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Going Against the Binary: Gender Non-Conforming Individuals and their experience with Incarceration

For those of us who identify within the gender binary, everyday society accommodates us. There are clothing lines, athletic teams, movie genres, and even something as minute as a color can be attributed to either girls or boys. However, almost 1% of the United States' population identifies as transgender, or about 3.3 million people. Yet, society has been slow to accommodate those who do not cleanly fit into the ascribed gender binary. An aspect of American society that lags further than the rest is the correctional system. This becomes an even more harrowing fact when one considers that 1 in 6 transgender Americans have been to prison. Despite constituting less than 1% of the population, almost 16% of transgender individuals find themselves behind bars throughout their lifetimes; the disproportionality of these statistics characterize the discriminatory practices imposed on transgender individuals by the criminal legal system (CLS). It is also important to recognize the intersectionality of this issue, as the rates become even more disproportionate when accounting for race as a factor, with 1 in 2 Black transgender Americans having been to prison.

Source: B Hayward

Disproportionate rates of incarceration are only the tip of the iceberg when it comes to the gross injustices transgender people experience when interacting with the CLS. Once inside, the violence against transgender inmates is exemplified due to the gendered nature of these facilities. Compared to cis-gendered inmates, transgender inmates were 13x more likely to experience sexual assaults. This rate is similar for instances of sexual harassment and physical abuse. Unfortunately, in a failed attempt to mitigate the harassment and abuses, staff often use solitary confinement as a misguided protective measure against the transgender inmate which increase the risks of psychological harm. Additionally, access to healthcare that is routine or medically prescribed by a doctor, such as hormone therapy or sex reassignment surgeries (SRS), are denied. Denying access to medical care is an egregious violation of one's rights as well as a blatant violation for the safety of that individual. Without SRS, transgender women are forced to reside in male facilities, where instances of abuse run rampant. The abuse not only comes from correctional staff, but from the other inmates as well, subjecting individuals to perpetration with no recourse. This data also only comes from what is reported, suggesting that actual rates/instances of abuse are higher, especially when accounting for verbal/emotional abuses.

Despite policy strides like PREA, which allocates housing on a case-by-case basis and not according to genitals, and Farmer v. Brennan, which ruled that failing to protect trans people in custody was in violation of the 8th Amendment's prohibition on cruel and unusual punishment, transgender people still face disparate impacts from the CLS. Without clear federal guidelines, the states are left to decide matters individually, resulting in uneven implications across the nation. To help combat this injustice, we can enact more policies at the federal level that mandate gender affirmation within the correctional system and gather more medical evidence attesting to the necessity of not just transition-related care but also an environment that accommodates gender nonconforming people. More widely, creating a society that is more accepting of individual differences and less punitive of those who do not conform to the gender binary.

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