The Federal Bureau of Prisons (BOP) is rolling back an Obama-era policy put in place in 2012 that was intended to protect transgender inmates in federal prisons.
The BOP on Friday released changes to its Transgender Offender Manual, and the revised manual strikes a sentence that instructs officials to consider transgender inmates’ “gender identity” when making decisions regarding prison housing. The manual now mandates officials “use biological sex as the initial determination” for placement decisions.
"The extreme rates of physical and sexual violence faced by transgender people in our nation’s prisons is a stain on the entire criminal justice system."
An inmate’s gender identity will now only be considered in “rare cases” when the inmate’s behavioral history, safety and “significant progress toward” medical transition — as well as the safety and security of other inmates and prison staff — compel prison officials to do so.
“The manual now addresses and articulates the balance of safety needs of transgender inmates as well as other inmates, including those with histories of trauma, privacy concerns, etc., on a case-by-case basis," a BOP spokesperson told NBC News. "Additionally, the manual now states that training on the management of transgender inmates will include information about best practices for maintaining the safety of the transgender inmates as well as the safety of staff, other inmates, and the public.”
The changes to the manual come after four female inmates sued the federal government in 2016 in Texas District Court claiming “their constitutional rights and their rights under the Religious Freedom Restoration Act” were being violated by being housed with transgender women.
"Blending of the sexes in the confined and restricted conditions attendant to prisons violates the privacy of female inmates and causes numerous dangers and threats to the physical and mental health and safety of our female Plaintiffs," the complaint states. "The basis for the recent changes to rules and regulations is a politically-driven agenda to affirm that gender identity theory, rather than biological sex, is the normative basis to determine whether an inmate is male or female."
In lieu of defending the Obama-era transgender inmate policy, the Department of Justice, led by Trump appointee Jeff Sessions, deferred resolution of the issues raised in the Texas case to BOP Director Mark S. Inch, an appointee of Sessions.
Transgender-rights advocates were quick to condemn Friday’s policy change and the Trump administration, which has advocated for a number of measures that have sought to roll back the rights of lesbian, gay, bisexual and transgender Americas.
“The extreme rates of physical and sexual violence faced by transgender people in our nation’s prisons is a stain on the entire criminal justice system,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement. “Instead of leaving the existing policy alone, the administration is clearly prepared to encourage federal prisons to violate federal law and advance its own inhumane agenda.”
Aryah Lester, founder of transgender advocacy group Trans Miami, said the new policy will “lead to increased violence against transgender individuals.”
“When someone who presents pretty much as your stereotypical female [is] put in a male institution just because her birth certificate says male, that automatically puts her in danger,” Lester told NBC News, adding that the policy is further proof the Trump administration believes “trans people’s lives don’t matter.”
PRISON RAPE ENFORCEMENT ACT
Civil rights advocates said the revisions to the Transgender Offender Manual undermine the protections established with the 2003 Prison Rape Enforcement Act (PREA), passed unanimously in Congress and signed into law by President George W. Bush. PREA created the National Prison Rape Elimination Commission and mandated the development of standards to eliminate sexual assault, which were finalized in 2012. These regulations, among several other measures, required housing decisions of transgender prisoners to be made on a case-by-case basis.
PREA also mandated the collection of data on sexual assault in prison, and the 2014 National Inmate Survey found transgender prisoners are at higher risk for sexual violence than any other group. The survey found approximately 4 percent of all state and federal prison inmates and 3.2 percent of those in local jails suffered sexual victimization by other inmates or staff during the previous year. The same survey found 35 percent of transgender prison inmates and 34 percent of trans inmates in local jails experienced incidents of sexual victimization during the previous year.
Following the survey, the Department of Justice issued guidelines in 2016 that applied to all federal detention centers and stated “any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing or programs based solely on their external genital anatomy violates the standard.” Though not legally binding, the guidelines did put additional pressure on facilities to comply with BOP placement standards established in 2012.
Friday’s revisions to the Transgender Offender Manual reverses Obama-era policy and once again makes biological sex the default criteria when placing transgender inmates in prison housing.
“We had a rule that was evolving and standards that were evolving in the direction of recognizing that this was an extremely vulnerable group in the prison context,” Megan McLemore, senior health researcher at international civil rights group Human Rights Watch, told NBC News.
McLemore said even under the Obama administration, a high level of prison facilities were “ignoring PREA standards” intended to protect transgender inmates, leading the advocacy community looking for “stronger implementation and stronger enforcement.”
“My concern about this is that it is going to directly place transgender people in harm’s way,” McLemore added. “This is something that is going to result in harm and death, and that is very, very disturbing.”
Friday’s revisions to the Transgender Offender Manual will apply to all federally run prisons in the U.S. The BOP estimates at present there are 183,000 federal inmates in 122 facilities across the country.