Transgender Inmates in Prisons
| Date | 01 May 2017 |
| Author | Mary K. Stohr,Craig Hemmens,Douglas Routh,David Makin,Gassan Abess,Jihye Yoo |
| Published date | 01 May 2017 |
| DOI | 10.1177/0306624X15603745 |
| Subject Matter | Articles |
research-article2015
Article
International Journal of
Offender Therapy and
Transgender Inmates
Comparative Criminology
2017, Vol. 61(6) 645 –666
in Prisons: A Review of
© The Author(s) 2015
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Douglas Routh1, Gassan Abess1, David Makin1,
Mary K. Stohr1, Craig Hemmens1, and Jihye Yoo2
Abstract
Transgender inmates provide a conundrum for correctional staff, particularly
when it comes to classification, victimization, and medical and health issues. Using
LexisNexis and WestLaw and state Department of Corrections (DOC) information,
we collected state statutes and DOC policies concerning transgender inmates. We
utilized academic legal research with content analysis to determine whether a statute
or policy addressed issues concerning classification procedures, access to counseling
services, the initiation and continuation of hormone therapy, and sex reassignment
surgery. We found that while more states are providing either statutory or policy
guidelines for transgender inmates, a number of states are lagging behind and there is
a shortage of guidance dealing with the medical issues related to being transgender.
Keywords
PREA, transgender, gender, inmate
Health care for inmates has long been a problematic issue for prison administrators1
(Colopy, 2012; Farmer v. Brennan, 1994; Lloyd, 2005; von Dresner, Underwood,
Suarez, & Franklin, 2013). The need to recognize and treat inmates with mental and
psychological problems has further added to the health care deficits in corrections.
Transgender inmates are particularly vulnerable to both physical and mental health
1Washington State University, Pullman, USA
2University of Southern California, Los Angeles, USA
Corresponding Author:
Craig Hemmens, Department of Criminal Justice and Criminology, Washington State University, Johnson
Tower 701, P.O. Box 644872, Pullman, WA 99164-4872, USA.
Email: Craig.hemmens@wsu.edu
646
International Journal of Offender Therapy and Comparative Criminology 61(6)
care shortcomings in corrections. For example, in Oregon, several transgender inmates,
who were incarcerated at different times, have recently filed lawsuits against the
Oregon Department of Corrections (DOC; Denson, 2014; Willson, 2014). Issues with
classification, housing, and treatment for transgender inmates are posing problems for
the Oregon DOC. Inmates were denied access to medical treatment (i.e., hormone
therapy) and the ability to practice more feminine mannerisms (i.e., dressing as a
woman or shaving their legs). Despite several federal court rulings that gender dys-
phoria and gender identity disorder are legitimate medical issues requiring treatment,
the Oregon DOC failed to address, and ignored, these transgender inmates’ medical
needs. Eventually, one inmate, after several attempts at autocastration and finally
being successful, was finally sent to the Oregon State Hospital for treatment for her
physical injuries and for her gender identity disorder (Willson, 2014).
This case from Oregon illustrates some of the issues that transgender inmates have
historically encountered. Lawsuits alleging the mistreatment of transgender inmates in
corrections have provided some of the impetus for the development of these laws.
Moreover, research emanating from the Prison Rape Elimination Act (PREA) of 2003,
specifically the development of PREA regulations which jails and prisons must adhere
to in their treatment of LBGT (lesbian, gay, bisexual, and transgender) inmates, has
also spurred change. It is from these catalysts that policies created by state corrections
departments regarding the care and treatment of transgender inmates have recently
begun to evolve. Although these are often criticized as being vague, inadequate, or
restrictive (Alexander & Meshelemiah, 2010; Brown & McDuffie, 2009; Tarzwell,
2006), it does appear that state corrections departments are beginning to respond in a
more sophisticated and humane way to the issues of transgender inmates. Since the
filing of lawsuits, the Oregon DOC has created policies addressing the treatment of
transgender inmates (Willson, 2014). The new policies regarding transgender inmates
address issues with inmate classification, housing, and showering units that take gen-
der non-conforming inmates into account when making housing and treatment deci-
sions. As more states start to follow Oregon’s example, transgender inmates can begin
to feel some reprieve from the double impact felt by being transgender in a society and
prison system that does not understand what it means to be transgender and the associ-
ated prison and health care issues.
The purpose of this article is to identify and analyze state statutes and state DOC
policies regarding the classification, interaction with, and treatment of transgender
inmates, specifically those who express feminine characteristics in male prison facili-
ties. A discussion of these issues surrounding transgender inmates, their medical needs
and legal requirements, and compilation of the various approaches to dealing with
transgender inmates should provide policymakers, prison administrators, and scholars
with a better understanding of the current state of affairs. To accomplish this purpose,
we divide our article into four sections:
1. The definition of transgender, as this is paramount to our study;
2. A review of the literature pertaining to issues encountered by transgender indi-
viduals in prison, including court cases filed by transgender inmates and
requirements of PREA;
Routh et al.
647
3. An analysis of the state statutes and state DOC policies addressing the numer-
ous issues that transgender inmates experience in prison, specifically as those
relate to health care; and
4. Policy implications based on our findings.
Defining and Acknowledging Transgender Inmates
The way the legal system has defined transgender inmates in corrections has set the
tone for their care. In the past, their status and needs have received little acknowl-
edgement or attention mainly due to the lack of understanding of the issues they
experience. The criminal justice system has had to reexamine the definition of sex,
gender, and gender identity to determine what legal rights, if any, transgender peo-
ple have and how they should be treated (e.g., see Brooks v. Berg, 2003; Farmer v.
Brennan, 1994; Farmer v. Moritsugu, 1998; Jauk, 2013; Lloyd, 2005; Monro &
Warren, 2004). Transgender inmates have presented a particular conundrum for
correctional officials because one’s gender at birth has been defined based on their
genitalia (von Dresner et al., 2013). This synonymous pairing or interchanging of
the terms and definitions of sex and gender, albeit inappropriate pairing and inter-
changing of terms, has always defined one’s gender in life and in correctional facil-
ities. Essentially, the traditional view of gender is that it is determined based on
one’s genitalia at birth (von Dresner et al., 2013). However, this traditional defini-
tion used for classification by gender is no longer sufficient in contemporary times.
Transgender individuals do not see themselves as the gender they were assigned at
birth. Instead, they wish to become and be treated as the gender they identify with
(Jauk, 2013).
Gender Identity Disorder and Gender Dysphoria and Legal Definition
Quandaries
No matter how a transgender plaintiff argues his or her case, he or she is likely to be
met with harsher criticism by the court, experience a lack of basic legal protections
due to the ambiguity concerning their transgender status, and be dismissed due to his
or her gender nonconformity (Jauk, 2013; Lloyd, 2005; Monro & Warren, 2004). For
instance, Chief Justice Rehnquist opined the term sex under the Civil Rights Act of
1964 was originally defined as, and limited to, either being male or female.
The binary definition of sex is inadequate for describing or classifying transgender
people. The concepts of gender and gender identity can add to the definition and clas-
sification process for legal status and protections while in prison. By adding these
concepts to the definition, it will be possible for classification to be more precise and
to take into account the greater diversity of ways that inmates identity themselves.
Gender is a subjective assessment of an individual based on the expression of traits he
or she exhibits and societal perception of whether that trait fits a normative, or stereo-
typical, attribution of the expressed traits as male (masculine) or female (feminine)
(Lorber, 2011). Transgender individuals’ expression of gendered traits do not match
the social normative expectation of their sex assigned at birth.2 It is because of this
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International Journal of Offender Therapy and Comparative Criminology 61(6)
incongruity that gender and gender identity should be included in classification criteria
and the binary definition of sex is inadequate for classification purposes.
The legal system is now recognizing that the binary definition is inadequate as it
conforms to medical conceptions of gender and its classification. The medical field
draws heavily upon tools developed by psychiatry, specifically the Diagnostic and
Statistical Manual of Mental Disorders (DSM)...
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