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Transgender women are nearly always incarcerated with men. That's putting many in danger.

Out of 4,890 transgender state prisoners, NBC News was able to confirm only 15 cases in which a prisoner was housed according to their lived gender.
Michelle Kailani Calvin is a transgender female inmate at a California men's prison.
Michelle Kailani Calvin, a transgender woman, is incarcerated at a California men's prison.Brock Stoneham / NBC News

CHINO, Calif. — Michelle Kailani Calvin feels she doesn’t belong.

Surrounded by men in blue jumpsuits in the yard here at the California Institution for Men, Calvin described the trauma of her 15 years as a transgender woman incarcerated in men’s prisons.

Calvin, 48, who is serving a life sentence for robbery and carjacking, said she has fought off three rape attempts by fellow prisoners. The first time, in 2015, she said her cellmate hit her so hard she slammed into the cell’s door. When she reported the assault, she was told there wasn’t enough evidence to substantiate it, she said.

Fearing for her safety and feeling out of place, Calvin has requested a transfer to a women’s prison.

“I asked to go to a women’s prison, because I am a woman,” Calvin said.

But Calvin said her requests have been denied because she was assigned male at birth. She remains one of 78 transgender women housed with about 3,572 men at Chino, according to the prison’s spokesman.

The California Department of Corrections and Rehabilitation declined to comment on Calvin’s account.

Of the 10 transgender women at Chino who spoke to NBC News during a weekend visit last year, nine said they’d been sexually assaulted behind bars. Half said they’d requested a transfer to a women’s prison but had been denied; another said she hadn’t even asked because she assumed the request wouldn’t be approved.

Federal law requires state prisons to evaluate on a case-by-case basis whether to house transgender prisoners with men or women, after asking them where they would feel safest. But an NBC News investigation, based on dozens of documents received through public records requests and interviews with 18 current and former transgender prisoners, as well as researchers and advocates, found that nearly all transgender prisoners across the U.S. are housed, like Calvin, according to their sex at birth, not their gender identity.

Jiachuan Wu / NBC News

Out of 4,890 transgender state prisoners tracked in 45 states and Washington, D.C., NBC News was able to confirm only 15 cases in which a prisoner was housed according to their lived gender, based on responses to Freedom of Information Act requests over the past year. Seven of those states, including California, provided the total number of transgender prisoners but would not say where they were housed, citing privacy concerns. Five states — Alabama, Alaska, Indiana, Tennessee and Utah — did not respond to records requests at all.

Amy Miller, associate director of female offender programs for the California Department of Corrections and Rehabilitation, said the state regularly asks transgender prisoners about their housing preferences, as required by law, to ensure that they feel safe. “Definitely [it’s] something that it sounds like we need to work on as an agency,” she said, in response to the findings.

Based on the available records obtained from 45 states, just 13 transgender women are housed with women and two transgender men are housed with men. In Texas, which has one of the largest incarcerated populations in the country, none of the 980 transgender prisoners live in gender-affirming housing. The state’s 891 transgender women are housed with men, and its 89 trans men are housed with women. Pennsylvania’s 214 transgender prisonsers are all incarcerated according to their sex assigned at birth, as are Wisconsin’s 173 transgender prisoners.

These housing decisions can have dire consequences. Thirty-five percent of transgender people who had spent time in prison in the previous year reported being sexually assaulted by staff or fellow prisoners, according to a 2015 report by the Department of Justice.

Advocates say that the figure for trans sexual assaults is likely an undercount, because sexual assaults are underreported. Many of the current and former transgender prisoners said guards dismissed their reports or retaliated against them for reporting.

Transgender prisoners are also unable to express their gender in the most basic ways, including being called by a name that reflects who they are, they said.

In response to questions, some state prison representatives said they only moved transgender prisoners if the prisoners had received gender-confirmation surgery, regardless of their housing preferences. Others said that they review prisoners’ transfer requests on a case-by-case basis, as required by law. Most said they are fully compliant with federal law on housing transgender prisoners.

The small number of transgender prisoners housed according to their gender identity raises serious concerns, said Mateo De La Torre, director of policy and advocacy at the LGBTQ prison rights organization Black and Pink. More than half the letters he’s received from transgender prisoners while working at LGBTQ rights organizations are from people who have been denied transfers to gender-affirming housing, he said.

“It calls into question whether or not an individual's perspective of where they would feel safest is even being considered, let alone respected,” De La Torre said. This “directly violates” federal law, he added, which “endangers the lives of transgender people.”

Jolina Olivia Diaz, a transgender female inmate, walks the yard of the men's prison in Chino, Calif.Brock Stonehman / NBC News

The rules on housing transgender prisoners

The federal Prison Rape Elimination Act (PREA), which aims to stop sexual assaults behind bars, passed Congress unanimously in 2003. The law was implemented in 2012 with guidelines that, among other things, require prisons to interview transgender people when they arrive and then every six months afterward. The prisoners are asked about where they would feel safest — in a men’s or women’s prison — and corrections officials must take their concerns into account in deciding where to house them, according to the law. Officials must also consider any threats or violence the prisoners have faced.

In other words, legal experts say, it is illegal for states to simply assign transgender people to prisons based on their birth sex or genitalia.

PREA was hailed as a watershed effort to improve the safety of transgender people behind bars. States that do not comply with the act’s rules risk losing 5 percent of their federal prison funding.

But in practice, the law has not significantly changed the treatment of transgender prisoners, transgender advocates told NBC News.

De La Torre, who worked at the Department of Health and Human Services as the associate director of external affairs under the Obama administration, pointed out that the PREA guidelines list no benchmarks for states to prove that they are placing trans prisoners on a case-by-case basis.

The law “provides a lot of discretion to the facility,” he said.

Governors certify their states’ compliance with the law, and no state has ever failed a PREA audit due to its placement of transgender prisoners, De La Torre said.

Jim Goodwin, a spokesman for the Office of Justice Programs at the Department of Justice, which oversees PREA, said the agency is not tasked with enforcing the law. Rather, he said in a statement that the Justice Department’s job is to support states’ implementation of PREA “and respond to sexual abuse in confinement facilities covered by the PREA standards, as well as promote comprehensive implementation of the standards.”

The Justice Department, however, is responsible for distributing federal prison funds to states, which they theoretically risk losing for noncompliance with PREA. The agency has also trained all of the county’s 997 PREA auditors. If the Justice Department is not enforcing PREA, advocates wonder, then who is?

“This makes me wonder who is PREA serving,” De La Torre said, “and who is being held accountable for the deplorable conditions and sexual violence happening under the federal government's care?”

The Justice Department has also sent mixed signals about transgender rights. In May 2018, the department rolled back an Obama-era policy similar to PREA that intended to protect federal transgender prisoners, confusing some states about their responsibilities under the law. That move came after four cisgender Texas prisoners sued the federal government for incarcerating them with transgender women in 2016.

"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," their lawsuit argued. The case has since been dropped as the plaintiffs have been released.

Miller, of the California Department of Corrections and Rehabilitation, said that while there have been isolated cases of transgender women being moved into women’s prisons and victimizing cisgender women, “It’s not something that is prevalent.”

Amy Miller is the associate director of female offender programs for the California Department of Corrections and Rehabilitation.Brock Stoneham / NBC News

Several states responded to NBC News’ requests with information suggesting they were violating PREA.

Lisa Kinney, director of communications for the Virginia Department of Corrections, for example, reported that the state had one trans woman in custody who had undergone surgery. “As a female she is, of course, housed in a female facility,” Kinney said. The state’s remaining 41 transgender prisoners are all housed according to their sex at birth.

However, PREA aims to prevent sorting trans people based on birth sex and genitalia alone.

Many transgender people who write to the Project for Incarcerated Transgender Survivors at American University say that their prisons refuse to approve transfers without gender-confirmation surgery, according to Whit Washington, the project’s director.

“That's essentially requiring someone to be sterilized before they can go to a certain facility because that's often the result of gender-affirming surgery,” Washington said.

Research shows that just 1 in 4 transgender Americans undergo gender-affirming surgery, a figure that is on the rise as more Americans are able to access health insurance.

Even transgender prisoners who do want surgery behind bars are almost always denied those requests, according to advocates and court records.

Part of the problem may be a lack of understanding of transgender issues. In several states, prison officials appeared to be confused by NBC News’ questions about housing transgender prisoners. David Turner, facilities operations manager for the Vermont Department of Corrections, asked: “What is meant by transgender women? What is meant by transgender men?” and declined to fulfill records requests until a reporter provided an explanation. (He ultimately said the state housed all 14 of its transgender prisoners according to their sex at birth.)

De La Torre believes that prison officials should be required to consult mental health and medical professionals when making decisions about where to house transgender prisoners.

“We see a lot of folks being placed in a facility that might not align with where they feel safest,” he said.

Fighting for safe prison housing

Lindsay Saunders-Velez knew she was a girl from the time she was 4. She grew up in Colorado in what she describes as an abusive home, and at 10 she was moved to a family crisis center, where she said counselors told her that her sense of being female was just childhood trauma.

Over the next several years, Saunders-Velez ran away, attempted suicide and fought to be given hormones. She was often angry and acted out, hitting staff members at the facilities where she was staying. She racked up assault charges, and by the time she was 19, she was confined in Colorado’s Territorial Correctional Facility, a men’s prison.

That’s where she was raped the first time, by a fellow prisoner who came into her cell in December 2017, she said. She reported the assault, but it was found to be unsubstantiated, she said in a subsequent lawsuit against the Colorado Department of Corrections. In the lawsuit, she also alleged that she was harassed by guards, who strip-searched her and refused to refer to her by a female name and pronouns.

Saunders-Velez says she wrote letter after letter to LGBTQ rights groups asking for help. She filed her own case requesting a transfer to a women’s prison. In May 2018, her transfer was denied.

Saunders-Velez said she was subsequently raped two more times. Her story made national headlines, and she feared the media attention would get her killed in prison for being a snitch.

Saunders-Velez said that despite the pressure, she was still determined to speak out.

“I wouldn't want another person to go through the same stuff that I went through, even if it took me dying doing it because it was the thing that I was living [for],” she said. “I'm already in pain. What else can they do to me?”

Saunders-Velez’s second and third alleged assaults were also found to be unsubstantiated, according to her lawsuit. A 2018 Department of Justice report found that just 8 percent of reports of sexual victimization behind bars in 2015 were considered substantiated after an investigation.

In July, however, Colorado settled Saunders-Velez’s lawsuit for $170,000. She was released from prison in October, without ever being moved to a women’s prison.

In response to NBC News’ queries, the Colorado Department of Corrections reported in August that all 163 transgender prisoners in the state were housed according to their birth sex, and the state had never housed a trans person according to their gender identity.

Annie Skinner, a spokeswoman for the agency, told NBC News in an email that Colorado reviews the needs of all transgender prisoners on a case-by-case basis. “The CDOC carefully reviewed the facts and circumstances surrounding Ms. Saunders-Velez’s case and determined that in her case, placement in a female facility was not appropriate at that time,” Skinner said.

Saunders-Velez’s attorney, Paula Greisen, has filed a class-action lawsuit against Colorado on behalf of seven transgender women who say they were denied transfers. Since September, the state has moved three of them to women’s facilities, the first time that has been done in Colorado, Skinner said.

Complaints around the country

Other states have faced similar complaints over the way they incarcerate transgender people. In December 2018, Illinois was forced to transfer Strawberry Hampton, now 28, to a women’s facility after a federal judge found her prison abuse lawsuit credible and ordered the state’s department of corrections to train its staff on transgender sensitivity.

Hampton’s case led to others in the state. In February 2019, Janiah Monroe, 29, a trans woman, filed a lawsuit alleging sexual abuse by Illinois corrections guards and seeking a transfer. Her request was granted a month later; her lawsuit is still pending.

The lawsuit was soon followed by another on behalf of a prisoner at Shawnee Correctional Center in southern Illinois identified as Tay Tay, who said guards ignored her rape and then threatened her when she filed a grievance about it. Her case is pending.

After Monroe was transferred to a women's prison, a female inmate there alleged that she was sexually assaulted by her, and that prison guards covered up the incident, according to a lawsuit the alleged victim filed in February and the Uptown People's Law Center, which represents Monroe. Prison officials found the assault claim against Monroe unsubstantiated, saying the encounter was consensual, according to the Uptown People's Law Center and the lawsuit, which is pending.

In response to NBC News’ questions last year, the state said it housed just one of its 110 transgender prisoners according to their identity.

Lindsey Hess, a spokeswoman for the Illinois Department of Corrections, says the agency works to ensure the safety of trans prisoners. Mental health professionals who work in prisons receive training on how to treat transgender prisoners, and several facilities offer transgender support groups, Hess said.

Illinois will also have to expand health care for transgender prisoners after a group of five trans women won their class-action lawsuit against the state for denying them hormone therapy and female clothing items.

Not all transgender prisoners want to be moved. Many transgender men prefer to be housed with women, because they fear sexual assault in men’s prisons, advocates and prisoners told NBC News. And some transgender women are concerned about facing a lack of acceptance, or even violence, in women’s prisons.

Inmates, many of them transgender women, take part in a class on culture and gender at the men's prison in Chino, Calif.Brock Stoneham / NBC News

But most of the transgender prisoners who spoke to NBC News said they wanted to be transferred to a prison where they would feel safer. In the meantime, some said they felt forced to trade intimacy with fellow prisoners for protection.

Kat Thomas, 68, a trans woman at the Dade Correctional Institution, south of Miami, said that was her situation with her cellmate.

“My situation grows more tenuous every day as trading sex for security can only be a short term solution,” she wrote in an email from prison in July, where she’s serving a sentence until 2036 for burglary, assault, parole violations and disciplinary infractions. “It provides me with no stability or safe environment, just a stop gap measure until I must do something else to ensure my safety and not be victimized.”

In December, Thomas said she had asked her counselor and psychiatrist to be transferred for her safety, but she was not.

Florida’s corrections officials declined to say how they house the state’s 235 transgender prisoners or comment directly on Thomas’ case.

“Inmate population is fluid and identifying exactly where each of those inmates are housed at any one time would require case by case searches,” the Florida Department of Corrections said in a statement.

Next steps in California

Transgender people are more likely to face prison time than the general population, research shows. As of 2015, transgender people were more than twice as likely to live in poverty, according to a report by the National Center for Transgender Equality, and 1 in 5 had participated in the underground economy, which includes sex work.

Calvin, who is serving time in California, began stealing women’s purses and accessories because she couldn’t afford them and didn’t feel comfortable buying them herself.

“I was too afraid to go into the stores and buy my own things because of the backlash from the streets and everybody wasn't a receptive to my lifestyle,” she said.

Last year, talk among Calvin and the other transgender prisoners at the California Institution for Men frequently turned to SB 132, a pending bill that would go one step further than PREA by requiring the state to house transgender prisoners with their preferred gender. It would also require prison staff to use trans people’s preferred names and pronouns. Many of the prisoners have worked on the bill with advocates and are eager to see it pass. The bill passed the Senate in May but has yet to clear the state Assembly.

The California Department of Corrections and Rehabilitation declined to comment on the legislation.

In the meantime, Calvin, who has since been transferred to California Men’s Colony in San Luis Obispo, said she would continue asking to be moved to a women’s prison.

“I am a woman,” Calvin said over the summer. “It's insulting. It's demeaning. It's hurtful because I'm only looked at as a sex object, and my life is more than just sex. It has a meaning and a purpose.”