Under Attorney General Jeff Sessions, the Department of Justice continues to pull back from policies the previous administration put into place to be more accommodating to transgender people in government facilities.
This time, the Federal Bureau of Prisons is partly rolling back its accommodations for transgender prisoners. As President Barack Obama was heading out the door, the Department of Justice released a guidance calling for federal prisons to accommodate a transgender inmate's gender identity "when appropriate."
Sessions isn't completely overruling this guideline. Instead the Justice Department is telling prisons to start with the default position that "biological sex" will be used to determine whether to house an inmate with male or female prisoners.
Prisons will still have clearance to make decisions to "consider the health and safety of the transgender inmate, exploring options available to assist with mitigating risk to the transgender offender" and to consider whether placement would pose a risk to other inmates or threaten management or security of the prison.
But the changes are clearly pushing prisons to default to putting transgender women alongside men, even if those trans prisoners are essentially living as women and even taking hormones.
Of a more subtle but still significant concern, the guidance has been amended throughout to add the word "necessary" in front of all references to "medical treatment" when referring to transgender inmates' needs, suggesting that the prison bureaucracy will play a role in determining what access transgender inmates will get to health care related to their gender transitions.
This comes on the heels of a lawsuit by a pack of female prisoners in Texas, who challenged the Obama administration's guidance on the grounds that adding transgender inmates violates their privacy and mental health, increases their potential for rape, and somehow violates their rights under the Religious Freedom Restoration Act. Interestingly, the Department of Justice has essentially called bullshit on this suit in their response. The women are not even housed in the same area as any transgender inmates, and they have not previously filed any administrative complaints indicating any substantiated abuse or threats by transgender inmates, according to the Justice Department. The case was settled out of court last year but the outcome was not disclosed.
Of these two groups of inmates—cisgender women and transgender prisoners—the latter are statistically more likely to be assaulted in prison. According to the Bureau of Jail Statistics, about a third of transgender prisoners in state, federal, and local jails have reported some sort of sexual victimization in various surveys conducted from 2007 to 2012. In a 2012 prison survey, by contrast, cis women report sexual victimization rates of between 5 and 10 percent, depending on the type of detention facility. Also of note: All these numbers include victimization not just by other inmates but by prison staff.
Needless to say, that doesn't mean one group deserves protection from assault more than the other does. But one reason we should be concerned—one reason why these decisions are so significant—is because there's increased risk of assault and other sexual mistreatment when transgender women are imprisoned alongside men. You don't have to go all-in on accepting everything transgender advocates say about the validity of their gender experiences to recognize the ethical responsibility prisons have in preventing them from being sexually assaulted.
Is there a better way? Perhaps don't attempt a one-size-fits-all solution in either direction. Let's start with the assumption that a transgender person's chosen identity is not fraudulent and isn't there for the purpose of getting access to women to assault. If officials believe that they're lying or that they're otherwise a threat to other inmates, the onus should be on them to prove that individual inmates cannot be accommodated. We shouldn't be demanding that transgender prisoners prove that they're not threats in order to be accommodated.