On January 20, President Donald Trump unveiled an executive order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” It contains two directives for the United States Attorney General pertaining to the rights of transgender people while incarcerated.
The first is to “ensure that males are not detained in women’s prisons or housed in women’s detention centers, including through amendment, as necessary, of [the Prison Rape Elimination Act].” The second is to ensure that no Federal Bureau of Prisons (BOP) funding is used “for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Most of my adult life has been spent in men’s prisons and jails. While in Georgia Department of Corrections (GDC) custody I sued repeatedly for access to gender-affirming medical care like hormone-replacement therapy and laser hair removal. Trump’s order leaves me extremely worried for all gender nonconforming people across the United States, but particularly the 1,538 trans women currently incarcerated in BOP facilities as well as the thousands more in state prisons.
The Prison Rape Elimination Act (PREA), the federal law aimed at decreasing sexual assault in prisons, is a fraught one for LGBTQ+ prisoners and often compounds the harm it purports to address. The guidelines described in the Department of Justice’s PREA Prisons and Jail Standards currently include explicit protections for trans and intersex prisoners. These include making housing assignments for trans prisoners—including whether to send them into the men’s system or the women’s—”on a case-by-case basis [considering] the inmate’s health and safety, and whether the placement would present management or security problems.” The document also stipulates that input from trans or intersex prisoners with respect to their “own safety shall be given serious consideration.” The guidelines are mandatory for BOP facilities; for state prisons they’re optional, but incentivized.
The federal system has taken a more accommodating, humane approach to trans people in custody compared to state prisons, at least on paper.
County jails should also be part of this conversation. A trans woman detained in a jail that won’t give her her estrogen, for example, has little recourse. There’s no time for a lawsuit specific to a facility you’ll only be at for a year or two, let alone months or weeks or days. Though oversight has never exactly stopped corrections departments from violating anyone’s rights, compared to state or federal prison systems county jails operate as smaller, more independent facilities where it’s that much easier to get away with whatever they want. The more openly hostile the rhetoric around trans prisoners becomes, the more empowered county jail staff will be to operate according to personal beliefs.
Despite Trump’s claims about “transgender operations on illegal aliens,” to date the BOP has only provided gender-affirming surgery to two trans women in its custody, in both cases under court order to do so. In federal and state prisons alike, trans people have never had a legislative path to health care. It happens through litigation, or not at all. But historically, the federal system has taken a more accommodating, humane approach to trans people in its custody, at least on paper.
The BOP states somewhat prominently on its website that all federal prisons understand “the importance of appropriate gender affirming management and treatment of transgender individuals in our custody.” In 2022 the agency rolled out a “Transgender Offender Manual” that explicitly supports access to gender-affirming surgery. It followed that in 2023 with a clinical guidance document titled “Gender Affirming Care of Transgender and Gender Nonbinary Persons.”
The effect of this order will not be lasting policy change. The effect will be a flood of litigation that will fail.
Federal precedent, even when not binding, is highly persuasive. When I was putting together my first lawsuit against GDC over a decade ago, I had a few examples of binding authority—mandatory rulings from previous cases—that medical care is a constitutional right for someone in custody, and the state must provide it if removing someone’s ability to access it on their own. But I also used thousands of pages of federal cases from around the country, which were non-binding to jurisdictions other than their own, to demonstrate how those courts had considered the very same issues I was raising with GDC and how they’d arrived at a more evidence-based, rational and humane conclusion. And they were taken seriously.
The effect of this order will not be to create lasting policy change. The effect, which I think we can assume is intentional, will be to prompt a flood of litigation that will fail.
The majority of current state legislators are Republican. We have a Republican president, a Republican majority in both chambers of Congress, and an increasingly conservative Supreme Court. No one expects such a flagrant human rights violation as Trump’s executive order to go unchallenged. An executive order can always be undone by one’s successor, and a law can always be overturned by the courts. But if federal legal precedent is on your side, that tends to be a lot more permanent.
Photograph via United States Department of Justice
Show Comments