To understand the circumstances unique to the transgender prisoner, it is important to consider many aspects of human behavior. By utilizing the developmental, systems, and conflict perspectives, it is apparent that the mistreatment of transgender inmates, particularly male-to-female transsexuals housed in male facilities, often reflects society’s marginalization of and discrimination towards transgenders in general. In prisons, the transgender inmate routinely faces isolation, harassment and abuse.
Transgenders and the Correctional Facility
Linda Thompson had always considered herself to be female ever since she was a little boy. As Linda grew older she struggled with the internal conflict of having two identities; the man co-workers and the family saw her as, and the woman she was in her private life. At 6’3” and weighing more than 230 pounds, Linda excelled at her job working in the oil fields of Wyoming, but after she began the process of transforming her gender identity, her employer fired her. After no one else would hire her, Linda found herself homeless and turning to prostitution and petty crimes in order to eat and pay for her black-market hormone treatments. It was at this point in Linda’s life that she was arrested for stealing aluminum wire to sell for scrap and sentenced to four years in the Iowa state prison. Despite the fact that Linda self-identified as a female, she was placed in with the general male population. In her battle with prison administrators to assert control over her gender identity and receive hormone therapy, Linda eventually performed a drastic measure of self-treatment by removing her own penis and testicles with a razor blade. Prison administrators, however, viewed Linda’s act as a manipulative attempt to receive special treatment, and her request for hormones continued to be denied. While Linda’s case is one of extreme, her overall circumstances are not uncommon for transgenders incarcerated in U.S. correctional facilities. To understand what life is like for transgender inmates such as Linda, it is important to consider several aspects of human behavior, including those involving the developmental, systems, and conflict perspectives.
It is difficult to find a universally accepted meaning for the term transgender, as the subject (and the term itself) is complex, at once sexual, psychological, political, and cultural. This umbrella term was coined to be inclusive of several groups including transvestites, cross-dressers, intersexes, and transsexuals. The term transvestite usually describes a man who is sexually aroused by wearing female clothing, while a cross-dresser is someone, man or woman, who periodically dresses as the opposite sex. An intersex individual (formerly known as a hermaphrodite) is an individual born with ambiguous genitalia of varying degrees. A transsexual is one who is uncomfortable with his or her genetically determined sex and desires to live as the opposite gender (Johns, 1998). According to the pioneering sexologist, Dr. Harry Benjamin, there are several types of transsexual. The non-surgical type, though they may feel that they live within the body of the opposite gender, limit their expression of non-conforming gender to mannerism, behavior and dress. They may also enhance or diminish aspects of their physical appearance with padding or binding. Some non-surgical type transsexuals may also choose to enhance their cross-sex transformation with the use of hormones. Still others, the true transsexual – moderate or high intensity type, choose to physically change their anatomy through implants and/or sexual reassignment surgery [SRS] (Rutacille, 2006).
The rate of transsexualism in the general population is not easy to ascertain. The fourth edition of the Statistical and Diagnostic Manual of Mental Disorders (DSM-IV, 1994) estimates that the number of people seeking SRS annually in the United States to be approximately 1:10,000. This number has been criticized as too conservative, as the data used to calculate it are decades old. More accurate, argues Lynn Conway, professor of computer science at the University of Michigan and a transgender activist, is an estimate closer to 1:2500. She surmises that “the intrinsic prevalence of male-to-female [MtF] transsexualism must be on the order of ~1:1500 and may be even larger than that” (Rutacille, 2005 and Conway, n.d.). While there is no consensus among those who are working to understand the genesis of transgenderism, there have been significant discoveries that support its association with brain structure, specifically within the bed nucleus of the stria terminalis, a component of the hypothalamus (Zhou, Hofman, Gooren, & Swaab, 1997).
Background: Statistics on Incarcerated Transgenders
The number of transsexual inmates in jails and prisons in the U.S. is even less clear. The Transgender Law Center reports that in a 2003 survey of 150 transgenders in the San Francisco area, 14 percent had reported experiencing discrimination in jail or prison. This was not 14 percent of the respondents who reported going to jail or prison but 14 percent of the entire survey pool (Daley, 2005). But according to the documentary film Cruel and Unusual, an estimated 30 percent of transgenders in the U.S. have been incarcerated, which is three times the national average (Baus, & Hunt, 2006). However, Mark Bolton, deputy director of the King County, WA Department of Adult and Juvenile Detention claimed in a recent Seattle Times article that of the 55,000 inmates processed each year, “only a handful are transgender men and women” (Turnbull, 2006). Regardless of the actual numbers, the argument can be made that the population of transgenders in correctional facilities can only be increasing as the numbers of incarcerated continue to rise. In 2001, there were 1.3 million adults in state or federal prison, but by the end of 2006 the number had grown to over 2.2 million. At present, the U.S. has more imprisoned citizens than any other country in the world (Bureau of Justice Statistics, 2001 and ‘U.S. Prison Population’, 2006).
Developmental Perspective: Transgenderism
Transgenderism frequently manifests in early childhood. In transgender boys, there is a preoccupation for feminine activities such as playing with dolls or dress-up, along with a desire to play with girls and a rejection of typically boyish behaviors such as competitiveness and rough play. Transversely, the opposite holds true for female-to-male oriented girls. A transgender child will typically express a wish to be, or grow up to be, a member of the opposite sex. Transgender children frequently experience ostracism and rejection from family and peers, and as a result, transgender adolescents commonly develop diminished self-efficacy, express an aversion to school and drop-out. As transgender adults, there is a continued preoccupation with living as a member of the opposite sex by adopting cross-sex mannerisms, behaviors, and modes of dress. Some, for whom the distress is debilitating, may choose to acquire cross-sex physical characteristics through the use of hormones, electrolysis, and/or surgical alteration. However, regardless of the degree to which a transgender person expresses a cross-sex identity, without therapeutic and social support, the isolation, ostracism, and low self-esteem often persist (DSM-IV, 1994).
Systems Perspective: Society and Transgenders
The interrelation between society and transgenders as a subculture, and society and prisons are both germane to the issue of transgenders in correctional facilities when considered from the systems perspective.
In order to maintain social homeostasis, gender roles have traditionally been bifurcated by matching femininity with the female sex and masculinity with the male sex. Society also forms boundaries with regards to the level of deviance it will tolerate. As such, to ‘mainstream’ society, the transgender individual represents a system that has deviated too far from normative boundaries. In a negative feedback loop model, expressions of non-conforming gender have historically resulted in actions taken by the disapproving majority to stigmatize and quell the behavior, and/or to punish or confine the transgressor (Rudacille, 2005). (This claim was supported anecdotally by a recent television commercial for Entertainment Tonight, which promised to reveal to viewers during an upcoming episode the “shocking!” photographs of boxer Oscar De La Hoya wearing women’s garments. It aired during a broadcast of Oprah, the subject of which was, ironically, transgender youth.)
Although transgenders are somewhat more accepted today than in the past, they still find mainstream society to be a predominately closed system. Transgenders and other sexual minorities are considered to be outsiders, and for them harassment and discrimination are commonplace realities. Of all the local municipalities in the U.S., only about 80, along with eight states, offer anti-discrimination protection for transgender citizens (Rodriguez, 2007). The Sylvia Rivera Law Project [SRLP], (2007) reports that as a result, many transgenders find educational, economic and housing opportunities difficult to attain at best. However, this discrimination comes at a cost for all of society; some transgender males, particularly those in urban centers, engage in prostitution and increased risk of exposure to HIV, and suicide attempts and substance-related disorders are common (DSM-IV, 1994). Very often the burden falls to society to pay the cost for hospitalizations for those transgenders who are under- or uninsured, for costs incurred within the criminal justice system, and for wasted human agency.
Conflict Perspective: Society and Transgenders – Pluralist Theory of Social Conflict
While society tends to place transgenders together as part of an acronym for a larger gay, lesbian, and bisexual and transgender (GLBT) subculture, the relationship between the trans- community and other sexual minorities is sometimes strained. Politically, there is currently dissent on the part of some gay and lesbian rights groups on whether or not the inclusion of transgenders would block the passage of anti-discrimination legislation (Crain, 2007). Also, many transsexuals resent the fact that a large segment of mainstream society perceives them as gay men who want to be women. This resentment is often shared by gay men as well (Rutacille, 2005).
Systems Perspective: Society and Prison
Society has always had an imperative to control criminal behavior. Early forms of corrections in America were borrowed from English and medieval corporal punishment. Jails were used mainly to house debtors and those awaiting trial or execution. Later, deprivation of freedom became the preferred form of punishment, which led to the development of the prison model. Since that time, imprisonment has served several purposes including spiritual reformation, rehabilitation, punitive deterrence, and detainment. Since the late 1970’s, U.S. society has demanded a ‘tough on crime’ position from politicians, judges, and prison administrators, especially for drug-related crime (Reichel & Dammer, 2004). Politicians and even whole political parties risk losing favor if they are seen as too lenient with convicted criminals. The last 30 years have seen substantial increases in prison construction and funding for federal and local prisons. The Bureau of Justice reports that in 2003, the federal government spent nearly $61 billion on corrections expenditures and employment, which was an increase of 423 percent over 1982 (as cited in SRLP, 2007). Laws have been enacted that restrict judges from departing from harsh criminal sentencing guidelines (Glater, 2007), and correctional institutions are increasingly restricting privileges for inmates (Morain, 1998).
Conflict Perspective: Prison and the Transgender Inmate – Placement Issues
Several dynamics come into play when considering the circumstances of transgenders in correctional facilities from the conflict perspective. Prisons themselves are designed to allow one group, the public at large, to control another group, those convicted of criminal offenses. This control is manifested in the powerlessness of inmates to determine virtually all areas of their daily lives. Prisons control when inmates will sleep, when they will wake-up, when and what they will eat, what books they will read, what work they will perform, what medications and other healthcare they will receive, who they may associate with, and for some, the time and manner in which they will die. For transgender inmates, this powerlessness is compounded by the discrimination and abuse they receive at the hands of prison employees and fellow inmates.
Many transgender prisoners report that their oppression by the prison system starts from the very first moments of incarceration. It begins at placement, when incoming inmates are strip searched and segregated “based on their apparent genitalia” (Wilkinson, 2003, p. 14). Of course, for those transgenders who were living on the outside as women, this fundamental refusal to recognize their gender identity means that they will be housed at an all-male facility. In the vast majority of correctional facilities in the U.S., the only placement options for MtF transgender prisoners within a male correctional facility are administrative segregation (ad-seg), also known as ‘protective custody’, or in with the general prison population. ‘Ad-seg’ means being isolated and confined to a cell for 23 hours a day, and is reserved for those inmates who are at a high risk for being victims of violence or those who are deemed likely to commit violent acts. However, those opposed to automatic ad-seg for transgenders argue that such policies punish inmates simply for being transgender. In addition, inmates often complain of a feeling of ‘going crazy’ during long periods of isolation without stimulation, and indeed, in 1998, a U.S. Federal Court ruled in Davenport v. DeRobertis that “isolating a human being from other human beings year after year or even month after month can cause substantial psychological damage” (Baus & Hunt, 2006). Being placed in ad-seg also restricts the inmate from accessing educational, vocational, and drug rehabilitation programs (SRLP, 2007).
Conflict Perspective: Prison and the Transgender Inmate – Harassment, Assault, and Intimidation
Mistreatment, harassment, and abuse by prison staff and fellow inmates are central concerns for transgender inmates, and their high visibility makes them frequent targets of violence and sexual predation (American Civil Liberties Union National Prison Project [ACLU], 2005). According to the inmates interviewed by the Sylvia Rivera Law Project in New York, most abuse they encounter comes at the hands of correctional officers and may involve unnecessary frisks and strip searches, exaggerated punishment for infractions, and/or physical and sexual assaults. The isolation of ad-seg can also put inmates at greater risk of abuse from correctional officers. To compound the situation, correctional officers are rarely reprimanded or even reported for these violations. Also contributing to the problem is the risk of retribution the transgender inmate may face for filing a grievance. During his testimony before Congress during a hearing on the Prison Rape Elimination Act, Gabriel Arkles, a legal advocate for transgender prisoners describes the retaliation:
My clients have been punched, choked, thrown against walls, threatened with murder, framed with contraband, described to other inmates as an informant, and threatened with all of these acts in retaliation for receiving a letter or a visit from me or my colleagues or for filing a grievance. Understandably, many transgender, intersex, and gender nonconforming inmates falter in their determination to bring a lawsuit or press their grievances in the face of these acts. As a legal service provider, it is difficult to contact my clients when I know from them that correctional officers are reading my letters and even claim to listen in on attorney-client visits. It is also frustrating not to be able to contact someone I believe I can help because she believes the officials’ threats that they will kill her if I do (SRLP, 2005).
For the most part, people ignore the plight of vulnerable prisoners such as transgenders in part due to society’s view that assaults and rapes are an expected part of the punishment of incarceration (Weisberg & Mills, 2003). Transgenders’ low position in the prisoner hierarchy, which ranks inmates based on fighting ability and ‘manliness’, also makes them disproportionately vulnerable to violence and intimidation. More dominant inmates view transgenders as weak and easy targets for harassment and assault, and in many prisons and jails transgenders are often treated as sexual commodities to be owned and sold. While threats and acts of rape are believed to be widespread, coerced sex is even more prevalent. Often, sex is exchanged under pressure for protection or repayment of a debt. Transgender prisoner advocates report that oftentimes there is collaboration between correctional officers and the prisoners who sexually exploit their fellow transgender inmates by means of forced prostitution (SRLP, 2005 and Daley, 2005). In the 2005 SRLP report “Its War in Here”, Sunday, a transgender prisoner, related her thoughts on sexual violence at her institution, saying ‘“If you’re not fucking somebody, then you’re gonna get fucked by everybody.”’
Due to the lack of privacy and the often indifferent attitude of prison administrators, accessing shower facilities safely is a routine difficulty for transgenders in correctional facilities. Dean Spade, an attorney and advocate for transgender prisoners, discusses the experience of two clients:
I have two clients in the same facility. I heard from one, a trans woman, that she was not being allowed to shower alone, and was afraid to shower in the group shower because she has breast and other feminine characteristics and already gets a lot of sexual attention. She feared assault… so she wasn’t showering at all. My other client, a person with an intersex condition, was being allowed to shower alone… It seemed clear that both of these clients were vulnerable to assault in group showers. The superintendent told me “Our policy is to prevent pregnancy.” He was making it clear that he was not concerned about rape, only about making sure that the intersex client did not become pregnant (SRLP, 2005).
Conflict Perspective: Prison and the Transgender Inmate – Denial of Medical Care
Currently, transgenderism is classified in the DSM-IV (1994) as Gender Identity Disorder, a psychiatric condition which incorporates four specific characteristics: A) having a strong and persistent cross-gender identification [a wish to be or insistence that one is of the opposite sex] that is not merely a desire for the opposite sex’s perceived cultural advantage, B) persistent discomfort regarding one’s assigned sex or gender role, C) having no concurrent intersex characteristics, and D) having evidence of clinically significant distress or impairment in social, occupational, or other important aspects of life. Experts in transgender health issues consider psychotherapy and/or medical treatment sought by transgenders to be crucial for their well-being, and the Eighth Amendment requires that the incarcerated receive “adequate medical care”. In Meriwether v. Faulkner, it was noted by the U.S. Seventh Circuit Court of Appeals that transgenderism should be treated as any other psychiatric condition and accords a “serious medical need.” Despite this, however, correctional institutions have been notoriously lacking in the provision of treatment for transgender inmates (Mann, 2006 pp.97-98). Even the most basic form of treatment – allowing transgender inmates to wear gender appropriate clothing or make-up – is denied by most facilities (RSLP, 2007). Hormone treatment is another contentious issue. Citing ‘taxpayer disapprobation’, the majority of facilities simply deny hormone treatment, even for inmates who received them prior to incarceration, and in those facilities that do provide hormones, “such care is often inconsistent, featuring incorrect dosages and arbitrary termination of treatment”. In cases where MtF transgender inmates are allowed estrogen, they often must provide documentation of prior hormone therapy in order to receive prescription approval, which is all but impossible for those transgenders who relied on black-market hormones (Richard, 2000 and SRLP, 2007).
Change through empowerment is a part of the conflict perspective and through lawsuits and advocacy on their behalf transgender inmates are beginning to challenge the system. In Farmer v. Brennan, which was brought before the U.S. Supreme Court in 1994 on behalf of a transsexual inmate, the Court ruled that prisoner rape is a violation of the Eighth Amendment. The Eighth Amendment to the U.S. Constitution protects prisoners from “the infliction of cruel and unusual punishment” (ACLU, 2005). There is also the Prison Rape Elimination Act (2003) passed by Congress with a recommendation to have the Attorney General develop national standards for “enhancing the detection, prevention, reduction, and punishment of prison rape” and requires the adoption of such standards by all prisons receiving federal grants. Also, earlier this year a U.S. District Judge ruled that inmate Jenniffer Spencer must receive psychotherapy and estrogen while awaiting trial in a lawsuit against the Idaho Department of Corrections for failing to provide medical treatment for her GID, and in 2004 the State of Virginia agreed to treat transsexual inmates with hormones after losing a lawsuit (‘Virginia Agrees’, 2004). However, many legal challenges still result in unfavorable decisions for transgenders. Earlier this year, a California inmate who claimed she was raped lost her case against six prison workers whom she accused of failing to protect her. Her lawsuit also requested that the court force prison officials to create a policy to protect transgender inmates. The court dismissed the claim, stating that she could not speak for other inmates (‘Transgender Inmate’, 2007).
The term transgender refers to a diverse group who fall along several points of the gender continuum, and whose exact numbers in the general population, as well as prisons and jails, are unknown. For most, transgenderism is an immutable condition that can show up as early as childhood. Much of society rejects transgenders with great prejudice, and as a result, many transgenders acquire maladaptive behavior patterns such as drug use and criminal activity. While our society has chosen to restrict the freedom of convicted criminals for some time, its correctional facilities are ill-suited for handling a growing transgender population. Most if not all transgender prisons experience various forms of mistreatment and exploitation while incarcerated, by prison staff as well as fellow inmates. Denial of appropriate medical care is another serious issue for these inmates, though legal challenges are increasing sought by transgender inmates to address inequities in prisoner care.
In light of the violence and discrimination directed at transgenders in this culture, it is not unreasonable to assume that much of their claims of mistreatment in correctional facilities are based in truth. While it seems that change is slowly beginning to occur, undoubtedly, it will not come soon enough for some. Until that day, “Transgendered prisoners’ position behind bars, underneath the weight of so much oppression, makes their everyday survival a series of heroic acts, a heroism that defines the transgender movement” (Rosenblum, 2000).
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Submitted by: Christopher Reina
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