AUSTIN — New federal guidance aimed at reducing prison rapes says states can no longer make housing decisions for transgender inmates based solely on sex, but Texas officials insist this won’t change how they treat the state’s more than 250 transgender prisoners.
Inmates who are transgender (identify as a gender different from their sex at birth) and intersex (born with neither typical male or female anatomy) face a higher risk of being raped or sexually assaulted while incarcerated. In an effort to reduce targeted assaults of non-heterosexual prisoners, the U.S. Department of Justice released new guidance last week that clarified how prisons and jails must house and transgender and intersex inmates.
Previous federal policy under the “Prison Rape Elimination Act,” or PREA, required prisons and jails to take into “serious consideration” an inmate’s housing preference, and said they had to consider “on a case-by-case basis” whether to house a prisoner separately in order to protect them from harm.
But the new guidance added states that claim to follow the rules, but then break with them in practice, will risk being deemed non-compliant.
“Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units, or programs based solely on their external genital anatomy violates the standard,” the PREA rules state.
Some criminal justice advocates applauded the new rules. Lovisa Stannow, executive director of the Los Angeles-based Just Detention International, said the rules “if adopted meaningfully, will go a long way toward ensuring the basic dignity of transgender people behind bars.”
Others said the guidance simply clarified rules that are already in place, which states routinely ignore in practice.
“This is not a new policy. This language was in the PREA policy forever,” said Flor Bermudez, Detention Project Director at the Transgender Law Center. “If PREA were effective, every single facility that houses people by their genitals would be in violation.”
In Texas, the new guidance won’t bring any change anyway, prison officials said.
When asked whether the Texas Department of Criminal Justice would need to alter its housing policy after the issuance of the new guidance, spokesman Jason Clark said no.
“Each offender within TDCJ is classified and assigned to housing based upon their individual safety, security and treatment needs,” Clark said. “If it’s determined that an offender cannot be safely placed in general population, the inmate may be housed individually or be placed in safekeeping at a unit that matches their physical anatomy.”
Texas has struggled in recent years with housing non-heterosexual inmates. Prisoners can request to be housed separately if they think they’re in danger, but those requests aren’t always granted.
Passion Star, a transgender woman serving 20 years for aggravated kidnapping, sued the state in 2014 to force officials to house her separately after she said she was repeatedly raped and attacked by male inmates. Her face is permanently scarred after a gang attacked her with knives.
The state eventually acquiesced, but there is no guarantee she will remain in separate housing for the duration of her sentence, which is up in 2022. She continues to sue the state for damages and to ensure that her housing status remains unchanged.
PREA requires that all jails and prisons be audited to ensure they meet federal standards. TDCJ operates at least 90 of the 109 jails and prisons in Texas, of which 56 have been audited as of March, Clark said.
There are 257 transgender inmates in TDCJ prisons, according to the agency.