The SPLC is requesting documents from the Federal Bureau of Prisons (BOP) and the Department of Justice about a Trump administration decision to weaken protections for transgender people who are incarcerated by requiring that they be housed according to their “biological sex.”
The SPLC and partner organization Lambda Legal will review the documents and decide what legal action, if any, they will take to protect transgender people from heightened risks of sexual victimization in the federal criminal justice system.
“The rollback of protections for transgender people in the federal prison system has no penological basis,” said David Dinielli, deputy legal director for the SPLC. “Instead, it appears that the BOP may have acted at the behest of the Alliance Defending Freedom, an SPLC-designated anti-LGBT hate group that has defended state-sanctioned sterilization of transgender people abroad and has recommended use of the terms ‘cross-dressing’ and ‘sexually confused’ in place of the term transgender.”
The SPLC’s Freedom of Information Act (FOIA) request, which was filed late last week, is for all documents and communications related to changes to the Transgender Offender Manual. The changes undercut compliance with the federal Prison Rape Elimination Act (PREA), a federal law requiring prisons to detect, prevent, reduce, and punish sexual assault of prisoners.
“Through this request, we hope to uncover what the BOP considered when amending its housing policy, including whether the changes reflect merely its own biases and/or those of an outside, anti-LGBT group,” Dinielli said.
The Transgender Offender Manual was issued in January 2017. It followed the U.S. Bureau of Justice Statistics’ finding that more than one in three transgender people in prison say they were made a victim of sexual abuse by either staff or other incarcerated people in the previous year – a rate nearly 10 times that of the general prison population.
The manual specifically sought to help prison officials comply with the requirements of PREA. Passed by Congress in 2003, the act sought to address crisis levels of sexual abuse and assault of people in prison, to which lesbian, gay, bisexual, transgender and gender nonconforming incarcerated people are particularly vulnerable.
However, last month, the Trump administration released changes to the manual, specifically instructing federal prisons that incarcerated transgender people be housed according to their “biological sex.” It further instructed that they should be housed according to their gender identity “only in rare cases.” These instructions conflict with the clear guidance of PREA, which mandates that housing assignments must be determined on a “case-by-case basis” to ensure transgender peoples’ health and safety while in custody.
Lambda Legal, a national organization dedicated to the civil rights of LGBT people, joined the SPLC in filing the FOIA request.
“Local, state, and federal facilities, including jails, prisons, re-entry programs, and juvenile systems, have a constitutional obligation to protect all people in custody,” said Lambda Legal Staff Attorney and Criminal Justice and Police Misconduct Strategist Richard Saenz. “Yet again, the Trump-Pence Administration is turning its back on those most vulnerable, exposing transgender people in prison to harassment, abuse, and violence, as they have done in schools, workplaces, health care systems, and the military.”