The criminal legal system is made up of three main components: law enforcement, the court system, and corrections. Each of these areas of the system play a critical role in the process of identifying, rehabilitating, or reconciling crimes and those that commit them. However, no part of this system is without some fault in perpetuating the continued unfairness, inequality, and sometimes blatant inhumanity that occurs within this system. The area of focus in discussing issues of gender non-conforming individuals in the system is the component of corrections.
The corrections component of the criminal legal system involves the prison and jail systems most notably. In this, individuals who are incarcerated are at the mercy of a system that often fails to provide for those behind its walls. For gender non-conforming individuals, this is no different.
Currently there are a reported two million Americans who self-identify as transgender or gender nonconforming based on a recent study by the UCLA School of Law. This is then comparable to the fact that one in six transgender individuals have been incarcerated at some point in their lives according to the National Library of Medicine. The experiences of these individuals upon being incarcerated are often negative, far more so than the experiences of their gender conforming counterparts. Stories of gender nonconforming individuals being found dead in their cells or facing constant violence and threats from their fellow inmates continue to circulate despite attempts to 'correct' this system of corrections. One of the most difficult and controversial issues when discussing nonconforming individuals and corrections, is how to properly place them in a system that is inherently binary.
Prior to recent changes in policy, it was customary to place individuals in correctional facilities based solely on their external genitalia. This caused significant issues for gender nonconforming individuals as it would often set them up for potentially dangerous situations. New policies such as the Prison Rape Elimination Act (PREA) have served to alleviate some of the potential damage that may be cause by misplacing an individual. PREA, specifically eliminates placing individuals only on external genitalia and rather extends a case-by-case analysis to be made by correctional agencies. While this is a step in the right direction, there are still clear issues with placements that occur. In California, CDCR data revealed that of the 1,503 incarcerated individuals who identify as gender nonconforming, 311 petitioned to be replaced, with some of these requests being denied for ‘unspecified reasons’. Inherent discrepancies are present in the system when placing, or re-placing, individuals, and many have looked to invoke the rights of the Eighth Amendment, protection against cruel and unusual punishment, as justification for reforming current policy and common misplacement of gender nonconforming individuals.
Given these issues, it is clear that much progress must be made to protect against misplacement, honor requests to be replaced, and uphold the values of the correctional system to rehabilitate and preserve its individuals. Some states, such as the state of New Jersey, are leading the charge with policy implementation that bases placement on the gender identity of the individual rather than biological sex. The precedent set by New Jersey and a handful of other states show that it is possible to make the adequate adjustments necessary to provide for, and protect individuals in the gender nonconforming community within the corrections system.