as “male and female” (14 percent), “other” or “it depends” (3.5 percent), “neither female nor male” (3.2 percent), and “male” (3.2 percent). (Jenness, 2010, 542) Transgender inmates are differ when it comes to sexual orientation which may also effect housing. A third (33.3 percent) of transgender inmates in California prisons identify as “homosexual,” while 19.4 percent identify their sexual orientation as “transgender,” 18.1 percent identify as heterosexual, 11.3 percent identify as bisexual, and the remaining 17.8 percent identify as something else. (Jenness, 2010, 543) It is clear to see the difficulty with different sexual orientation among transgender inmates. Without thorough interviews before housing on paper a males that identify with the female gender but is heterosexual may still be a male that attracted to males. Jenness concludes, social life is messy and as a result “the practice of sociology is filled with tension, contradiction, conflict, and ambiguity.” (2010, 546) Therefore each and every housing decision must be made specific to each inmate she suggest should could never see a regulation that would be universally effective.