Binary Imprisonment: Transgender Inmates Ensnared Within the System and Confined to Assigned Gender

• Publication year: 2016

Binary Imprisonment: Transgender Inmates Ensnared within the System and Confined to Assigned Gender

Danielle Matricardi

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Comment

Binary Imprisonment: Transgender Inmates Ensnared within the System and Confined to Assigned Gender^†

I. Introduction

It is June 26, 2015. The sun is shining, and the grass is wet with morning dew. Those unaware sip their coffee on the way to work, perplexed why so many rainbow flags clutter their morning commute. Celebrations are breaking out across the Nation. The United States Supreme Court has legalized same-sex marriage.¹ Finally, the day has come when people who identify as lesbian, gay, bisexual, or transgender (LGBTQ) are given the same rights as their heterosexual brothers and sisters. If only there was any truth to such idealism. To the contrary,

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there are still debilitating injustices against members of the LGBTQ community that must be acknowledged and rectified.

The same day the Supreme Court reaches its seminal decision in Obergefell v. Hodges,² Ashley Diamond, an African-American, transgender woman, sits afraid and alone in a Georgia prison. Once again, Ms. Diamond is being tormented, threatened, and terrorized by her fellow inmates. Tormented, threatened, and terrorized all because Ms. Diamond had the courage to report that she had been sexually assaulted. While incarcerated, she has been repeatedly sexually abused, raped, and exploited.³

Flash forward to August 4, 2015. Prison officials place Ms. Diamond in solitary confinement for her own protection.⁴ While the confinement may momentarily give her refuge from physical attacks, it cannot protect Ms. Diamond from herself. She suffers from post-traumatic stress disorder, stemming from repeated sexual and verbal attacks, as well as the mental and physical manifestations of gender dysphoria.⁵ She states:

I am locked down in a solitary cell for 24 hours a day, without access to light, exercise, or running water. Twenty-four hours a day I battle a debilitating and agonizing desire to end my life, because being forced to change my gender and live as male makes me feel like I am already dead.⁶

This Comment examines the oppressive and discriminatory treatment of transgender inmates within the criminal justice system. Part II provides a background on societal and medical conceptions of transgender women and men. In particular, it discusses how pervasive discrimination coerces transgender women and men into incarceration, addresses the highly debated classification of gender dysphoria as a mental illness, and introduces the prevailing medical standards of care for inmates with

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gender dysphoria. Part III of this Comment presents how most transgender inmates seek redress for constitutional violations. Part IV analyzes the constitutional dimensions of Eighth Amendment⁷ claims for the failure to provide medically necessary care. Part V scrutinizes the dangerous conditions of confinement in which transgender inmates are exposed and the Prison Rape Elimination Act.⁸ Finally, Part VI concludes by providing alternative policy suggestions and legal arguments to ensure the protection and treatment of transgender inmates.

II. History and Background

A. Defining "Transgender"

The entire world noticed when Olympic Athlete Caitlyn Jenner glamorously debuted her transition on the cover of Vanity Fair.⁹ Public opinion ranged on all parts of the spectrum—from pride and acceptance, to hatred and disgust.¹⁰ The majority of the public's reaction on social media comments, Facebook posts, and Tweets, although different, had one common thread—ignorance. Ignorance could be too harsh a word for some, but it is most certainly deserving for others. Most people have a preconceived notion of what it means to be transgender. However, such pre-conceptualized notions ostracize and marginalize transgender persons within society and, thus, within the law.¹¹

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The American Psychological Association defines "transgender" as a catch-all term used "for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth."¹² Gender expression is how people outwardly manifest or communicate their gender identity to others.¹³ This can be through clothing, behavior, mannerisms, or voice.¹⁴ Although people often create an ambiguous exchange of the terms "gender identity" and "sexual orientation," the two are not interlinked. Specifically, gender identity "refers to an individual's identification as male, female, or, occasionally, some category other than male or female."¹⁵

On the other hand, sexual orientation refers to an immutable emotional, romantic, or physical attraction to another person.¹⁶ Accordingly, just like cisgender¹⁷ women and men, transgender women and men may be androphilic,¹⁸ gynephilic,¹⁹ bisexual, or asexual.²⁰ Cisgender is an adjective that refers to people who fit within the natal gender binary; in other words, people are cisgender if their gender identity corresponds with the gender to which they are assigned at birth.²¹ The term cisgender is preferable to the more frequently used term "gender-normative" because it strays away from essentialist ideals designating some gender identities as "normal" and others "abnormal." This anti-essentialism nomenclature reinforces the fact that there is no normal gender—one is either cisgender or transgender.

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B. Society's Pervasive Discrimination Coerces Transgender Women and Men into Incarceration

Ashley Diamond, the African-American, transgender woman referenced above, was a mere fifteen years old when she was kicked out of her childhood home for being transgender.²² Afterwards, she struggled to find an employer who was willing to hire a trans teenager. In a recent NPR interview, Ms. Diamond ruminated on discrimination she faced while applying for a job at McDonald's: "When they asked me for my Social Security card and my ID, she looked down at it and said, 'Oh this must be a mistake.'"²³ Ms. Diamond assured the McDonald's employee that there was no mistake, to which the woman replied, "'Oh, I'm absolutely sorry. We don't do that here.' She said 'That. Here.'"²⁴ Ms. Diamond's arduous job search continued but was persistently plagued by rejection after rejection. As a last resort, she began stealing to survive. Consequently, she was arrested multiple times on theft and burglary charges.²⁵

In 2011, Ms. Diamond was sentenced to an eleven year term of imprisonment.²⁶ She explained to NPR that she accepts full responsibility for her crimes, stating: "I'm very sorry for the people I've hurt," and that she only began stealing because she "needed the money to survive."²⁷ Ms. Diamond's story is just one example of transgender women and men struggling to survive in today's gender-binary driven society.

In 2008, the National Center for Transgender Equality and the National Gay and Lesbian Task Force conducted a study focusing on the discrimination that transgender and gender-nonconforming people are confronted with in every facet of life—housing, education, employment, healthcare, and the criminal justice system. The organizations published their findings in the 2011 National Transgender Discrimination Survey.²⁸ The survey revealed the overwhelming impact that anti-

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transgender bias and stigma has on transgender persons across the nation.²⁹ Sixty-three percent of the transgender and gender-noncon-forming participants reported they had suffered a serious act of discrimination—acts that have a grave impact on one's quality of life, physical and emotional stability, and capacity to financially support themselves.³⁰ The discriminatory events included, but are not limited to, the following: lost job due to bias; eviction due to bias; sexual assault due to bias; homelessness because of gender identity and expression; denial of medical care due to bias; and lastly, incarceration due to gender identity and expression.³¹

Many legal theorists use intersectionality as a tool to effectively analyze and address human rights violations.³² Intersectionality is "the examination of race, sex, class, national origin, and sexual orientation" and how specific identities overlap to make certain persons more vulnerable to discrimination.³³ Intersectionality serves as a guide to move away from a single, essentialist focus—for example, gender-only or race-only—towards anti-essentialist approaches—which instead individualize the analysis.³⁴ Accordingly, one of the most important findings of the National Transgender Discrimination Survey was "the combination of anti-transgender bias and persistent, structural and individual[ized] racism [which] was especially devastating for Black transgender people and other people of color."³⁵

First, while transgender people of all races were nearly four times more likely than the general population to earn an annual income of less

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than $10,000, Black transgender individuals were eight times more likely.³⁶ Second, a startling forty-one percent of Black and thirty-three percent of American Indian persons experienced homelessness, compared to fourteen percent of White respondents.³⁷ Third, exactly twenty-three percent of Latino/a and twenty-one percent of Black transgender people were refused medical care due to anti-transgender bias, in contrast to nineteen percent overall.³⁸ One of the respondents stated:

Denial of health care by doctors is the most pressing problem for me. Finding doctors that will treat, will prescribe, and will even look at you like a human being rather than a thing has been problematic. [I] [h]ave been denied care by doctors and major hospitals so much that I now use only urgent care physician assistants, and I never reveal my gender history.³⁹

The survey's overwhelming correlation between transgender persons who experienced disparaging life events and transgender persons who have been incarcerated cannot be overlooked...