In recent years, transgender persons and the problems confronting them have made headlines.
By C J Oakes, May 22, 2017
From Bruce Jenner coming out to President Obama addressing the issue to news reports of higher rates of violence against transgender people to prisons grappling with PREA, the headlines have shown that America and much of the world is having a difficult time understanding how to best handle this issue.
Transgender People and the Criminal Justice System
Regardless of how one views the transgender issue, it is not one which is going to go away. Currently, in the United States, there are about 1.4 million persons who identify as transgender (Chappell, 2016). However, as noted by the New York Times (Miller, 2016), determining an accurate figure is nearly impossible because although discrimination is illegal, it continues to be practiced in subtle ways even by government agencies.
For instance, surveys which ask for gender identity only ask for “male” or “female.” This makes the task of estimating gender dysphoria nearly impossible; though a transgender person is likely to either leave the question blank or check both boxes, so researchers can make educated guesses, but that is all they are, guesses.
Thus, when a transgender person enters the criminal justice system, they are likely to face the same issue. Police will generally assign gender based on genitals; prison officials are likely to incarcerate transgender people the same way. This can cause serious problems.
For starters, violence against transgender persons is more likely than against any other segment of the population. So, placing a transgender person into the general population among the most violent persons in society is insane at best. So, transgender persons who are incarcerated are often subjected to long terms in solitary confinement (NCTE, 2017).
In addition, PREA requirements are proving difficult for prisons nationwide as regards gender issues. For instance, PREA requires that when a prisoner is stripped and searched, the action must be performed by a member of the same sex. But if a person with male genitals identifies as female, is a search by a male guard a violation of their rights under PREA? Also, what of persons who are Intersex? How could they be searched? Would the prison have to have on staff an Intersex guard?
Let PREA provide the answer…
“(e) The facility shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident’s genital status. If the resident’s genital status is unknown, it may be determined during conversations with the resident, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
“(f) The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex residents, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.”
Thus, PREA is prepared, but sadly, few prison systems in America are implementing these recommendations nor are all required to do so. Acceptance of PREA is voluntary for states; the only penalty being the loss of Federal dollars to their prison system. In addition, PREA ONLY applies to Corrections, not police departments.
What About Intersex Issues and the Criminal Justice System?
In speaking with a very conservative voter recently, the author of this article raised the issue of Intersex children. This person had no clue about this. Even after using the older, no longer used term hermaphrodite, the man was completely ignorant of the issue, even claiming it was not possible for a child to be born with both genitals. Although anecdotal, this example shows one of the biggest hurdles in the Transgender/Interset issue: Ignorance.
Well-known is the connection between ignorance and prejudice. Because so many people in America and parts of the world shun science and resulting understanding of medical facts such as a fairly high rate of Intersex births, continued ignorance breeds continued and growing bigotry. Incidentally, this is a higher rate than births of redheads…which is 0.5%(Lallanilla, 2013).
The key difference is that we can see a person with red hair, but when someone has both genitalia, we don’t know it. We interact every day with people who have been born Intersex and we never know. They are our neighbors and trusted co-workers. Yet, some in society would have them shunned or worse. Many who would do so carry badges and pepper spray.
Transgender & Intersex Issues and Criminal Justice Law
Because this is such a serious issue and because there is so much ignorance associated with it, we have decided we should add an entire section to this website to deal with it. We believe that the Criminal Justice and Legal Systems still have a way to go in properly handling these issues and we want to help.
If you or anyone you know is Transgender or Intersex and you want to add to this section, complete the form at the bottom of this page. We will add articles, statistics, and research as much as possible, but because of how fast we are growing, doing so may be difficult. So, we welcome any help you can offer. Thank you.
- Chappell, B. (30 June 2016). 1.4 Million Adults Identify as Transgender in America, Study Says. NPR. Retrieved May 22, 2017, from http://www.npr.org/sections/thetwo-way/2016/06/30/484253324/1-4-million-adults-identify-as-transgender-in-america-study-says
- Kritz, B. (2014). The Global Transgender Population and the ICC. Yale Human Rights & Development L.J.. Vol XVII. Pp. 1-38 Retrieved May 22, 2017, from http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1120&context=yhrdlj
- Lallanilla, M. (28 Jan 2013). Are You Carrying the Redhead Gene?. Livescience. Retrieved May 22, 2017 from http://www.livescience.com/26633-redhead-dna-gene.html
- Miller, C. C. (8 June 2015). The Search for the Best Estimate of the Transgender Population. The Upshot. New York Times. Retrieved May 22, 2017, from https://www.nytimes.com/2015/06/09/upshot/the-search-for-the-best-estimate-of-the-transgender-population.html?mcubz=2
- NCTE. (2017). Issues. Police, Jails, & Prisons. National Center for Transgender Identity. Retrieved May 22, 2017, from http://www.transequality.org/issues/police-jails-prisons
- NCTE. (2016). National Transgender Discrimination Survey. National Center for Transgender Identity. Retrieved pdf May 22, 2017, from http://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf
- PREA. (2017). § 115.315 Limits to cross-gender viewing and searches. National PREA Resource Center. Retrieved May 22, 2017 from https://www.prearesourcecenter.org/ec-item/1307/115315-limits-to-cross-gender-viewing-and-searches