Lesson 101: The Criminal Justice Experiences of Transgender People

National Geographic’s 2016 “Gender Revolution” edition generated both applause and controversy but illustrated perfectly how the conversation around gender has gotten increasingly more complex over the last decade. From the hit Netflix show Orange is the New Black to former Olympian Caitlyn Jenner, visibility for transgender men and women has struck curiosity in the minds of millions and is raising big questions for policy makers and practitioners alike. Criminal justice institutions in particular are being challenged to rethink their design so as to offer better accommodation and find ways to reduce bias.

Transgender Issues: A Beginning

Coming to identify as trans can manifest as a personal revelation at any point in life, whether at 8 or 80 years old. It can create both confusion and fear. With social and political consequences in mind, trans people must rectify their personhood in the face of rejection from family, discrimination, and legal obstacles. The “coming out” process involves a wherewithal and determination to seek authenticity in life and ideally, to build a supportive system that can be relied upon in times of need. However, rejection is all too common and may be both structural and inter-personal. Rejection from family, for example, has been shown to increase substance abuse and the likelihood of suicidal ideation[1] while stigma drives rejection in areas of housing, employment, education, and healthcare[2]. An explosive study in 2011 by the National Center for Transgender Equality and National Gay and Lesbian Task Force sampled nearly 6,500 trans and gender non-conforming people across the United States. It found that (1) harassment in both school (78%) and work (90%) settings were widespread; (2) nearly 20% experienced housing discrimination, harassment by the police, and/or were rejected from medical care; and (3) close to 80% do not have identification reflective of their gender-identity. Without access to stable employment, outcomes are often a decaying chain of events whereby people are forced into an underground economy of sex work and drug trafficking to get by. Given discrimination from formal institutions, trans people are twice as likely to be homeless, twice as likely to be infected with HIV, twice as likely to misuse drugs and/or alcohol, and 85% more likely to be incarcerated.

Being both victims of violence and participants in some of the most visible criminal activity, it is of no surprise that trans people are also more likely to be arrested, convicted, and jailed. Nearly 21% of transgender women and 10% of transgender men have a lifetime probability of spending time in jail or prison[3], a rate far exceeding the national adult average of 5%. At all steps of the criminal justice process, trans men and women experience harassment and discrimination. While discrimination at any level of society should raise concern, the experiences of trans people within the purview of the law and its agents is paramount to any society that prides itself on objective, valid application of jurisprudence. Whether it be denials for police service or verbal and physical violence from correctional officers, discrimination within the pillars of the system degrades the legitimacy of law. In an effort to better understand how pervasive transgender stigma has permeated the bodies of the system, it is worth exploring the state of law enforcement and sanctioning.

Law Enforcement: Police officers are the gatekeepers of the justice system and are usually the first point of contact for those arrested. Officers are on the front lines of enforcement and typically orient their work towards preventative measures like mitigating the effects of the black market through a style of policing focused on building relationships and fostering goodwill, or community-oriented policing. Community policing differs from more traditional “response” policing by focusing on the social sources of crime, like poverty. It also places resources in building relationships with members of the community, tailoring service around their specific needs. Because many departments have shifted towards this type of police work, officers are often brought in close proximity to trans men and women. In this, many transgender people have reported negative contact with police officers. According to the same 2011 study, nearly 22% of trans people and 29% of gender non-conforming people have been harassed by the police. These negative experiences eat away at community policing goals by sowing distrust. This not only reduces law enforcement’s ability to be effective in crime reduction, but makes everyone more unsafe.

How we fix it

Officers should be given comprehensive sensitivity training on all LGBT issues, emphasizing care to transgender issues and their unique needs. The Washington D.C. Metropolitan PD offers an early example (2007) in establishing specific protocols for interacting with trans people that included procedural guidelines regarding stop-and-frisk, the transfer of arrestees, and the appropriate way to process transgender people with regard to custody[4]. This may include establishing a LGBT liaison for departments to offer a voice in guiding appropriate policy.

Incarceration: With its never-ending barrage of threats to both mental stability and physical safety, prison is a life-altering experience that can change anyone. The experience is amplified when being transgender, facing attacks from not just fellow inmates but prison staff and its administrators. Jules Williams, a trans-woman who was recently released from Allegheny County Jail (Pittsburgh, PA) in 2017[5], details a graphic experience where she was held in a transfer cell with male prisoners and then later placed in protective custody with a male prisoner who raped her multiple times. The internal response was further embarrassment and trauma as she was taunted by guards and verbally assaulted. Sadly, Ms. Williams’ tale is far from unique. Of those who have been incarcerated, 35% of trans people report harassment from peers while 37% report harassment from correctional officers or staff, with both of these rates being higher among trans women (male-to-females). This treatment is physicalized in forms of violent and sexual assault, with 15% and 16% of trans people reporting physical assault or sexual assault respectively.

How we fix it

Transgender prisoners should be guaranteed housing that corresponds to their gender identity to ensure safety from physical/sexual assault. Guidelines put in place by the DOJ in 2016[6] ensure that correctional facilities follow some standard when basing housing decisions, however, this isn’t occurring uniformly, and most states only require housing individuals on a case-by-case basis. King County, Washington, for example, while prohibiting segregation based on gender identity or expression, houses people based on context and will only place trans people in housing corresponding to their gender identity when it is in the interest of their health and safety.
Prison staff, much like law enforcement officers, should be required to undergo sensitivity training. Prison facilities should also update their policies to reduce harassment from correctional officers and administrators.

Trans Issues at Home

It goes without saying that Louisiana has not always led the charge in social progression. 2017 was a tough year for trans people, with 3 Louisianans being counted among 25 others losing their lives to violence. However, with a climate for criminal justice reform, there is cause for hope going into 2018. New Orleans has risen among other major cities in the South for its dedication to inclusivity, fairness, and equality on LGBT issues. With the recent nomination of Sergeant Frank Robertson as LGBT liaison of the New Orleans Police Department and Latoya Cantrell’s successful mayoral bid, the city is poised to pave the way for huge progress. As part of her bid, Cantrell aims to introduce city-issued identification cards (similar to the New York’s IDNYC) that would allow transgender people to obtain government identification with gender markers corresponding to their personal identity. The NOPD 2017 operations manual also received major updates, defining LGBT terms, clarifying appropriate behavior when interacting with trans people, and reducing reliance of stop-and-frisk methods. This progress is applauded and will help increase visibility and reduce stigma.

Our Commitment

JAC envisions itself as an advocate and ally in this discussion and as such yield to organizations on the front lines whose expertise is centered on trans-specific issues. We do, however, believe the criminal justice system should be designed to liberate our communities from crime and done in respect to the root sources of crime, such as poverty. We also believe that the system should be framed around a basic commitment to value equality, enforced through objective application and respect to the law. Both law enforcement and prison systems are faced with the dilemma of how best to handle transgender issues, a process that has left people vulnerable. Transgender people are disproportionately impacted by the system and have a unique set of needs that has yet to be properly addressed. We also believe that, given the existing stigmas attached to trans people, post-prison life should be given special attention. Discrimination-limiting job prospects is only likely to increase following prison, so a commitment to reintegration is crucial for trans people looking to escape a cycle of repeat offending. Reintegration is of importance for trans-men and women who often find themselves excluded from conventional housing and employment, being forced into the underground economy. JAC’s “Clean Jacket” Expungement program is designed to mediate those outcomes and help formerly incarcerated trans people looking to reintegrate. Given the challenges and unique needs of trans people, advocates for progress are continually exploring avenues for education and eventually, sustained policy change. JAC looks forward to offering our resources to push this progress forward.

*For more information about the intersection between trans and gender non-conforming people and the criminal justice system, check out New Orleans-based resources like BreakOUT at http://www.youthbreakout.org

[1] Augustus, K., & Golub, S. A. (2016). Family rejection as a predictor of suicide attempts and substance misuse among transgender and gender nonconforming adults. LGBT Health, 193-199.

[2] Grant, J. M., Mottet, L. A., Tanis, J., Harrison, J., Herman, J. L., & Keisling, M. (2011). Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force.

[3] http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf

[4] https://go.mpdconline.com/GO/GO_501_02.pdf

[5] https://www.aclu.org/blog/lgbt-rights/criminal-justice-reform-lgbt-people/transgender-prisoners-face-sexual-assault-and?page=1#comments-top

[6] https://www.theguardian.com/us-news/2016/mar/24/transgender-prison-gender-identity-anatomy-doj-rules