Transgender People in the Criminal Legal System: Harassment and Sexual Assault

Video Credit: NBC News

Individuals who identify as transgender are more likely to experience police bias and are also more likely to become incarcerated than those who identify with the gender binary, research shows. In a survey conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, they found that: “One-fifth (22%) of respondents who have interacted with police reported harassment by police due to bias, with substantially higher rates (29-38%) reported by respondents of color.” Even more alarming, but unfortunately unsurprising, is that the percentage of harassment goes up depending on one’s race. Further, The National Transgender Discrimination Survey also reveals that 47% of “Black trans people have been incarcerated” at some point in their lifetime.

Photo Credit: Prison Policy Initiative

Harassment and Sexual Assault

Police bias is just one of the factors that contributes to the higher rates of exposure to the criminal legal system along with the higher levels of incarcerated transgender people. The rates of harassment do not decline once a transgender individual is incarcerated, either. Many transgender people will experience harassment and sexual assault from the guards and other inmates during their time in prison or jail.

“… they are often forced to stay in prisons according to their assigned sex at birth or genitalia at the time they were arrested, transgender inmates face greater risk of assault, discrimination, abuse and humiliation…”

Most often, transgender individuals are assigned to prisons that reflect their sex assigned at birth, even if that is not how they identify. Federal data, via The National Center for Transgender Equality, provides that transgender people are ten times more likely to experience sexual assault than the rest of the prison population. The proposed solution? Usually, transgender individuals are segregated and put in solitary confinement for their “protection,” which can lead to numerous psychological issues if they are left there for a prolonged amount of time.

“When … you have people that don’t fit into one category cleanly or they don’t identify with the category that you put them into, it really exposes what’s been a fundamental problem with carceral spaces is that there is overall punitive retributive nature to it”

Kristie Puckett-Williams, Smart Justice Manager for the American Civil Liberties Union of North Carolina

Attempts at Reform

One of the major attempts at combatting violence and sexual assault in prisons is the federal Prison Rape Elimination Act (PREA), which “requires prisons, jails, community confinement facilities and immigration detention facilities to comply with standards to protect vulnerable people from sexual abuse.” This includes items such as interviewing transgender inmates, when they first arrive at a facility, to determine “where they would feel safest” (i.e., a men’s or women’s prison) and then every six months after, among other guidelines.

“If PREA is not being enforced, and states’ compliance with the PREA standards is so uneven, then trans people across the nation are being deprived of even the most basic rights and protections behind bars.”

Out of 21 states, only one— Pennsylvania—fully complied with PREA standards. Even with the "risk of losing 5% of their federal prison funding," there are no "no benchmarks for states to prove that they are placing trans prisoners on a case-by-case basis." Although PREA has made the right steps toward change, it should be modified so that carceral facilities will be held accountable if they fail to comply with the law.