"I'm Still Gonna Be Me": Leading the Charge for Change in Prisons and Everywhere Else
I first met Tatyana a few years after the Wisconsin legislature passed the Inmate Sex Change Prevention Act – a cruel piece of legislation aimed at denying urgently needed healthcare to any transperson in custody in Wisconsin.
By that time, she had already signed up to be a plaintiff in the challenge to the Wisconsin law filed by the ACLU and Lambda Legal, and I had already met most of the other plaintiffs, including Kari, Andrea, and Lindsey. But even though I had a pretty good sense of what these women were facing, it was still hard to fathom how these women managed to survive the challenges and indignities of living in a male prison – a near universal experience for transgender women in U.S. prisons where corrections agencies house prisoners based on birth-assigned gender, rather than lived gender. Despite risk of retaliation, Tatyana and the other plaintiffs in Fields v. Smith all courageously stepped up and stayed with us for the long fight until a federal court struck down this law as unconstitutional in 2010.
Though Tatyana's challenge to Wisconsin's law was successful and several other federal courts have similarly found bans on treatment for gender dysphoria unconstitutional, too many transgender individuals in prison continue to fight for years to try to get their basic healthcare needs met or to be protected from assault. To assist them in their fight, the ACLU and NCLR today released a new "Know Your Rights" resource to help other transgender prisoners demand to be treated with dignity.
When Wisconsin legislators passed the Inmate Sex Change Prevention Act at the end of 2005, they decided to tell Wisconsin prison doctors how to practice medicine, barring prison medical staff from treating transgender prisoners with the basic care they need, regardless of the health consequences. Tatyana, Kari, Andrea, and Lindsey had all taken hormone therapy for several years, so denying them their hormone therapy was devastating for them – causing depression, anxiety, and terror as their minds and bodies suffered the impact of abruptly stopping the medication they relied on to survive.
Like so many people caught up in the criminal justice system, Tatyana had a difficult childhood and then got into trouble, committing the identity theft crimes that landed her in prison. Growing up she would lie in bed, confident she was a girl and praying to wake up the next morning with a girl's body only to be disappointed when she woke up the next morning with the same body that she believed betrayed who she was.
When she testified, Tatyana minimized the risks she faced as a woman in an all-male prison, saying that she avoided tight clothing and acting flamboyantly to keep attention from being drawn to her. But she had to admit that other prisoners and staff said offensive and threatening things to her because they saw her as gay, feminine, or just different.
Because of her gender identity, Tatyana was stigmatized. Staff and inmates harassed her and circulated rumors about her promiscuity. "I'm termed as a homosexual," she said. "I'm more prejudiced against, more closely watched."
One of the most disturbing parts of Tatyana's case was that the state of Wisconsin actually argued that the law was passed to help transgender women by preventing them from being assaulted by male prisoners because of their feminine appearance. The judge was asked to believe that the same Wisconsin legislators who said they wanted the law to prevent "prison extreme makeovers" at taxpayer expense had the best interests of these transgender prisoners at heart.
But when asked about whether taking hormones would increase her vulnerability, Tatyana's answers couldn't be clearer: Denying her hormones was not going to end her vulnerability to harassment and assault, "[b]ecause I'm still gonna be me. I'm still gonna be female."
Unfazed, Tatyana cannot turn back from living her life as a woman. "This is something that I've been dealing with all of my life and been attempting to take those steps to become, like I said, something that I've known I was in my mind all of my life." And, ultimately, the court soundly rejected the state's argument and struck down the Wisconsin law.
As difficult as it was for them to do so, Tatyana, Kari, Lindsey and Andrea spoke up – not only for themselves, but also for those who would come after them. Their struggles and their bravery – as well as those of , Chelsea Manning, and many others – have made, and will continue to make, things a little better for those who follow.
My colleagues at the ACLU and NCLR hope that "Know Your Rights: Laws, Court Decisions, and Advocacy Tips" will help prisoners, their friends, family members, and other advocates to continue the fight to make things better for transgender people in prison. The courage and strength of people like Tatyana has moved the ball forward, but so much more work remains to be done.
We hope this new publication will assist with the work that remains.
Learn more about transgender rights and other civil liberty issues: Sign up for breaking news alerts, , and .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Prisoners' Rights
Criminal Law Reform
ACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law AllowsACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law Allows
WASHINGTON – A federal lawsuit brought today by the American Civil Liberties Union, ACLU of D.C., and Jenner & Block LLP challenges the Federal Bureau of Prisons (BOP) for unlawfully incarcerating people longer than the law allows under the First Step Act. The lawsuit contends that the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated. Signed into law in 2018 by then-President Donald Trump, the bipartisan First Step Act was designed to reduce the population in federal prisons, reform extreme sentencing laws, and provide programming and reentry transition services to people in prison. Central to the First Step Act is a system of earned time credits, which allows people in prison to earn time off their sentences and time out of prison by participating in rehabilitation programs. Through the First Step Act, Congress unambiguously ordered BOP to move people out of prison when they meet certain requirements to use their earned time credits. Instead of faithfully following the mandatory law, BOP adopted a regulation treating the law as optional. As a result, thousands of people, who should already be back in their communities and with their families, remain in prison. “Every extra unlawful day our clients spend in prison is a serious injustice,” said Emma Andersson, deputy director of the Criminal Law Reform Project at the ACLU. “It is egregious that the Bureau of Prisons is imprisoning people for months longer than the law allows. The government must follow through on its legal obligation to get people out of prison on time and back into their communities, where they belong.” Additional comments below from: Vanessa Crowe, plaintiff: “Time is what I owed for my wrongdoing, and I have paid my time. But I should not have to spend more time in prison than the law allows. I often reflect on what I will miss during the months after when I should be out of prison. I will miss work and lose out on wages that would help me get back on my feet. I could be a tax paying citizen instead of a burden on society. But most of all, I will miss more precious time with my family. My family and I are ready to tum the page on this period in our lives — we are all ready to start a new life, a life with purpose, hope, and healing together. I want to start that life when I am legally entitled to start it-not five months later.” Arthur Spitzer, senior counsel at ACLU of D.C.: “There’s no excuse for the Bureau of Prisons to pretend not to understand Congress’s clear command that people who have earned the right to early release must be released. This law has been on the books for six years. The Bureau of Prisons has had plenty of time to understand it. Law enforcers should obey the law.” Betsy Henthorne, partner at Jenner & Block: “It has been six years since the First Step Act was signed, but despite Congress’s clear directives, the Bureau of Prisons continues to hold thousands of people in prison longer than the law allows. We should and do expect better—it’s past time for the BOP to ensure that those who have earned their release are able to return home to their families and communities according to the law Congress passed.” -
Press ReleaseSep 2024
National Security
Prisoners' Rights
ACLU Statement on Senator’s Discriminatory Questioning of Civil Rights Leader Maya BerryACLU Statement on Senator’s Discriminatory Questioning of Civil Rights Leader Maya Berry
WASHINGTON — American Civil Liberties Union Executive Director Anthony D. Romero, released the following statement regarding Sen. John Kennedy’s questioning of Maya Berry, the executive director of the Arab American Institute: “The American Civil Liberties Union condemns this discriminatory and vitriolic attack on Maya Berry, a renowned civil rights leader, and joins the chorus of voices from across the political spectrum in denouncing these remarks. “To use a hearing about the disturbing rise in anti-Muslim, anti-Arab, and antisemitic hate crimes to launch personal and discriminatory attacks on an expert witness they’ve invited to testify is both outrageous and inappropriate. This kind of racist rhetoric should be widely condemned. It has no place in Congress, or in politics. “Maya Berry is a courageous and compassionate leader who has spent her entire career working to strengthen our democracy and protect the rights of Arab American communities, and other vulnerable communities who face discrimination and targeting because of their ethnicity, race, or religion.” -
Ohio Supreme CourtSep 2024
Prisoners' Rights
State v. MorrisState v. Morris
This case in the Ohio Supreme Court concerns the scope of the state constitutional right to counsel. The police in this case interrogated the defendant, Isaiah Morris, without mentioning his already-appointed counsel or asking him to waive his right to counsel. This procedural circumstance risks confusing criminal defendants and undermining their state constitutional rights. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Ohio and WilmerHale, filed an amicus brief arguing that merely providing a defendant notice of Miranda rights falls short of the bare minimum requirements for a valid waiver. -
Oregon Supreme CourtSep 2024
Prisoners' Rights
Huskey v. Oregon Department of CorrectionsHuskey v. Oregon Department of Corrections
This case in the Oregon Supreme Court centers on whether Article I, Section 41(3) of the Oregon Constitution, which provides that Oregon prisoners lack legally enforceable rights to prison jobs and training, bars prisoners from collecting damages relating to lost prison jobs and training caused by the alleged breach of a settlement agreement by prison officials. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Oregon, filed an amicus brief arguing that that plaintiff Arnold Huskey, an incarcerated individual whose identity was used in Department of Corrections training materials, is entitled to damages notwithstanding Article I, Section 41(3), because plaintiffs in contract disputes never have to show standalone legal rights to the damages they claim. Instead, they need only show that the damages were reasonably foreseeable consequences of the alleged breach of contract.