Going to prison is already a nightmare—but it’s even worse for transgender women.
In a recent interview with NBC’s Matt Lauer, Caitlyn Jenner spoke about her fear of being housed in a men’s jail. The reality TV star and former Olympian faces potential misdemeanor involuntary manslaughter charges for a February car accident that left a woman dead, and the possibility of jail time raises other concerning questions. When Lauer asked Jenner about what could happen next, she said, “That is the worst case scenario… the men’s county jail. That’s the scary part. It’s an enormous problem that they would put trans women in a men’s county jail.”
Although legal experts believe it is unlikely that Jenner will face charges for the accident, the housing of trans women in men’s prisons is a very serious problem throughout the country. Just in the last few days, San Francisco County made headlines with its decision to work toward housing transgender inmates by their gender identity—not the sex they were assigned at birth. But in the rest of the United States, that’s sadly standard practice.
This is especially dangerous as the trans community experiences an extremely high risk of incarceration. Transgender people face what is essentially a perfect storm for ending up in the criminal justice system— high rates of poverty, legal employment discrimination, and profiling by police officers.
According to the 2011 National Transgender Discrimination Survey, more than one in five trans women have spent time in jail or prison, a rate nearly eight times the average for the U.S. population. That number is far higher for African-American trans women, for whom a staggering 47 percent have been jailed or imprisoned at some point. That makes black trans women 80 times more likely to have been incarcerated than the general population of black women.
Many of these conditions may not befall someone like Caitlyn Jenner, but nonetheless, they’re pervasive for many members of the trans community.
The links between poverty and incarceration have been established for a number of years, and trans people, overall, are four times more likely to be making less than $10,000 per year than their cisgender counterparts. Finding and keeping work is considerably harder for trans people, with more than half having been fired because of their gender identity. More than 75 percent have been forced to endure some kind of abuse in the workplace.
Many of these realities may not be true for someone like Caitlyn Jenner, but nonetheless, they’re pervasive for many in the trans community.
The lack of employment and security often drives some of the most marginalized portions of the community into the underground economy. Nearly half of black trans women have been involved in sex work at some point—compared to roughly one percent of cisgender women—and black trans sex workers face nearly twice the risk of homelessness. Working in the underground economy makes trans women of color far more likely to come into contact with law enforcement—which in turn, increases their risk of ending up in prison.
But for trans women of color, all it takes to get locked up, in most cases, is simply existing. In 2013, sex worker advocate Monica Jones was arrested in Phoenix for accepting a ride from an undercover police officer and later convicted of “manifesting prostitution.” After intense outcry from the trans community and fundraising efforts for her appeal, that conviction was eventually overturned earlier this year.
Once inside, the lives of incarcerated trans women can be described as a little more than hellish.
In June, Meagan Taylor was arrested in Iowa after employees of the hotel she was staying in with a friend called the police, assuming they were prostitutes. No evidence of prostitution was found, but Taylor was arrested for not having a copy of the prescription for her hormones. Their treatment at the hands of law enforcement reinforced the findings of a 2014 study from Columbia University, which concluded that trans women of color are systematically profiled as sex workers by law enforcement.
And both of those women were housed in men’s facilities.
Because of widespread misconceptions about sex and gender, trans people are generally housed in prisons or jails that correspond to their genitals—especially if they haven’t had a gender-affirming surgery. Once inside, the lives of incarcerated trans women are hellish, as they are subjected to horrifying levels of sexual assault and other physical violence at the hands of fellow inmates and prison guards. A study in California prisons showed that more than 50 percent of transgender inmates had been sexually assaulted, a rate more 13 times the general prison population.
Earlier this year, Ashley Diamond filed a lawsuit against the Georgia Department of Corrections after she was repeatedly mocked by prison officials as a “he-she thing” and raped seven times while in custody. And in Texas, the civil rights organization Lambda Legal filed suit on behalf Passion Star, who was subjected to over a decade of rape and abuse at the hands of other inmates and prison staff—including one corrections officer who told her “you can’t rape someone who’s gay.”
The only option to escape the general male population is to elect “protective custody,” which is nearly identical to punitive solitary confinement. It’s an issue amplified in recent episodes of Orange Is the New Black, and one that has real-world implications. Unfortunately, so-called protective custody often proves to be anything but. A number of trans women have come forward about unfair treatment and assaults by prison guards while in a protective unit. In New York, Dee Dee, a trans woman being held in protective custody, wrote a lengthy account of her experience, noting in part:
There are no interactions from your cell with anyone for 23 hours a day aside from C.O.’s delivering your food trays three times a day. You can try to yell through the door but it’s a hassle because your voice barely gets through and you have to repeat yourself over and over. We have a recreation pen (rec. pen) at the back of our cells where you can go outside but it’s like being in a dog kennel. We’re told that the rec pen is our “additional out-of-cell” time; indicated in the New York Department Directives for protective custody units.
To add insult to already horrific injury, trans inmates struggle to continue their hormone treatment while in prison, according a report from the National Center for Lesbian Rights. Even those who are provided hormones are often not given appropriate dosage or monitoring. This issue made headlines in 2013 when Chelsea Manning sought hormone treatment while serving her federal sentence at Fort Leavenworth, which was initially denied by federal officials.
Ashley Diamond is also suing for the right to continue her hormone treatment in jail but was released shortly after the court ruled in her favor. Fortunately, the U.S. Department of Justice released an opinion stating that withholding hormone treatment is a violation of the 8th Amendment, which mirrors a Supreme Court ruling about inmate health care from the 1970s. But it remains to be seen how this will affect the policies of individual states and prisons.
The criminal justice system in the United States is a potent machine of oppression for the transgender community, particularly trans women of color. There are some slow reforms coming, but they’re too late to help women like Ashley Diamond, Zahara Green, and Meagan Taylor. Caitlyn Jenner is right to be nervous, but for trans women of color, they have every reason to be terrified.
Mari Brighe is a writer, educator, and proud science PhD dropout. Her writing focuses on queer and transgender life, feminism, science, and pop culture nonsense. Her work has also appeared on Autostraddle, Salon, and TransAdvocate.
Illustration by Max Fleishman