Transgender in the Justice System

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

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.

How Many Transgender People Are there Worldwide?

“…While detailed estimates of the size of the European transgender community are also in short supply, some anecdotal information is available. For example, in the 2012 European Union Lesbian, Gay, Bisexual and Transgender Survey conducted by the European Union Agency for Fundamental Rights, over 93,000 self-identified LGBT persons participated in an online survey. Of the 93,079 respondents, 6,771 identified as transgender. The challenge of demographics is compounded in countries where the safety and security of the transgender community is compromised by higher levels of transphobia, which can force the transgender community underground. According to Jack Harrison-Quintana, Policy Institute Manager at the National Gay and Lesbian Task Force, there is a considerable lack of global data on transgender demographics, and the culturally specific articulations of transgender identity vary too much for it to be appropriate to apply United States or European population estimates to other countries. With these cautions in mind, this article will not attempt to capture the size of the transgender community in other countries.”

From Kritz, 2014

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).

Violence and Transgender People

“The March 2013 update of the Trans Murder Monitoring Project finds 1,123 reported killings of trans people in fifty-seven countries worldwide from January 1, 2008 to December 31, 2012. The update also shows a significant rise in reported killings of trans people over the last five years. “In 2008, 148 cases were reported, in 2009, 217 cases, in 2010, 229 cases, in 2011, 262 cases, and in 2012, 267 cases.”…

From Kritz, 2014

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.

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    How Extensive is Discrimination Against Transgender Persons?
    • “One-fifth (22%) of respondents who have interacted with police reported harassment by police due to bias, with substantially higher rates (29-38%) reported by respondents of color.
    • “Six percent (6%) reported physical assault and 2% reported sexual assault by police officers because they were transgender or gender non-conforming.
    • “Twenty percent (20%) reported denial of equal service by police. More information about denial of equal service can be found in the Public Accommodation chapter.
    • “Almost half of the respondents (46%) reported being uncomfortable seeking police assistance.
    • “While 7% of the sample reported being held in a cell due to their gender identity/expression alone, these rates skyrocketed for Black (41%) and Latino/a (21%) respondents.
    • “Respondents who served time in jail reported harassment by correctional officers (37%) more often than harassment by peers (35%).
    • “Physical and sexual assault in jail/prison is a real problem: 16% of respondents who had been to jail or prison reported being physically assaulted and 15% reported being sexually assaulted.
    • “African-American respondents reported much higher rates of physical and sexual assault in prison, by other inmates and corrections officers, than their counterparts.
    • “Health care denial was another form of abuse in prison, with 12% of people who had been in jails or prisons reporting denial of routine health care and 17% reporting denial of hormones.”
    • From 2016 NCTE Survey

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.

How Common Are Intersex Births?

In Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, Taylor Flynn estimated that one in every 2,000 children are born intersex. Gender Spectrum, a United States based education, training and support organization for trans- gender issues, uses a more expansive definition of intersex that encompasses a wider range of conditions and asserts a significantly higher incidence. The organization maintains that approximately 1% of children are born with chromosomes, hormones, genitalia and/or other sex characteristics that are not exclusively male or female as defined by the medical establishment. In How Sexually Dimorphic Are We? Review and Synthesis, the authors concluded that the frequency of intersexuality “might be as high as 2% of all live births” while the percentage of persons receiving “corrective genital surgery” probably “runs between 1 and 2 per 1000 (0.1 to 0.2%).

From Kritz, 2014

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.

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