Revisions to Transgender Offender Manual Puts Transgender Inmates at Risk

Jan 31st, 2019

By: Julia Brady, Prison Rape Elimination Act Coordinator/Analyst

Transgender prisoners face extremely high rates of sexual violence both in the community and behind bars.  According to a 2011-12 survey done by the Bureau of Justice Statistics, 39.9% of adult transgender inmates in federal prison reported being sexually victimized in the past 12 months.[1] As sexual assault in an underreported crime, this horrific number most likely does not show the true rate of sexual violence members of the transgender community face in detention.

Written into the Prison Rape Elimination Act are specific standards aimed at protecting vulnerable populations, including transgender prisoners, from sexual abuse while incarcerated. One such provision, standard 115.42 Use of Screening Information, addresses the placement of transgender inmates in male vs. female facilities:  

115.42(c): “In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates…, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”[2]

115.42(e): “A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.”[3]

In a move that many national advocacy organizations are saying will weaken these protections, the US Federal Bureau of Prisons (BOP) released controversial changes to the Transgender Offender Manual on May 11, 2018.  The manual was first released on January 18, 2017, and its original purpose was to protect transgender prisoners in BOP facilities.[4]

Notably, the revisions include changes to the language around housing transgender people.  In the previous version of the manual, the BOP’s Transgender Executive Council would “recommend housing by gender identity when appropriate.”  According to the updated manual, housing a transgender inmate in a facility that matches their gender identity would now “only be appropriate in rare cases,” and that “the Transgender Executive Council will use biological sex as the initial determination for designation.”[5]

In June, the Southern Poverty Law Center (SPLC) and Lambda Legal submitted a Freedom of Information Act request, “for all documents and communications related to changes to the Transgender Offender Manual.”[6]  The Department of Justice and the BOP failed to provide the requested records, and in response the SPLC and Lambda Legal sued.  Using this lawsuit, David Dinielli, the deputy legal director of the SPLC hopes “to uncover what the BOP considered when amending its housing policy, including whether the changes reflect merely its own biases and/or those of an outside, anti-LGBT group.” [7]

Maryland is home to one BOP facility, Federal Correctional Institution – Cumberland.  The Maryland Coalition Against Sexual Assault stands with all survivors, especially those most vulnerable to sexual abuse.  On June 19, 2018, MCASA signed on to a letter, drafted by the ACLU, calling for the BOP to reverse the changes to the Transgender Offender Manual.  The letter firmly argues that these revisions violate the Prison Rape Elimination Act and expose transgender people who are incarcerated to an increased risk of sexual violence, which is unacceptable.  MCASA will continue to advocate for the rights of transgender survivors of sexual violence both in the community and behind bars.  

[1] Allen J. Beck et al, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12”, Bureau of Justice Statistics, May 2013.

[2] 28 C.F.R. § 115.42 (c)

[3] 28 C.F.R. § 115.42 (e)

[4] Moreau, Julie. “Bureau of Prisons rolls back Obama-era transgender inmate protections.” NBC News, May 14, 2018. 

[5]Transgender Offender Manual, US Department of Justice, Federal Bureau of Prisons. May 11, 2018.

[6] Southern Poverty Law Center, SPLC seeks documents detailing rollback of protections for transgender people in prison. June 26, 2018.

[7] Southern Poverty Law Center, SPLC sues Trump administration for records detailing rollback of protections for transgender people in prison. November 20, 2018.

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