Gender, Psychology, and Justice: The Mental Health of Women and Girls in the Legal System - Linda Wolfe 2014
Transwomen in the Criminal Justice System: Sans Justice
Specific Populations of Justice-Involved Women and Girls
Alexis Forbes and Kevin L. Nadal
Transgender Women and the Police: Denise’s First Encounter
Denise is an eighteen-year-old Latina transgender male-to-female (MTF) woman who just graduated from high school in a large metropolitan city. Denise, who was born a biological male named Dennis, began to explore her transgender identity when she was fourteen years old. She had always felt like a girl for as long as she could remember. For instance, when she was younger, she had liked to play with her sisters’ dolls and sometimes liked to wear her mother’s dresses, jewelry, and makeup in private. Because she was her parents’ only “boy” and because she had never met any transgender people in her life, she knew she would not be accepted. So she hid this part of her identity as best as she could. Just a few months before her fifteenth birthday, she told her parents that she was transgender and that she preferred to be called “Denise.” Her father exploded when he heard this announcement and kicked her out of the house; her mother began to cry, but did not stop her father from disowning and humiliating Denise.
Denise immediately ran to her childhood friend Claire—an African American female. With Claire’s parents’ permission, Denise stayed at their home and continued to resume her life as a high school student. After weeks went by, Claire’s mother tried to talk to Denise and ask her what her options were, but did not want Denise to be living on the streets. Denise felt as though she was being a burden, so she decided to leave in the middle of the night while Claire’s family was sleeping.
The next day, Denise decided to contact Lorial—a Latina transgender woman whom she had befriended on the Internet. Lorial, who is in her early twenties, had been kicked out of her house when she was around Denise’s age. Lorial gladly took Denise in, but she asked Denise to help pay the rent. Denise agreed and realized that she would have to drop out of school in order to find a full-time job so that she could support herself.
Lorial became the mentor that Denise needed in her life. She validated Denise’s experiences and shared her own story of how her own parents were violent when she came out to them. Lorial also gave Denise some of her old clothes, so that Denise could start wearing women’s clothing openly for the first time in her life. Denise was grateful to have Lorial in her life and was especially grateful that she could finally have a close friend whom she could relate to.
After a few weeks, Denise asked Lorial about her own transitioning process, as it was clear that Lorial was “passing” as a cisgender woman (i.e., she had visible breasts and long hair, she dressed femininely, and she had a higher-pitched voice). Because Denise was a minor (and thus her parents would have to consent to her acquiring hormones), she would be unable to legally begin her physical transition into her true gender identity. Lorial offered Denise some of her hormone injections and told her to find a good job, so that she could get her own hormones. Lorial also encouraged Denise to save money for breast implants, which was the first gender-affirming surgery that Lorial got when she was eighteen years old.
Denise began to apply for any job that she saw was available, including retail, restaurant, and other service jobs. During this search, she started to notice that people treated her differently and realized that it was because of the way she presented. For example, when she walked through the shopping mall in her feminine clothing, she heard people yelling “she-male” and “tranny” as they passed her. When she inquired about “hiring” signs in store windows, employees would quickly tell her that they were no longer hiring. When she asked one store manager why their “hiring” signs were still hanging, he told her, “Oh, we’ll take them down later.”
Two months went by, and Denise was not able to find a job. Lorial was patient with her, but reminded her that she needed to help pay for the rent. Lorial suggested that Denise could “walk the stroll” and see if she could make any money that way. Denise was terrified of the idea of becoming a sex worker, but she viewed it as the only viable way to make money quickly. Lorial told her that she had been a sex worker off and on for the past several years and that it was a guaranteed way to make money. Denise reluctantly agreed and decided it was her only option.
The first time that Denise walked the stroll, she was terrified. When a client approached her, she was hesitant, but she did her best to appear confident. She managed to get through the incident without any injury and decided to try it again. She met a few new clients every other night or so. A few clients became regulars and she found herself making a steady income.
After several months, Denise was walking to her regular spot when a man pulled his car over and asked her to come home with him. When she approached his car, the man asked her, “How much for what?” Denise replied, “Fifty dollars for a blowjob and a hundred dollars for the whole thing.” The man revealed that he was an undercover police officer and arrested her.
When they arrived at the police station, the officer announced to his friends, “Just picked up another tranny.” The other officers began to laugh, when another one said, “Where are you gonna put him?” They knew that they were not supposed to lock her up with the male inmates, but they did not want to put Denise with the female inmates either. The officer decided to handcuff Denise to a bench while he consulted with his supervisor.
As exemplified through Denise’s story, transgender women and girls endure discrimination and maltreatment in almost all aspects of their lives. Their interactions with the justice system often expose the institutionalized transphobic discrimination by police, correctional systems, judges, and discriminatory laws. While there have been some landmark legal cases that have improved living conditions for transgender women in America (for a review see Forbes 2014), many aspects of the criminal justice system retain some inherent transphobia and expose the extent to which legal remedies can benefit transgender women and girls. In this chapter, we outline the experiences of transwomen (i.e., transgender MTF women) in their interactions with the justice system. We use statistics and qualitative research from peer-reviewed journal articles, research findings, national surveys, and publications from advocacy groups who provide services to transgender women who have been perpetrators or victims of crime. We argue that the criminal justice system harms transwomen and transgirls more than it helps them, by highlighting how the criminal justice system (i.e., police, prisons, and the courts) are inherently incompatible with the needs of transwomen in the United States. We first provide definitions about gender nonconformity and transgender identity, while reviewing the current circumstances of transgender Americans. Second, we explore the discriminatory experiences of transgender women, including acts of intimate partner violence and hate crimes. Third, we discuss the problems common within transwomen’s interactions with police officers and within correctional and detention facilities. Finally, we examine the mental health aspect of transgender identity and recognized treatment and therapy practices.
The complications in describing the trans-identified and gender-nonconforming (GNC) community arise because individuals’ labels of their gender, gender identity, and sexual orientation are often reliant on context. However, the term “sex” has been consistently defined as having a biological basis in that individuals’ sex is determined through internal reproductive organs and sex chromosomes. With the exception of intersex people, who may have both male and female sex characteristics (Hughes et al. 2006), the majority of Americans are classified at birth as either male or female.
Gender is comprised of a set of culturally constructed norms, feelings, attitudes, and behaviors that are stereotypically associated with the biological sexes, male and female (American Psychological Association Council of Representatives 2011). The way in which these gender norms present or manifest is reliant, to a certain extent, on an individual’s level of identification with the male or female gender. Gender is not a biological condition; therefore, anyone can identify as male or female.
Gender nonconformity (GNC) occurs when someone exhibits behaviors that are “incompatible” with the gender-normative behaviors that are expected of their birth-assigned sex. For example, if someone’s birth-assigned sex is male, it is GNC for that person to wear a dress or to have stereotypically feminine interests. In addition to endorsing or expressing sex-incompatible norms, GNC people may view gender as a set of characteristics on a spectrum as opposed to viewing gender as discretely masculine or discretely feminine. In fact, many GNC individuals identify as having a combination of characteristics that correspond to both male and female gender identities. GNC people may sometimes report that they identify as “genderqueer,” which means that they have no absolute gender identity and/or they identify as neither male nor female (Marksamer 2011).
Having an understanding of the complexities and lack of restrictions on norms and behaviors associated with sex and sexual orientation is a necessity when working with or describing the transgender population. As the fight for equal civil rights and protections for transgender people intensifies, so does the validation of the complex sexual and gender identities that are most evident in the transgender and GNC (TGNC) group.
Experiences and Demographics of Transgender People
The National Transgender Discrimination Survey (NTDS) (Grant et al. 2011) has provided comprehensive information about the lives of TGNC people in America, and is an invaluable resource for researchers, advocates, and members of the TGNC community. Information was gathered from 6,450 TGNC people about a range of topics, including gender identity, sexual orientation, poverty and homelessness, mental health, HIV, social and systemic discrimination, and experiences with the criminal justice system. The complexity of gender and sex among those in the TGNC community was evident in the NTDS participants’ reporting of their gender identity and in their labels for their gender identity (Grant et al. 2011). Sixty percent of the people sampled in the NTDS were assigned male sex at birth, and the largest portion of respondents (41 percent) primarily identified as female. The other 58 percent identified either as male (26 percent), as “both genders” (20 percent), or as “self-identified” (13 percent). Other than the term “transgender,” which was the most popularly used term, participants reported strongly identifying with terms such as “MTF” (male-to-female), “transsexual,” “gender-nonconforming,” “FTM” (female-to-male), “genderqueer,” “two-spirit,” “cross-dresser,” “androgynous,” “third gender,” “feminine male,” “masculine female,” “intersex,” and “drag king” or “drag queen” (Grant et al. 2011). These terms stand in strong contrast to the more popularized concept of cisgender people (i.e., those individuals who identify with their birth sex), who tend to recognize only the dichotomous categories of male and female. Transgender identity does not determine sexual orientation. Transgender people might identify in multiple ways, with 31 percent identifying as bisexual, 29 percent as lesbian, 23 percent as heterosexual, 7 percent as queer, and 7 percent as asexual. Two percent of them used other terms to describe their sexual orientation.
High rates of unemployment and underemployment contribute to the high rates of homelessness for transgender people (Grant et al. 2011; Mottet and Ohle 2003; Quintana et al. 2010; Xavier 2002). Many transgender people report not feeling safe in their housing situations and receiving hostility and insensitivity from neighbors and housing staff. An overwhelming number of transwomen who have sought help from homeless shelters were denied access and/or benefits that the shelter readily provides to cisgender women (Mottet and Ohle 2003). When transgender women were accepted at homeless shelters, they were typically housed with and harassed by cisgender men. Homeless shelters are not centers of refuge for transgender women. After being accepted at a shelter, transgender people experience harassment (55 percent), physical assault (25 percent), and sexual assault (22 percent) (Grant et al. 2011).
Discrimination against Transgender People
Because most Western societies accept and promote a gender binary on systemic, institutional, group, and individual levels, many cisgender people are less accepting of the diverse ways in which others experience or express gender. This gender binary may promote heteronormativity, in which all people are expected to act in accordance with their birth sex and subsequent gender roles. As a result of this, TGNC people are discriminated against in a spectrum of ways—judged, mocked, or punished when they behave in GNC ways; ridiculed or assaulted when they don’t “pass” as the gender they identify with; or harassed or questioned when they do not match what is traditionally “male” or “female.”
“Transphobia” can be defined as “an emotional disgust toward individuals who do not conform to society’s gender expectations” (Hill and Willoughby 2005, 533), while “genderism” is “an ideology that reinforces the negative evaluation of gender non-conformity or an incongruence between sex and gender” (Hill and Willoughby 2005, 534). “Transphobia” is often viewed as a parallel term to “homophobia,” in which individuals are fearful of gay, bisexual, and lesbian people, while “genderism” may be a parallel term to “heterosexism,” which describes the subtle ways in which individuals may be prejudiced towards gay, bisexual, and transgender persons.
Transphobic and genderist discrimination may manifest in an array of ways. These types of discrimination may at times be more overt (e.g., hate crimes), and at other times the discrimination may be more subtle. Transphobic and genderist discrimination may manifest interpersonally (e.g., by cisgender people) as well as systemically (e.g., through institutions and the media).
While there has been a dearth of literature involving antitransgender hate crimes, one study revealed two major findings: (1) hate crimes toward TGNC people are especially violent, in comparison to hate crimes against other groups, and (2) transgender victims are targeted for more complex reasons than their gender variance alone (Stotzer 2008). Another report found that from the beginning of 2008 to the middle of 2009, there were more than two hundred antitransgender murders worldwide, equaling approximately nineteen transgender murders per month (Nadal, Skolnik, and Wong 2012). The Transgender Violence Tracking Portal (TVTP 2014) indicated that there were 102 reports of antitransgender violence worldwide from January 1, 2014, to April 30, 2014. The report specified that almost 10 percent of all reported violence against transgender people targeted transgender young people under the age of eighteen years. The report also cited that out of the 102 antitransgender murders, thirty-six persons were shot multiple times, fourteen were stabbed multiple times, eleven were beaten to death, three were burned to death, three were dismembered/mutilated, two were tortured, two were strangled, and one was hanged. One had her throat cut, and one was stoned to death.
The gender binary may impact the way discrimination may manifest for the various subgroups under the transgender umbrella. First, gender presentation is one determining factor that may influence the types of discrimination a TGNC person may experience. Pre-op transgender people (i.e., those individuals who do not complete gender-affirming treatment like hormonal treatment or surgeries) may have difficulty in “passing” as their self-identified gender identity (i.e., their physical appearance does not match the gender that they identify with or feel most comfortable with), which may result in everything from hate crime violence to subtle stares or biased behavior. Conversely, post-op transgender people (i.e., those individuals who do complete gender-affirming treatment like hormonal treatment or surgeries) may have an easier time “passing” in that their physical bodies may match the way they identify psychologically and emotionally. However, these individuals may still experience discrimination if they still do not “pass” as the gender they identify with or when people discover that they are transgender. Finally, it is necessary to acknowledge that other multiple marginalized identities may further exacerbate the types of discrimination that a transgender person may experience. For example, most of the known antitransgender murders in 2013 and 2014 were of transgender women of color, particularly Black transwomen. When TGNC people are also members of other marginalized groups (e.g., people of color, people with disabilities, etc.), they may experience multiple levels of discrimination that may affect the way they are treated, as well as the way they cope with various stressors in their lives.
Transgender Women and the Criminal Justice System
While discrimination may occur towards transgender people in all aspects of their lives, discrimination within the criminal justice system may especially prevent transgender women from having access to justice. For instance, when transwomen are victimized by hate crimes, these crimes are often underreported because of fear of being retraumatized or fear of being mistreated by police officers. Similarly, when transgender women experience micro-aggressions by judges, lawyers, and police officers, they may view the criminal justice system as being unfair, biased, or cruel, preventing them from seeking justice in the future.
Transwomen Survivors of Intimate Partner Violence and Hate Crimes
The National Coalition of Anti-Violence Programs (NCAVP 2013) reports that transgender people, especially transgender people of color, are disproportionately affected by intimate partner violence (IPV) in at least two ways. First, transgender people were 2.5 times more likely than nontransgender survivors to experience IPV in public places. Second, transgender people were almost twice as likely as nontransgender people to experience physical violence in cases of IPV.
Transwomen are also disproportionately affected by hate violence, also known as hate crime (NCAVP 2014). Types of hate violence include threats and intimidation, sexual assault, verbal harassment, and physical violence. One sample of data collected in 2013 (n = 2,001) indicates that there are at least six ways in which hate crime impacted transwomen at higher rates than it impacted cisgender survivors. First, transgender women were more likely to experience discrimination as a form of hate violence than cisgender people, while also experiencing harassment at rates 1.8 times higher than cisgender survivors. Additionally, threats and intimidation were reported at rates 1.5 times higher for transwomen than for cisgender survivors, while transwomen were victims of sexual-violence hate crimes 1.8 times more than cisgender people. Further, transwomen were four times more likely than cisgender survivors to report hate violence from police officers, while transgender women were six times more likely than cisgender survivors to experience hate crimes in the form of physical violence from police officers. In light of this police misconduct, it is not surprising that many of the transwomen surveyed were not likely to seek police assistance with hate violence.
Transwomen’s Encounters with Police Officers
A growing body of quantitative and qualitative data suggests that police abuse, harassment, and mistreatment of transwomen occur under other circumstances and with high frequency. Many transwomen’s interactions with the police are preceded by circumstances in which the transgender woman has not committed a crime. Police harassment includes profiling transgender women as sex workers, detaining transwomen who do not have matching identity documents, or stopping transwomen just because of their GNC appearance. These incidents of harassment, false arrests, and unwarranted detainment of law-abiding transwomen is detrimental to the women and is arguably a waste of law enforcement’s time. It fosters transwomen’s fear and distrust of the law officers in their community, putting them at risk for further victimization. Moreover, even when transgender people are victims, police officers mistreat them in biased and hurtful ways. One transgender woman described how detectives treated her when she was trying to report a crime: “The detectives were passing by and they said . . . [singing] ’Transformers . . . men up in disguise’” (Nadal, Skolnik, and Wong 2012, 73).
Walking while Trans
The pattern of police harassment of transwomen, and especially transwomen of color, is sometimes known as “walking while trans.” Advocates and agencies that support transwomen have noted high rates of police profiling and improper detainment of transgender women under the discriminatory policy called “stop-and-frisk,” which disproportionately criminalizes racial, ethnic, and gender-identity minorities through police profiling and detainment. Police frequently stop, search, and arrest transwomen for seemingly no reason but later attribute the stop to the transwoman’s appearance of loitering or to the suspicion of prostitution. Other than being unlawfully stopped, transwomen have reported that the stops entail verbal harassment, humiliation, inappropriate touching of their genitals, and arrests for prostitution. A 2012 report from Make the Road New York (MRNY) surveyed 305 residents of Jackson Heights, NY, to investigate the pattern of stopping and frisking people of color. Of the residents who had reported being stopped by the police, transgender residents reported the highest rates of verbal (51 percent) and physical (46 percent) harassment from law enforcement officers. In contrast, approximately one-third of nontransgender LGBQ and approximately one-quarter of cisgender heterosexuals report those same types of verbal and physical police harassment. The MRNY report provides dozens of testimonials from transgender Latina women who had been harassed by police, profiled as sex workers, and arrested under the suspicion of manifesting prostitution.
While being arrested is a generally unpleasant experience for anyone, the process of arrest and detainment for transwomen is especially traumatic. Many of the women arrested under the suspicion of sex work report being humiliated by police officers who demand that they empty their purses, remove prosthetic breasts, and take off their wigs. In the process of the transwoman complying with these demands, police often damage their property and make antitransgender comments. The police snatched their wigs off, threw the wigs to the ground, and stomped on them. Aside from being humiliating, these encounters are abusive and contribute to transwomen’s distrust of law enforcement. For example, one transgender woman describes an experience she had when she was arrested:
I remember the first comment: “Oh, look at this one! This is a gorgeous one. We haven’t had one like you in a long time,” starting with the commanding officers. Then the [inmates start] yelling, “Put it in our cell. C’mon, we’ll have some fun tearing up that asshole.” You all get into a line and you’re going to get strip searched. . . . They have like five guys go into this room and strip in front of them and then put their clothes into a bin through a metal detector and to shower. I started stripping right in front of all the guys. I mean. . . . It put me. . . . I felt very uncomfortable. (Nadal, Skolnik, and Wong 2012, 73)
Transwomen in Detention Facilities
From the moment when they are arrested until the time when they are released from custody, transwomen are subject to discrimination regarding their gender identity. In detention facilities, like jails and prisons, transwomen are subject to violent physical and sexual assaults from inmates and facility staff, and are denied medical care and supplies to support their gender affirmation. Previous legal cases have helped to require protections for transwomen in detention facilities (see Farmer v. Brennan, 511 U.S. 825 ); however, there remain three major detention issues that are unique to transwomen. First, transwomen often have problems with methods of sex classification in prison, which informs administrative decisions about facility placement and administrative or protective segregation. Second, transwomen are victimized at rates that are up to thirteen times higher than male-identified inmates in the same detention facilities (Emmer, Lowe, and Marshall 2011; Grant et al. 2011; Jenness et al. 2007). Finally, the healthcare needs of transwomen, including gender-affirming hormones, are often delayed, diminished, or altogether denied. In a study on transgender sex workers, one former transgender inmate describes her experiences behind bars:
I mean it was hard for me being there because I was transgender. . . . It’s worse because they look at you not only because of what you’re doing—they judge you for that—but they also judge you for who you are. . . . I don’t know how to explain it but it was something that like—there was a lot of abuse involved. You know, I was abused—verbally abused, physically abused and even sexually abused. (Nadal et al. 2012, 131)
Sex-segregated prisons are inherently incompatible with transgender identity (for a review see Sumner and Jenness 2014). As of 2014, jails and prisons in many jurisdictions classify prisoners as male or female according to the sex that they were assigned at birth (Sumner and Jenness 2014). More often than not, law enforcement staff place transwomen with cisgender men. In a landmark case involving placement of a transwoman in a cisgender male prison, Farmer v. Brennan (511 U.S. 825 ), the court ruled that prison staff had violated a transwoman’s Eighth Amendment right (freedom from cruel and unusual punishment) by having “deliberate indifference” to her safety in an all-male prison. Dee Farmer, a transwoman, was beaten and sexually assaulted in her cell by another inmate. The court ruled that Dee’s transgender identity should have signaled that she was a vulnerable prisoner, and the prison should have taken steps to prevent violence against her.
Within the male detention facilities, staff place transwomen in administrative segregation to protect them from victimization. Administrative segregation can mean that the transwoman is placed in a “vulnerable male” unit or solitary confinement. Administrative segregation reduces the risk that other inmates will victimize a transwoman, but it also increases the risk that she will suffer from mistreatment and abuse from the detention and correctional officers. Additionally, administrative segregation prevents transwomen from interacting with other inmates and from participating in and benefiting from prison programs and activities that have been shown to improve inmates’ mental health. In a victory for transwomen, Tates v. Blanas (U.S. Dist. LEXIS 26029 [E.D. Cal. Mar. 6, 2003]) ruled that a prison policy of placing all transgender inmates in total separation from other inmates is an Eighth Amendment violation.
A new case has initiated the conversation about the classification and placement of transgirls in detention facilities. Jane Doe v. Connecticut Department of Correction (Case No. 3:14CV469 [RNC] filed October 20, 2014) is a civil rights case of a sixteen-year-old transgender Latina girl who, after being removed from a group home, was placed in three different types of detention facilities: one for girls, one for boys, and another for women. Jane’s time in each of these facilities has involved her being put in solitary confinement, being denied access to her wigs and makeup, or being called by her birth-assigned male name and male pronouns. Jane’s case is unique and complex because it involves issues related to her minor age, her being a ward of the state, and the fact that she is being detained in these facilities without being charged with a crime. It will be interesting to study the outcomes for Jane and to follow the legal arguments raised by her situation. A legal precedent that supports Jane’s case is R.G. v. Koller (415 F. Supp. 2d 1129, 1154 [D. Haw. 2006]), wherein the court ruled that isolating juvenile offenders who identify as LGBT is a violation of their due process rights, even if that isolation is for their own protection from other inmates.
Violence and Victimization in Jails and Prisons
Greene v. Bowles (361 F.3d 290 [6th Circuit 2004]) found that placing a transwoman inmate in a protective-custody unit alongside a “predatory inmate” was an instance of deliberate indifference to the transwoman’s safety and therefore a possible violation of her Eighth Amendment right. Much of the research on the abuse and violence that transwomen endure indicates that they are more likely to be sexually and physically victimized in jails and prisons than other gender identities. MTF report a higher incidence of sexual assault (20 percent) than FTM (6 percent) and GNC (8 percent) (Grant et al. 2011). Black MTF have higher rates of sexual assault (38 percent) than MTF overall (20 percent). One report from Jenness and colleagues (2007) detailed sex-assault statistics for California prisoners. Fifty-nine percent of transgender inmates reported that they had been sexually assaulted, while the rate of sexual assault reported by other inmates was 4.4 percent.
Victimization in correctional facilities is multifaceted. Murray v. U.S. Bureau of Prisons (106 F.3d 401, 1997 WL 34677 [6th Cir. 1997]) stated that the prison staff’s verbal abuse and harassment of an MTF inmate based on her gender identity is not an Eighth Amendment violation; while inappropriate, it did not amount to cruel and unusual punishment under the law. In addition to the physical and emotional pain from assault and discrimination, transwomen are reluctant to report victimization because they will lose access to activities and programs, as they will probably be placed in administrative segregation for their own protection. Many times, these “ad-seg” conditions are identical or akin to solitary confinement. The emotional stress associated with solitary confinement can exacerbate mental and physical illnesses. Another side effect of solitary confinement is that it places transgender inmates at an increased risk for sexual assault and misconduct perpetrated by male corrections officers (American Civil Liberties Union 2014).
The Prison Rape Elimination Act (PREA) (U.S. Department of Justice 2012) is a set of federal guidelines for the prevention of inmate sexual assault. In addition to preventing sexual assault, PREA aims to improve detention facilities’ methods of responding to incidents of inmate rape (National PREA Resource Center 2014). The behaviors required or prohibited by this act have specific relevance to transgender prisoners. First, PREA forbids cross-gender searches. This includes prohibiting the search of transwomen inmates by male guards. Additionally, the act states that guards must be trained on how to conduct respectful searches of transgender inmates, preventing physical searches aimed at determining the inmate’s genitalia. The act allows transwomen to shower separately from the other inmates to prevent disclosure of the inmate’s genitalia and transgender identity to other inmates. PREA allows inmates to request protective custody if they are concerned about their safety. PREA also states that inmates should have access to ways of reporting sexual assault to internal facility sources as well as external sources without fear of retaliation by other inmates or staff. These standards apply to all of the prisons, jails, juvenile detention centers, halfway houses, and short-term confinement facilities like police stations.
Gender-Affirming Care in Detention Facilities
The goal of gaining access to gender-affirming care has been met with mixed success across the country. Barriers to treatment include limited or no access to the following resources: counseling, physicians who are competent to handle the medical needs of transgender women, supplies for grooming, female undergarments, and cosmetics to maintain their gender-affirming appearance. In most facilities, transwomen must have a medical diagnosis of gender dysphoria (previously referred to as “gender identity disorder”) in order to initiate hormone therapy or any other type of gender-affirming therapy in prison. Gender dysphoria (GD) refers to the depression, anxiety, and stress associated with being in the body of the wrong sex.
For transgender women who seek to begin or continue their transition while in prison, hormone therapy is a popularly recognized medical treatment. In Fields v. Smith (653 F. 3f 550 [7th Circuit 2011]), the court overturned Wisconsin’s Inmate Sex Change Prevention Act and allowed prisoners to get transition-related treatment and care. The Fields ruling allows doctors to prescribe hormones and gender-reassignment surgery to Wisconsin inmates. Despite landmark legal decisions ordering some prisons to provide hormone therapy to its transgender prisoners, some facilities continue to stall or outright deny treatment to transwomen in their custody. Transwomen who received hormone therapy in prison complained that they received reduced dosages or that their treatment did not allow them to increase or decrease dosages as prescribed by their own medical provider. Not all transgender women pursue all of the available treatments. For instance, many choose not to have genital reconstruction as part of their gender affirmation and sex reassignment. Their capacity to choose is acknowledged in Kosilek v. Maloney (221 F. Supp. 2d 156 ), which states that prisons must use “individualized medical evaluation” to determine the treatment of a prisoner’s gender dysphoria as opposed to a single, “freeze-frame” rule about continuing hormone therapy. The Kosilek decision, as well as the other cases involving transwomen in prisons, only provides resolutions for the inmate or the facility identified in the case. Transwomen in other facilities still have to litigate to gain the medical evaluation and treatment that they need.
Other Mental Health Experiences of Transwomen in Detention Facilities
Mental health professionals have acknowledged the need for specialized treatments aimed at treating co-occurring mental and physical health conditions such as depression and HIV in transgender women. In their Personalized Cognitive Counseling (PCC) model, the University of California—San Francisco Center for Excellence for Trans Health and Center for AIDS Prevention Studies (2013) recommends that providers abandon judgmental attitudes about high-risk sexual behaviors of their MTF clients. Instead, the PCC calls for high levels of competency as it relates to mental health issues specific to transwomen living with HIV. The “T-SISTA” protocol (Gutierrez-Mock et al. 2009) provides mental health recommendations for transwomen of color. The “T-SISTA” program teaches transwomen of color to rely on other transwomen of color and other healthy sources of social support to recognize and reduce internalized transphobia while also curbing the behaviors that put transwomen at risk for contracting HIV.
The World Professional Association for Transgender Health (WPATH) (2012) Standards of Care offer guidelines for diagnosing and treating GD. They recommend that providers try to eliminate their clients’ GD mental health symptoms by affirming the client’s gender identity through psychosocial and medical treatments. Despite the mental health diagnosis of GD, WPATH recommends that providers refrain from pathologizing transwomen’s gender identity and instead focus on resolving the symptoms that are associated with transgender identity. The WPATH Standards of Care emphasize the importance of a network of culturally competent providers who can assist the transgender woman in different aspects of her gender affirmation. These providers may offer counseling, medical care, funding, and logistical support for the transwoman’s access to care. WPATH recognizes that providing care for transwomen often includes treating other coexisting medical (i.e., HIV) or mental health (i.e., depression) conditions. In the Standards of Care, WPATH also offers detailed information about the protocols associated with hormone therapy and surgery. In keeping with the Standards of Care, Kosilek v. Spencer (No. 12—2194 [1st Cir. Jan. 17, 2014]) ruled that transgender inmate Michelle Kosilek must be given gender-reassignment surgery in order to treat her severe GD. After reviewing testimony from a variety of medical experts, the court agreed that the only acceptable and effective treatment for Kosilek was gender-reassignment surgery. This is the first case where a department of corrections has been ordered to provide surgical gender-affirmation treatment to an inmate.
Lessons Learned from Denise’s Story
In order to understand all of these aforementioned issues affecting transwomen and the criminal justice system, let us revisit Denise’s story. Because Denise wanted to live truthfully in the gender that she identified with, she decided to tell her parents. Her parents’ reactions were similar to what many transgender people, particularly transgender youth, experience. When many transgender youth are not supported by their parents, they often find themselves getting kicked out of their homes by their parents or running away from home as a result of an abusive or hostile environment (Nadal 2013). In general, transgender people tend be disproportionately homeless compared to the general population. This is often correlated with other difficulties like poverty, unemployment, educational disparities, and health problems (National Center for Transgender Equality and the National Gay and Lesbian Task Force 2009).
After getting kicked out of her home, Denise was able to a find a mentor in another transgender woman named Lorial. Having someone to relate to was very validating for Denise, who appeared to have not met anyone else who identified as transgender. Lorial provided advice on transitioning (e.g., gender-affirming surgeries) as well as practical support (e.g., allowing Denise to stay at her home). While the relationship was positive in many ways, it also represented a risk when Lorial offered to share her hormones with Denise. Because Denise was a minor and legally could not obtain any hormones on her own, she viewed sharing hormones as a viable option. If there had been systemic or institutional assistance that Denise could turn to, she might have been able to access necessary hormonal treatments in a healthy (and legal) way. For instance, there are youth programs in various urban areas that assist transgender youth with hormonal treatments. If Denise had been aware of these programs, she would have met a physician who could monitor her treatment; she would have been prescribed the appropriate amount of hormones, and she would have avoided sharing needles with Lorial (or anyone else who offers to share their hormones with her).
Denise’s struggles in finding a job were due to multiple factors: her young age, her lack of experience or skills, and her transgender identity. When she was unable to find a job, she decided to “walk the stroll,” which was a code for sex work. Many studies have revealed that due to the rampant discrimination transgender people experience from both employers and prospective employers, many transwomen turn to sex work as their only perceived feasible option (Nadal et al. 2012; Sausa, Keatley, and Operario 2007). When they become sex workers, they also put themselves at risk for other dangers, including violence, poor sexual health, drug use, and incarceration (Rekart 2005). Even if Denise had secured traditional employment, she might have been susceptible to micro-aggressions and other forms of interpersonal discrimination, ranging from transphobic language to overt harassment (Nadal, Davidoff, and Fuji-Doe 2014).
When Denise was arrested, she experienced several forms of blatant discrimination from the police officers. As noted earlier, transwomen who are sex workers, as well as those who are not sex workers, often experience harassment and other forms of discrimination from police officers and other members of the criminal justice system. Because transgender women are often stereotyped as sex workers, there have been many reports of transwomen who are profiled by police officers, leading to false arrests and detainment (Nadal 2013). Sometimes this mistreatment may appear to be harmless or minimal in nature; however, many transgender people have reported that they have been abused and assaulted by police officers and by other inmates who were not punished for their actions (Nadal et al. 2012).
Finally, Denise’s story tells us that individuals’ decisions to participate in criminal activities (e.g., sex work) may not be the result of malicious intent or immoral character. Denise entered the world of sex work for multiple reasons. First, she was kicked out of her home by her parents, which eventually led to Denise becoming homeless. Living on her own at sixteen, she was forced to drop out of school in order to pay for her basic needs. She could not find a traditional job and had to turn to sex work as a last resort. While sex work in itself should not be viewed as a deviant act, the fact that she was a young person who was being paid for sex is potentially troubling. Not only did she put herself at risk for sexual health problems and violence, but also it is very likely that she was not mature enough to make decisions about her own sexuality and best interests.
Recommendations and Conclusion
Throughout the chapter, we described the various obstacles that transgender women and transgender girls may experience in the criminal justice system as a result of their gender identities. This last section will focus on potential recommendations for systemic, institutional, and interpersonal change.
Recommendation #1: Increase awareness of transgender issues through education of the public, school personnel, and justice officials.
Systemically, there are many obstacles that transgender people experience, including disparities in unemployment, educational attainment, health, and homelessness. Such disparities may be the result of stigma and lack of advocacy for transgender people. Both educational programming and increased positive visibility of transgender issues in government, media, and education could help to minimize this stigma. Institutionally, it would be important for employers and schools to promote inclusivity and cultural competence for transgender people in their mission and everyday practices. For instance, if employers were more open to hiring transgender employees (or at least had antidiscrimination policies in place that protect transgender people), perhaps there would be more career opportunities for transgender people. If school systems promote transgender inclusion, this may bolster teachers’ efforts to support transgender students and result in less bullying or lower dropout rates for transgender high school students.
Recommendation #2: Promote inclusivity and cultural competence in the criminal justice system.
The criminal justice system needs to make several changes in order to support and advocate for transgender people, particularly transgender women and girls. First, transgender inclusivity and cultural competence need to be promoted and practiced at all levels, from police officers to correctional officers to public attorneys and judges. Individuals who work with transgender people need to be aware of micro-aggressive language and behaviors that promote an unsafe and hostile environment for transgender people. Federal, state, and local laws must change in order to better protect the rights of transgender people. For instance, prison facilities and police stations need to have more options for transgender inmates and detainees. Transgender people should be housed in facilities based on the gender they identify with, and their safety should be guaranteed not only with other inmates but also with correctional officers.
Recommendation #3: Assist families in creating transgender-affirming environments.
Finally, interpersonally, there are many things that individuals can do in their families and communities to ensure that transgender people receive the support they need. First, because families are where children first acquire knowledge about values and where they initially start to develop their personality, parents may promote the importance of being accepting and open-minded towards those different from them. Parents and other family members may also consider being mindful about gender-role norms and how these may affect children’s mental health. For instance, when a young boy is told, “Dresses are only for girls!” or “Be a man!” the child learns explicitly that there is a rigid way for boys (or men) to be. If the child is transgender, messages like these can take a negative toll on the child’s mental health and self-esteem, perhaps even impacting the child’s development as an adult. For cisgender children, statements like these reinforce the stereotypes of what boys are “supposed to be” and give permission to discriminate against transgender people.
The recommendations made in this chapter are congruent with the APA’s Guidelines for Psychological Practice with Transgender and Gender Nonconforming People (American Psychological Association 2015). These guidelines describe the level of competence psychologists should attain in order to work with transgender and gender-nonconforming clients, and offer incremental yet comprehensive changes in providers’ understanding of transgender issues, from the fluidity and dynamic nature of gender identity to the importance of individualized directives that address the needs of transgender youth. By adopting policies and procedures that agree with these APA guidelines, police, judges, social workers, and other administrators of justice can make a difference in the lives of transwomen and in transwomen’s confidence in the justice system throughout their life cycle.
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