Jeff Sessions’ Department of Justice recently announced yet another attack on . This time, he’s targeting transgender people in the Bureau of Prisons with a new policy statement mandating placements based on assigned sex at birth except in rare cases and erasing hard-won changes to BOP policy that allowed transgender prisoners to be placed in accordance with their gender identity. We sat down with Chase Strangio, staff attorney with the ACLU LGBT & HIV Project, and Amy Fettig, deputy director of the ACLU’s National Prison Project, to discuss what this means for transgender people in prison and the ACLU’s work going forward.
Last Friday, the BOP announced a new rule concerning transgender prisoners and undid some Obama-era rules. Can you explain what changed and how it affects trans prisoners?
Amy: The former rules required that gender identity — a person’s authentic, core understanding of their own gender — play a central role in where a person is held in a male or female prison. Now, the BOP is saying gender identity doesn't matter really and what they call "biological sex" will determine placement. That is going to put a lot of people in danger.
Chase: The old policy — though certainly nowhere near perfect — was one that took decades of advocacy work to develop, and lots of prisoners fought and suffered to get to a better place with respect to BOP policy.
Notably, , and it seems to mean anything other than the gender that trans person knows themselves to be. Even though BOP attempted to undermine the safety of trans people in custody, they cannot change federal law, regulations, or the Constitution, and all of those things still protect trans people (however tenuously) and we will fight to ensure that they are enforced.
Amy: BOP is violating the law by not following the Prison Rape Elimination Act (PREA), which is mandatory for federal and state prisons and jails around the country. PREA requires that a person's own sense of where they will be safer be given real consideration. Now the BOP says that only in "rare" circumstances will anything beyond "biological sex" be considered. This is especially troubling because it sends the wrong message to prisons and jails around the country. If BOP doesn't follow the law, how can we expect others to?
You said that it took work from transgender people and advocates over the course of decades to create the previous rules. During that time, and since then, what have we learned about the conditions for trans people in the prison system.
Chase: The conditions for all people in prison are abysmal and inhumane, so we should start from that first premise. And then on top of that, trans people experience particularly harsh conditions because the sex-segregation of prison and the systematic anti-trans bias within the system make it almost impossible for trans people to survive.
Amy: In fact, trans people are the most vulnerable people in prisons and jails. Almost 40 percent of trans prisoners report being sexually assaulted in prison. And nearly 30 percent are placed in solitary confinement mostly because they are vulnerable.
Chase: One California study found that 59 percent of trans women in men's prisons in California had experienced sexual assault, while less than 5 percent of the general population reported sexual assault.
Let's take a step back. What do we know about transgender people who are in our criminal justice system and how this community compares to our general prison population?
Chase: Our entire criminal legal system is the product of the over incarceration and policing of people of color and this is also true of transgender people of color. In one survey nearly 50 percent of Black trans women reported having been incarcerated at some point in their lives.
Due to family rejection, discrimination in schools and workplaces, housing discrimination, and lack of access to health care and ID, trans people are disproportionately living in poverty and homelessness. Since we criminalize poverty in this country, that also drives trans people into the criminal legal system.
Not to mention that trans folks are often profiled as sex workers or engaged in the drug and sex trades to survive.
Amy: Too often prison and jail are used to deal with issues that could be far, far better handled in the community. But we've left incarceration as the only social safety net available in this country. It makes no sense.
What about the ACLU's involvement here. Can you talk a little about the transgender people the ACLU has represented?
Chase: We have represented prisoners who have been denied access to health care related to gender transition, including a group of Wisconsin prisoners challenging a terrible law that tried to restrict any government funding for gender affirming care, Chelsea Manning in her challenge to the Department of Defense, and many others. We have also worked collaboratively with prisoners on many policy issues, including in the many rounds of providing comments on proposed PREA regulations.
Amy: Back in 1994, we represented Dee Farmer in front of the Supreme Court (Farmer v. Brennan) in what has become the seminal prisoner rights case.
Chase: And then for the 20th anniversary we organized a conference called Deliberate Resistance to commemorate all the work that Dee did.
Amy: I was actually on the phone with Dee last week, and she is still fighting for the rights of trans prisoners. She's a remarkable person. And I am proud that the ACLU was able to represent her.
Chase: We also have been involved in many cases on behalf of trans prisoners and detainees who have been subjected to violence in police lock-up, jail, and prison and have worked to ensure that they are able to have their day in court. Even though there is so much work that remains, some amazing people have fought back against the many inhumane and often torturous conditions they have faced.
Amy: Chase and I are working on a case right now about health care for transgender people in prison. It's getting better in some places, but still too many prisons are denying people the lifesaving and life-affirming care they need.
Indeed, can you talk a bit about what would be a better set of conditions for transgender people in prison, and how the BOP rules supported those conditions?
Chase: The most important thing is to first get people out of prison. We incarcerate too many people, and a lot of our work has to be about disrupting the drivers of incarceration. People should be able to survive while they are locked up, released sooner, and have access to basic survival needs when they do.
The former BOP policy that was rolled back allowed for the actual prisoner to assess the conditions that would be safest for them. We need policies that provide care that people need, that recognize the gender that people are, and that ensure that people receive safer housing and access to programming.
Amy: One of the first things that prisons should do is treat prisoners like people — not just numbers.
These changes are a profound culture shift in prisons. And it needs to happen if they are ever going to become anything but the warehouses of horror that they now are. BOP's policy rollback is in the exact wrong direction. And it sends a message of disrespect, discrimination, and disregard that will have implications down the line.
“Warehouses of horror” is quite the image. What is the ACLU doing at this point, with the rollback of the rules, to support transgender people in prison?
Chase: The ACLU is working in a broad coalition of groups to try to identify what trans people in custody need in confinement settings across the country. We will keep filing lawsuits to ensure people receive health care and are not subjected to unconstitutional, cruel, and violent conditions.
Amy: It's important that we let people know what's happening and why it's important. Prisons like to do things quietly so you won't know, especially because the majority of the public can't see what's happening. We have to make sure that people know and understand what undermining the rights of our most vulnerable people actually means.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.