Are LGBT Inmates Safe In Federal Prisons?

The most common answer to this unwarranted question is no. LGBT inmates are more likely than non-LGBT inmates to face assault or abuse while in prison.

The LGBT community comprises people of diverse gender identities and sexual orientations. This includes gay men, lesbians, bisexuals, transgender persons. The task of defining the number of members in this community has been difficult because there are so many different figures out there about who makes up the LGBT population.

In the United States, the number of LGBT inmates has been growing rapidly. This means that they are at a high risk for sexual assault and violence in comparison to heterosexual prisoners. Additionally, many prisons have inadequate policies in place related to this issue.

The statistics on assaults against them is difficult because it may not be reported or documented properly. This is due to fear of retaliation by prison staff and other inmates who might see someone coming forward as being gay or transgender as weak.

Prison Rape Elimination Act

The Prison Rape Elimination Act (PREA) was created in 2003 to end sexual abuse in prisons. It applies to all confinement facilities, both public and private. The act defines three categories of people who are at risk for prison rape.

LGBT inmates fall into the third category because they’re not heterosexuals by definition and often suffer unique abuses that other inmates do not experience.

In light of this, PREA requires federally funded institutions to take specific steps to protect LGBT prisoners from abuse. These include:

Screening new arrivals for their risk level.
Designating staff specifically responsible for handling issues related to LGBT inmates.
Providing education on identifying and preventing sexual abuse against LGBT people to all members.
Having a grievance process that specifically addresses LGBT issues.

Unfortunately, a 2012 report by the Government Accountability Office found that many agencies were not in compliance with PREA, particularly when it came to protecting transgender inmates. This is due to the fact that many prison officials do not understand what it means to be transgender and how to identify them properly.

Constitutional Protections

The Constitution of the United States protects all citizens from cruel and unusual punishment. This protection applies to LGBT inmates under the protection of the 14th Amendment.

This Amendment discourages any state from making or enforcing any law capable of abridging the privileges or immunities of US citizens. It also discourages against denial of constitutional rights against anyone in the US.

In other words, state and federal prisons cannot treat LGBT inmates in a way that is crueler than how they would treat non-LGBT inmates. This treatment includes denying them necessary medical care or housing them in an area where they are more likely to be assaulted.

In addition, the Eighth Amendment also outlaws cruel and unusual punishment. Cruel and unusual punishment, according to various court rulings, may include:

Subjection to assault or excessive force.
Being put in unhealthy or too restricted surroundings.
Denial of medical attention in many instances.

Additional Laws to Protect LGBTQ Inmates

There are a number of additional statutes that potentially offer rights for LGBTQ inmates. For instance, several federal disability statutes may protect transgender persons in certain circumstances. Such statutes include Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

These laws prohibit different organizations from discriminating against disabled persons, including prisons. The discrimination includes denying qualified people with disabilities access to various rights. They also prohibit prisons from failing to provide reasonable accommodations.

There have been several court rulings indicating that gender dysphoria qualifies as a statutory disability. As a result, lawyers are becoming highly reliant on these rulings. They do so to challenge practices such as:

Housing transgender inmates in segregation based on their sexual orientation.
Denial of access to medical care for gender dysphoria.
Denying transgender inmates appropriate clothing materials and items.

Certain parts of the prison and jail operations are governed by other federal civil rights legislation. For instance, Title IX of the Education Amendments of 1972 outlaws sex discrimination in federally financed educational institutions. Such institutions include many prisons, jails, and juvenile detention facilities.

Title IX may also safeguard inmates who are subject to anti-LGBTQ harassment or violence while enrolled in such educational programs.

Primary Concerns for LGBTQ Prisoners

Violent Acts from Staff and Other Prisoners

LGBTQ prisoners are subject to appalling rates of sexual abuse and other forms of violence by prison staff and other inmates. Federal data indicates that the rate of sexual assault among these individuals is three times higher for non-heterosexual prisoners.

Additionally, sexual assault is highly prevalent among transgender women incarcerated in male correctional facilities. A statewide study in California indicates that the automatic placement of transgender women alongside males resulted in a 13 times likelihood for their sexual abuse than other inmates in the same institutions.

The Federal Bureau of Prisons has adopted PREA standards that attempt to avoid instances where LGBT members are housed with abusive inmates. They do so by requiring all federal agencies to consider how each inmate identifies. This happens when designating facilities or making transfers between institutions. Such reviews include matching housing based on the individual’s own self perception instead of physical characteristics alone.

This policy also requires staff to undergo training to better handle issues relating to LGBT inmates.

Inmate Housing Needs

Many prisons hold LGBTQ prisoners in deplorable conditions. These conditions endanger their safety and well-being. Such housings include lengthy solitary imprisonment or assignment to facilities that fail to correspond to their gender identity for transgender prisoners.

LGBT Placement into Protective Custody/Solitary Confinement

It’s normal for prison authorities to respond to LGBTQ inmates’ vulnerability by placing them in solitary “protective custody.” This penalizes them regardless of the fact that they are a possible victim of violence.

Experts, such as the United Nations Special Rapporteur on Torture, indicate that lengthy solitary confinements amount to torture. This is due to their harsh and traumatizing nature. Segregation or protective custody involves confining the inmates to a tiny cell with little or no human contact. These sections may go to the extremes of keeping inmates in segregation for 22–24 hours a day.

The trauma associated with these treatments may result in long-term psychological impairment. They can be particularly harmful to juveniles and individuals with preexisting mental health issues or cognitive or developmental difficulties.

Recently, the Federal Bureau of Prisons has been trying to engage staff members. They want them to demonstrate why this type of housing would be necessary for inmates before placing them in these sections. The goal is to create safe environments without infringing upon constitutional rights and freedoms.

Prison authorities must utilize protective custody only as a last resort, per PREA laws. This has to happen after determining that there is no other feasible option for safeguarding the prisoner.

The PREA guidelines also set time limits on how long someone can stay in segregation. Additionally, they demand that the inmates must have normal access to employment and educational opportunities and programs.

The LGBT inmates may also stay in segregation during the intake process, per PREA guidelines. During this time, the prison officials must be assessing for an appropriate way of integrating the inmate into the general population. The segregation may also be necessary after abuse as officials undertake an investigation.

Placement in Gender-Specific Institutions

Most authorities place transgender inmates in men’s or women’s institutions based on their genital traits or birth gender. As a result, they end up at risk of assault and abuse. PREA laws prohibit agencies from placing transgender convicts solely based on their anatomy without considering other variables. However, this practice continues to persist.

The PREA Standards require agencies to do a case-by-case evaluation. They must consider variables such as the prisoner’s health and safety, as well as the prisoners’ own opinions on their preferable place.

Transgender Inmates and Their Medical Needs

Transgender and gender-nonconforming individuals often experience various sorts of discrimination. Facilities may restrict individuals’ access to gender-appropriate clothes or grooming goods. Additionally, they may face punishment for trying to show their gender identification in any way.

Further, some institutions continue to concentrate decisions concerning the medical requirements of transgender persons in the hands of administrators rather than health care clinicians. As a result, they enact blanket rules denying hormone treatment or other transition-related care to transgender individuals.

However, federal regulations require all inmates, including those who identify as LGBT, to access medical care while incarcerated. Moreover, the Federal Bureau of Prisons has guidelines regarding transgender prisoners’ treatment through Gender-Affirming Care.

Gender-Affirming Care

These are transition-related health care services. In general, gender-affirming healthcare includes:

Primary care.
Gynecologic and urologic care.
Reproductive treatments.
Communication therapy, including voice modification.
Access to mental care services. This includes assessment and counseling.
Hormone treatment and surgical needs.

Some prison officials note that this medication option is important to maintaining the health and safety of inmates. Without it, transgender prisoners may develop depression and be at greater risk of life-threatening auto-castration.

It is important to note that these policies are not perfect and do not always result in the best outcomes for transgender individuals, but they are a step in the right direction.

However, many prison officials are unaware of what this entails or refuse to provide it, citing security concerns. This can often lead to mistreatment and abuse of transgender inmates by correctional staff and other inmates.

Conjugal Visits for LGBT Inmates

LGBT inmates are also subject to discrimination in this area. Most prisons currently allow conjugal visits for heterosexual couples, but not same-sex partners. This is regardless of the fact that these individuals may be legally married under state law. As a result, they face separation from their spouses and even possible criminal penalties if caught engaging in sexual activity with each other.

Some Department of Corrections allow conjugal rights visitations for same-sex inmates at the state level. For instance, the California DOC adopted this policy in June 2007. The policy was created to meet with a 2005 state legislation mandating state entities to grant the same privileges to domestic partners as heterosexual spouses

The California Department of Corrections said it would allow same-sex conjugal visits. The policy was created to meet with a 2005 state legislation mandating state entities to grant the same privileges to domestic partners as heterosexual spouses obtain.

These guidelines allow for LGBT conjugal visits only for registered married persons or domestic partners. Additionally, the provisions require that such a marriage must have been in existence before the spouse’s incarceration. Similarly, the New York DOCC approved to allow conjugal visits for same-sex inmates in April 2011.

LGBT Youth Prisoners in the United States

The number of these youth in prison is unknown, as most states do not track this information. However, there is an estimate that they make up between 13 and 15 percent of the juvenile justice system overall.

LGBT youth often experience abuse and mistreatment while in custody. This mistreatment often results in mental health issues such as depression and suicide.

They are also more likely to be placed in solitary confinement than their straight peers. This can further increase their risk of physical and emotional harm.

In addition, these youth are often placed in adult facilities even when they have not yet reached the age of adulthood. They may also face discrimination during parole hearings or while on work release programs. As a result, there is a high chance of them re-offending and returning to prison.

The Federal Bureau of Prisons has created guidelines regarding this issue. However, it is up to individual states to decide whether or not to follow them. This makes it difficult for LGBT youths who end up in state prisons in particular since there is no standard set of policies governing the handling of each case across all jurisdictions.

Psychiatric and Civil Commitment Facilities

These institutions are under the management of the government, commercial contractors, and non-profit groups. They keep inmates for involuntary mental health treatment or civil commitment. These institutions are subject to constitutional rights to be free of abuse and other inhumane treatment. However, they are not subject to the PREA Standards.

Some of these facilities may also be subject to anti-LGBTQ discrimination legislation or accreditation criteria that ban anti-LGBTQ discrimination among inmates.