The Present State of Housing and Treatment of Transgender Incarcerated Persons

Terms and Definitions

“Transgender” is an umbrella term that is used to describe individuals whose gender identity is different from their external sexual anatomy at birth. In the DSM-IV-TR,³ the associated diagnosis was “gender identity disorder” (GID).³ This diagnosis was eliminated in the DSM-5 and replaced with “gender dysphoria.”⁴ This change focused on the gender identity-related distress that some TGD individuals experience and seek care for, rather than the TGD identity itself. This is an important distinction because, with this change, it is no longer considered pathological to be TGD. Instead, the dysphoria itself may be pathological, and appropriate treatment may include not only psychological interventions, but also gender-affirming medical and surgical interventions.

The term “sexual reassignment surgery” has been replaced with “gender affirmation surgery,” which is preferred because it focuses on how the treatment brings individuals’ external sexual characteristics into alignment with their gender identity, rather than “reassigning” something innate about the individual. It is important to note, however, that being TGD is not dependent upon the individual’s physical appearance or medical transition.⁵

Another concept that has become increasingly recognized is “gender nonbinary” or simply “nonbinary.” This term is used to describe individuals whose gender identity or expression do not fall within the binary gender identities of male or female. Given that this is a broad term that encompasses many different people with many different conceptions of their gender, nonbinary individuals may or may not consider themselves part of the TGD community. Because most carceral settings operate in a binary system, we will be focusing on TGD individuals, and we will consider nonbinary individuals as TGD for the purposes of this article.

Epidemiology

Although only .5 to .6 percent of the adult population is TGD, TGD people are disproportionately represented in correctional settings.^6,–,8 TGD individuals often face stigma beginning in childhood because of gender identity-based harassment, and many are rejected by their families. This marginalization often leads to homelessness and lack of employment, putting them at high risk not only for substance use and other mental health disorders, but also for relying on criminal activity such as sex work or selling illicit drugs to meet their basic needs.^9–10 In turn, substantial numbers of TGD inmates enter the correctional system.

In 2013, there were minimal data on this population. In 2014, Reisner and colleagues⁹ analyzed data from the National Transgender Discrimination Survey (NTDS), which was a survey distributed to the largest convenience sample of TGD adults in the United States to date. Out of 3,879 TGD women, 19.3 percent reported histories of incarceration, in comparison to less than three percent of the general population. Black and Native American TGD women were more likely to report a history of incarceration than White, non-Hispanic respondents. Among TGD women who were previously incarcerated in either a jail or prison, 47 percent reported victimization, defined as harassment and physical or sexual assaults from other inmates or staff. A quarter reported being denied health care.⁹

Current Standards of Care

The World Professional Association for Transgender Health (WPATH) is a nonprofit organization dedicated to the health of TGD and gender-diverse individuals. The WPATH Standards of Care (SOC) are recognized by some U.S. courts as a benchmark for treating gender dysphoria¹¹ and are referenced by the National Commission on Correctional Health Care (NCCHC)¹² and the American Psychiatric Association (APA).¹³ The guidelines outline best practices in the assessment and treatment of gender incongruence, founded on both a review of the available literature and consensus-based expert opinion. The eighth version of the guidelines (SOC8) was released in 2022.¹⁴

The new WPATH guidelines de-pathologize gender nonconformity and differentiate it from gender dysphoria. They draw attention to the concept of gender incongruence, a new term in the World Health Organization’s International Classification of Diseases and Related Health Problems, 11th Version (ICD-11).¹⁵ Whereas gender dysphoria requires clinically significant distress or impairment in functioning, gender incongruence points to the evolving understanding that diverse gender identities are not inherent states of ill health or dysfunction. SOC8 advances the principle that gender-affirming care (GAC) is essential for the health and wellbeing of all TGD persons, regardless of a diagnosis of gender dysphoria, which is often required by insurance companies to warrant gender-affirming treatments.

The main pillars of treatment for gender incongruence remain gender-affirming hormonal and surgical treatments. Hormone treatments involve the administering of feminizing or masculinizing hormones (estrogen and testosterone), alongside antiandrogen medications in some cases. In addition to “top surgeries” (double mastectomy, breast augmentation) and “bottom surgeries” (phalloplasty, metoidioplasty, and vaginoplasty), SOC8 includes an expanded list of medically necessary procedures including gender-affirming facial surgery, body contouring, and voice therapy or surgery. Some TGD persons seek gender-affirming treatments, while some do not and may wish to transition without medical interventions.

The previous requirement of assessment by two medical providers prior to accessing gender-affirming medical or surgical treatments (GAMSTs) was changed to a single medical opinion in SOC8, as was the requirement of an assessment (or two for genital surgery) by a mental health professional. The previous recommendation that a person live in a gender-concordant manner publicly, known as social transition, for a period of 12 months prior to accessing GAMST is also changed; there is greater recognition that such a social transition may not be possible and should not be a barrier to care. This is especially salient in a correctional environment where living as, for example, a TGD woman housed in a male institution may pose safety concerns. The prior requirement of 12 months of hormonal treatment prior to surgical intervention has been reduced to six months and removed altogether for nonbinary persons not pursuing hormonal treatment. The guidelines provide new recommendations for the care of eunuchs, intersex, and nonbinary persons. Nonbinary individuals face greater barriers to accessing care than TGD individuals, and nonjudgmental exploration of treatment options is recommended, with caution against making assumptions about what options might fit each person.

The guidelines recommend TGD individuals who are institutionalized, including in carceral settings, be afforded treatment without delay and that people with gender dysphoria should be provided “medically necessary surgical treatments that contain similar elements provided to persons who reside outside institutions” (Ref. 14, p S106). There are expanded recommendations for gender-affirming practices in institutions, including the use of chosen names and pronouns, the availability of gender-affirming hygienic and grooming supplies, and the assignment of housing based on preference, gender identity, and safety considerations rather than on external genitalia or assigned gender. Nonbinary and other gender-diverse individuals are not easily fit into the dichotomous structure of correctional facilities, so flexibility is recommended when housing these individuals. Finally, TGD persons should not be placed in segregation or isolation solely based on their gender identity; this should only be done to address safety concerns.

Prison Rape Elimination Act

The Prison Rape Elimination Act (PREA)¹⁶ was enacted in 2003 after a congressional inquiry was launched into sexual assault in the correctional system. PREA standards are intended to align practices across local, state, and federal institutions to eliminate sexual violence in prisons. The standards were implemented in 2012 and have jurisdiction over both state and federal correctional facilities, including privately operated facilities.¹⁷ The standards include sections on prevention of sexual violence, responsive planning, training and education, screening for risk of sexual victimization and abusiveness, reporting, official response following report, investigations, discipline, and compliance.¹⁷

PREA contains 13 provisions specifically addressing TGD inmates, which are outlined in Table 1. There are definitions and requirements pertaining to staff training, prevention and response to abuse, and housing and classification. Regarding staff training, PREA states that no inmate will be physically examined for the “sole purpose of determining the inmate’s genital status” (Ref. 17, § 115.15), and training must be provided in conducting respectful cross-gender pat-down searches. Employee training should also include instruction on communicating “effectively” with LGBT inmates, although the act does not describe effective communication or provide examples of such practices. In terms of prevention and response to abuse, staff must consider whether inmates’ LGBT status or perceived status affects their risk of victimization or was a motivating factor in their abuse. With respect to housing and classification, there are three recommendations about using information on gender identity to assign a TGD inmate to a particular facility: decisions should be made on a case-by-case basis; decisions should be reassessed twice per year; and the TGD inmate’s own views should “be given serious consideration” (Ref 17 §115.42). TGD inmates should be able to shower separately and not be placed into involuntary segregation solely because of their LGBT status.¹⁶

Finally, LGBT inmates should not be segregated into separate facilities, as this separation can be stigmatizing, lead to a decrease in access to programming and recreation, and in some cases be synonymous with solitary confinement, which causes psychological distress and has been recognized as a form of inhumane punishment.^18,–,21 PREA does allow an exemption of this statute under a consent decree or settlement agreement. For example, the K6G unit of the LA County Men’s Central Jail has been operating since 1985 and described as an affirming and humanizing alternative for LGBT inmates.^22,23

Malkin and DeJong²⁴ analyzed states’ policies on TGD inmates with attention to each of the PREA provisions addressing TGD inmates. They found that only Indiana contained all 13 of the PREA provisions addressing TGD inmates, and only one-quarter of state policies included most of the provisions. Malkin and DeJong also found that 40 percent of states had policies that were incompatible with the TGD-related PREA provisions. For example, Hawaii and Idaho have blanket policies to house inmates based on their sex assigned at birth; and segregation or “protective custody” based on TGD identity is still commonly used in the District of Columbia, Virginia, and Oregon. Overall, the PREA provision least commonly included was the one preventing the use of segregation based solely on LGBT status.²⁴

States not in compliance with PREA regulations must forfeit five percent of federal funding provided to the state correctional department unless the state can provide assurances that it is using the federal funds to work toward compliance. According to the Bureau of Justice, as of 2020, 21 states and the District of Columbia were fully compliant with PREA, and 30 provided assurances of working toward compliance.²⁵ Only two states (Alaska and Utah) provided neither. At the time of writing, Alaska was planning to provide an assurance, leaving Utah as the only state that continues to refuse the implementation of PREA.

The United States Appeals Courts have ruled differently with respect to inmate claims of Eighth Amendment violations for failures to conform policy to PREA guidelines. For example, in Williams v. Kincaid,²⁶ the Fourth Circuit held that gender dysphoria is a protected disability under the Americans with Disabilities Act (ADA) and is different from its original exclusion of gender identity disorder. The diagnosis of gender identity disorder was excluded as qualifying as a disability in 42 U.S.C. § 12211. The court also held that Kesha Williams, a TGD woman imprisoned in Virginia in a men’s facility, had been discriminated against and that the prison’s blanket policy of housing inmates by genital status was in direct contravention of federal regulations under the Prison Rape Elimination Act that require determination be made on a case-by-case basis. Justice Quattlebaum dissented and argued that gender dysphoria was similar enough to gender identity disorder to be exempt from the ADA. He also argued that Sheriff Kincaid was not grossly negligent, as she demonstrated some degree of care in attempting to balance housing decisions with safety concerns of cis-gendered female inmates and correctional staff. In Rivera v. Bonner,²⁷ the Fifth Circuit held that while PREA was a helpful guideline, it did not establish a constitutional obligation for institutions to conform their policies and training to PREA.

Despite the very small number of TGD inmates who are housed based on their gender identity,²⁸ it is currently a matter of social controversy. In March 2023, Republican lawmakers introduced the “Preventing Violence Against Female Inmates Act of 2023” in the U.S. Senate and House of Representatives that would prohibit such housing in state and federal correctional institutions.²⁹ The case of a New Jersey trans woman impregnating two inmates garnered significant media attention and raised important considerations for such housing decisions, including the realities of consensual sexual interactions in such facilities, the difficulties of discerning consent in institutional settings, and the lack of available condoms in U.S. prisons and jails.³⁰

Access to Treatment in U.S. Federal Prisons

The U.S. Federal Bureau of Prisons houses approximately 1,200 TGD inmates and has undergone several revisions to its TGD inmate policies following successive presidential administrations.³¹ In 2017, the Transgender Offender Manual recommended TGD inmates be “hous(ed) by gender identity when appropriate” (Ref. 32, p 6). The manual also recommended that “hormone or other medical treatment may be provided after an individualized assessment” (Ref. 32, p 8). This policy was changed in 2018,³³ using biological sex as the initial determination for housing decisions as well as adding medical necessity for gender-affirming treatments. The manual was revised again in 2022.² The provision on the use of biological sex as the initial determinant of inmate placement was removed, as was the terminology of medical necessity. A new subsection was added specifically addressing access to gender-affirming surgery, noting that a case could be referred to the Transgender Executive Council for approval after “one year of clear conduct and compliance with mental health, medical, and programming services” (Ref. 2, p 9) The updated manual also contained a new provision outlining that staff must not deliberately misgender an inmate by using incorrect pronouns.²

Despite changes to formal policy, access to care still faces considerable barriers in practice, especially regarding surgical interventions. Cristina Nichole Iglesias was one of the first federal inmates to access gender-affirming surgery after the Federal Bureau of Prisons was ordered in 2022 to secure her surgery following three years of litigation by Ms. Iglesias.³⁴

Access to Treatment in U.S. State Prisons

In 2017, Routh and colleagues³⁵ conducted a detailed review of state statutes and department of corrections (DOC) policies concerning TGD inmates’ access to care, analyzing whether there were provisions for counseling, the continuation and initiation of hormone therapy, and sex-reassignment surgery. They found that most states had a policy that specifically considered TGD inmates, and of those that did, the policies generally recognized the diagnosis of gender identity disorder or gender dysphoria. The states that did not have a specific TGD policy recognized the Prison Rape Elimination Act, with its provisions for the protection of TGD prisoners from sexual violence. At the time of writing, 21 states had formally expanded access to care for TGD inmates. Only New Mexico, Tennessee, and Indiana disallowed all gender-affirming medical treatment once a person is incarcerated, down drastically from the 28 states that did so five years previously. Thirty-three states allowed for the continuation of hormone therapy, 28 allowed for the initiation of hormone therapy, and 13 allowed “sex reassignment surgery.” The policies of eight states were either unknown or not publicly available (Louisiana, Alaska, Florida, Kansas, Kentucky, Mississippi, Montana, and Utah).³⁵

This expansion of services is likely in response to the legal success TGD inmates have had in gaining recognition of gender dysphoria as a serious medical concern, establishing grounds for deliberate indifference claims under the Eighth Amendment.³⁶ The Seventh Circuit ruled that blanket bans on treatment for gender dysphoria are unconstitutional.³⁷ There is, however, a circuit split on what constitutes deliberate indifference in the care of TGD inmates. The Fourth,³⁸ Seventh,³⁷ and Ninth Circuits¹¹ have ruled in favor of plaintiffs’ claims, recognizing the WPATH SOC as the widely accepted guidelines for the treatment of gender dysphoria, and ordered access to care, including surgical treatments in some cases.^11,37,38 In contrast, the First, Fifth, and Eleventh Circuits have ruled in favor of defendants,^39,–,41 and held that less comprehensive gender-affirming care can negate the high bar for deliberate indifference,³⁹ that the WPATH SOC do not represent a medical consensus on the treatment for gender identity,⁴⁰ and that courts should defer to the safety concerns cited by correctional institutions in their reasons for providing or declining to provide certain elements of gender-affirming care.⁴¹

The Supreme Court has not directly addressed the matter of what constitutes medically necessary care for TGD inmates. It has denied applications for certiorari in the First, Seventh, Ninth, and Eleventh Circuits.

Despite this expansion of services, there have been an unprecedented number of bills introduced by Republican law makers banning aspects of gender-affirming medical care in 2023, including bills banning correctional departments from funding gender-affirming surgery,⁴² and bills criminalizing gender-affirming care for youth in Florida, Idaho, North Dakota, and Oklahoma.⁴³ Practitioners should familiarize themselves with state policies and legislation governing gender affirming care, as it is an area that is rapidly evolving.

Housing and Safety

The 2022 Transgender Offender Manual² incorporates the thirteen PREA provisions related to TGD inmates. The manual states that housing should be considered on a case-by-case basis with some consideration given to the inmate’s own gender identity. TGD inmates must have the opportunity to shower separately from the general population. It also establishes that TGD inmates cannot be placed in dedicated wings based on their gender identity unless established by separate legal action (e.g., consent decree) for safety purposes. If an inmate is transitioning, transfers to facilities concordant with their gender identity are considered upon the condition that the inmate has been compliant with programs, medications, and mental health treatment and is meeting hormone goal levels. These guidelines are consistent with PREA requirements.

As noted in our discussion of PREA implementation, states vary considerably in their implementation of the housing and safety standards, without recognizable patterns. For example, as of 2018 only Indiana contained all 13 provisions.²⁴ About half of the states contain at least seven; for example, California had seven, New York had eight, and Texas had 11.²⁴ A quarter of the states had less than four of the provisions.²⁴ Florida, Indiana, Illinois, and Mississippi contained no accessible data about their policies at the time of publication.²⁴

Safety is an important factor in housing decisions, especially because TGD inmates are at considerably higher risk of physical and sexual violence than the general population.⁴⁴ Safety should also extend to protecting other inmates from potential violence perpetrated by a TGD individual. For example, there may be concern about the risk of victimization from an inmate assigned male at birth transitioning to female who is housed in a female facility. PREA includes standards that mandate screening to assess TGD inmates’ vulnerability to attacks as well as the risk that they themselves will be physically or sexually abusive toward other inmates. It states, “The initial screening shall consider prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the agency, in assessing inmates for risk of being sexually abusive” (Ref. 16, § 115.41). The 2022 Manual includes provisions on initial housing screening and transfer requests protecting “the wellbeing of all inmates” (Ref. 2, p 6), which specifically incorporates the inmate’s “criminal and behavioral/disciplinary history” and “likelihood of perpetuating abuse” (Ref. 2, p 6). On a state level, no comprehensive literature search has been published to date about specific protections afforded to cisgender inmates or the incidence of violence against the cisgender population.

Ongoing Challenges

Conclusions

The matter of housing and access to care in the TGD incarcerated population is a complex topic that will continue to evolve alongside the evolving standards of decency in our society. Despite updates in care standards and U.S. prison manuals regarding policies related to TGD inmates, there is a lack of uniformity, and enforcement of best practices varies widely across the United States. The ethics concerns of safety, housing, and equity are important, and proposed solutions continue to be debated. Safety concerns are bidirectional with regard to TGD incarcerated persons and the general population; although we focus on the question of safety of the general population from the TGD individual, the TGD population is at a much higher risk of victimization.⁹ Expanding educational services to staff is fundamental to enacting such changes. Ultimately, expanding services and protections of the TGD population may ensure the humane treatment of all incarcerated persons.