Chapter 12: Criminal Justice and Corrections

• Author: Ally Windsor Howell
• Pages: 173-190

The concerns for transgender persons in the criminal justice system primar-

ily relate to their treatment in jails and prisons. There are two concerns:

safety and health care. These will be addressed separately.

§12.1 Safety of Transgender Inmates

Inmates have a constitutional right to adequate housing.

1

When dealing with

male-to-female transgender inmates, however, the determination of what is

adequate is often a problem. The issue is not that transgender inmates are

or should be entitled to any kind of special housing, rather it is whether

they will be housed with male or female inmates. This situation was rec-

ognized by the U.S. Supreme Court, which held that prison ofcials who

were involved in transferring a female transsexual prisoner to a maximum

security facility in which she was allegedly raped and assaulted by other

prisoners could be held liable if it were proven that they had shown delib-

erate indifference to the transsexual prisoner’s safety, in violation of her

1. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).

173

Criminal Justice and

Corrections

CHAPTER 12

ABAPub Howell Transgender Final Pass.indd 173 8/23/13 9:47 AM

Eighth Amendment rights.

2

In Farmer v. Brennan,

3

the Court found that

the transgender inmate was safer in administrative segregation, but did not

address whether that was proper or not.4

Jails and prisons also have a duty under the Eighth Amendment to the

U.S. Constitution to provide for their inmates’ safety.5 This duty includes

protecting inmates from rape, sexual assault, and battery by other inmates

and by staff.6

The biggest problem with prison rape and violence is the indifference of

too many who are in control of the prisons. Massachusetts Department of

Correction spokesman Anthony Carnevales said, “Well, that’s prison ... I

don’t know what to tell you.” In that offhand remark, he was expressing

what many feel in their hearts but are loathe to admit — “they deserve it.”

7

Prison rape and t violence are issues of control and domination. This

is illustrated by the statement of a Minnesota inmate before the Congres-

sional committee considering the enacted Prison Rape Elimination Act

of 20038 (PREA). “Most of the prisoners who rape are spending 5 to life.

And are a part of a gang. They look for a smaller, weaker individual. And

make that person into a homosexual then sell him to other inmates of

gangs. Anywhere from a pack of cigarettes to 2 cartons... No one cares

about you or anyone else.”9 A New York inmate related the following to

the Committee. “When a man nally gets his victim, he protects him from

everyone else, buys him anything, the victim washes his clothes, his cell,

etc. In return, the entire prison knows that this guy has a ‘BITCH’ or ‘girl.’

2. Id.

3. Id.

4. The issue was not raised. The question presented to the Supreme Court was: “Does

the ‘deliberate indifference’ standard adopted in City of Canton, Ohio v. Harris, 489 U.S. 378

(1989), govern Eighth Amendment claims regarding failure to protect prisoners from assault?”,

Petitioner’s Brief, at i. 1993 WL 625980.

5. Farmer v. Brennan, supra note 1.

6. Farmer v. Brennan, 511 U.S. 825, at 833–834.

7. Testimony of Pat Nolan before the U.S. House of Representatives Committee on the

Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, 04/29/2003, p. 92,

hearing on the Prison Rape Reduction Act of 2003.

8. 42 U.S.C. § 15601, et seq.

9. Inmates Testimony to Human Rights Watch presented to the U.S. House of Representa-

tives Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security,

04/29/2003, p. 20, hearing on the Prison Rape Elimination Act of 2003.

TRA NSGENDER PER SONS AND TH E LAW174

ABAPub Howell Transgender Final Pass.indd 174 8/23/13 9:47 AM