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Paxton Stolper
ENG 125
Assignment 3
11/1/20
LGBTQ+ People and the Prison System

The United States incarcerates more of its own citizens than any other country in the

world (Marksamer and Harper 2014: 2). It houses almost a quarter of the world’s prison

population. The incarceration rate for self-identified lesbian, gay, and bisexual people is more

than three times that of the U.S. adult population (Samhsa’s Gains Center). Members of the

LGBTQ+ community are three times more likely to be sexually assaulted in prison (Marksamer

and Harper 2014: 3). The 2015 U.S. Transgender Survey, a study of nearly 28,000 transgender

adults, showed patterns of frequent harassment, profiling, and abuse by law enforcement officers

and high rates of incarceration (National Center for Transgender Equality 2018: 5). Sexual

minorities are more likely to experience solitary confinement and report psychological distress

when incarcerated (National Center for Transgender Equality 2018: 14). Given the States vast

experience in incarceration, one would assume that its prison system has figured out an effective

way to house, rehabilitate, and treat LGBTQ+ persons. This is not the case.

Prison is not a pleasant place for anyone, nor is it meant to be, but for gender

nonconforming persons the experience is substantially worse. The normal strain of prison

coupled with forms of discrimination and harassment often leads to constant fear and

traumatization. There are two main challenges for them in facing the criminal justice system, one

being discrimination in legal proceedings that leaves LGBTQ+ people more likely to serve

longer sentences. The other is the inhumane and unfair treatment that puts inmates at risk of both

physical and sexual assault, coupled with its inept facilities (Caizza 2016). In addition to that,

within the criminal justice system the primary entities causing this harassment are either the law
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enforcement offices and/or within the construct of the prison system (Nadal and Kristin 2013). I

will argue that the U.S. prison system perpetuates homophobia and transphobia in their disregard

for the rights and needs of the LGBTQ+ community. While no one can contest some efforts have

been made thus far, you cannot ignore the fact that the system is far behind where it should be.

Steps that should have been taken years ago are now finally being implemented to secure the

safety and rights of prisoners. Those include special guidelines for how to conduct intake and

classification of inmates in order to avoid the possible degradation and inappropriate treatment

experienced in previous years, as well as defining the need for medical and psychological care

for several LGBTQ+ specific concerns when incarcerated. But above all, steps should be taken to

keep inmates safe and right all the wrongs done thus far.

“Do you think that establishing a ward for Gay, Transgender is really important for a

prison system and jail system?” The inmates answers rang through the all but empty dormitory:

“absolutely” and “it’s critical”. This was the introductory question from KCETSoCalConnected

reporter Val Zavala when interviewing five members of LA County’s K6G unit, which houses

roughly 400 GBT (gay, bisexual, transgender) inmates (Zavala 2014). An example of a prison

system stepping up, LA County is attempting to ensure the safety and wellbeing of their GBT

offenders. The interview took place in the open dormitory surrounding one of the bunk beds

where the inmates live. Inmate Dino Raglioni spoke to Ms. Zavala about how “We don't have to

worry about being attacked in the middle of the night because we're different or people are afraid

of us.” This violence is one concern and a rampant problem that occurs when LGBTQ+ persons

are housed with the general population. Another concern is privacy. Inmate Nicolas Steward left

the group to take Ms. Zavala on a solo tour of their ward and to the restroom facilities. Ms.

Zavala, appalled, stared at two silver steel toilets less than 5 feet away from a bunk bed. In
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response, she pointed out that “the rarest of all commodities is privacy.” Switching focus to a

one-on-one interview, Ms. Zavala and Nicolas discussed the issue of inmate violence. He

attributes the separation from the “mainline unit’ or general population to the lesser amount of

violence in the GBT ward. He tells Ms. Zavala that they are “living by a different code”, citing

how in the general population, race normally plays a large role in who they associate with, but in

the GBT unit that is not even a factor. The interview then pivoted to Deputy Javier Machado in

the corridor right outside the dormitory. Ms. Zavala told the viewers that he is the one who asks

the questions before one can be admitted to the K6G unit. He gave Ms. Zavala examples of what

he might ask an inmate such as, “Do you visit any gay bars of clubs?” If yes, he probed further,

asking perhaps “What is the cover charge? How many floors does this place have?” Inmate

Stephen Stevens said many of the questions were irrelevant, but “It's knowledge that only

someone in the community would be familiar with.” This is something that is important in order

to keep the integrity and safety of K6G in place, known as part of the intake or classification

process. Changing course, the interview then centered on what takes place within the unit

concerning the spread of sexual diseases. While having sex in prison is a crime, Officer Machado

is not ambivalent to the fact that it could happen. Nicolas Steward says most of the time it's

“consensual,” but for public safety the jail distributes condoms, as AIDS and HIV positive

people do live in the unit. Ms. Zavala notes to the viewers that “separate housing reduces the

incidences of rape dramatically” compared to if they lived in conjunction with the main

population, which is one of the biggest concerns for LGBTQ+ inmates. Ms. Zavala then

interviewed ACLU’s (American Civil Liberties Union) Melissa Goodman in her Southern

California office who disclosed how they brought a lawsuit against LA County which helped

mandate better conditions for GBT inmates. Goodman says, “I think there's still a lot of work to
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be done”, but the ACLU’s efforts are not in vain as great progress has been made through the

legal system to protect LGBTQ+ rights. The interview ends on somewhat of a sour note with Ms.

Zavala saying, “Gay and transgender inmates are much more likely to reoffend after they leave”,

due to less reform programs on the outside to help them find their way. The

KCETSoCalConnected interview gave an unobstructed view into one prison system which is

attempting all the right steps to secure the rights of LGBTQ+ prisoners.

As you can see from the LA County K6G ward, there are many considerations needed in

order to challenge the discrimination the system has perpetuated thus far. The first step to ensure

this is to take the fight directly to the legal system. First using legal words from the past,

arguments for prisoners rights have been backed by the 8th Amendment, which prohibits cruel

and unusual punishment (Brockmann, Chaill, Levengood, and Wang 2019: 15). That is used in

conjunction with the Equal Protections clause of the 14th Amendment, which prohibits

discriminatory treatment based on gender (which can be translated to transgender status and

gender nonconformity(Brockmann, Chaill, Levengood, and Wang 2019: 15).

In 1944 the U.S. Supreme Court first established prisoners’ right to be free from sexual

abuse by other inmates in Farmer v. Brennan (Schweikart 2019: 11). The case centered around

Dee Farmer, a transexual serving time in an all-male federal prison for credit card fraud. Farmer

was born a biological male but underwent treatment for silicone breast implants, estrogen

therapy, and an unsuccessful black-market surgery to have his testicles removed. Upon his

incarceration the prison medical personnel diagnosed Farmer as a transesxual and housed him

away from the general population due to misconduct and safety concerns. Later Farmer was

transferred to a Maximum-Security Penitentiary in Terre Haute, Indiana and placed with the

general population in accordance with prison policy. Less than two week after the transfer
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Farmer was beaten and raped by another inmate. She reported the incident and several days later

was placed in segregated housing. Following the report Farmer filed a Bivens complaint, which

is a civil rights lawsuit for monetary damages against federal officials (Dee 1944). She justified

her claim by citing what transpired as a violation of the Cruel and Unusual Punishment Clause of

the Eighth Amendment (Ruth 1944 : 2). The initial claim escalated to a motion in the United

States District Court of the Western District of Wisconsin, where the court held that there could

be ‘deliberate indifference’ to Farmers safety only if the prison officials had actual knowledge of

potential danger (Ruth 1944 : 2). The United States Seventh Circuit Court of Appeals examined

the District Courts decision determining that prison rape was not constitutionally tolerable. In

addition to the fact that prison officials could be liable for failure to prevent harm under the

Eighth Amendment. The court made a point to acknowledge the constrictions that prison

officials are under in these cases, but emphasized that they have a duty to protect inmates from

harm at the hands of other inmates (Ruth 1944 : 2). Farmer's case eventually rose to the Supreme

Court of the United States which addressed the question “Is Farmer entitled to damages or an

injunction against various federal prison officials responsible for transferring her to, or assigning

Farmer within, a prison facility where Farmer was sexually assaulted by another inmate?”

(Farmer v. Brennan Oyez). The Supreme Court declined Farmer’s bid to adopt an objective test

for deliberate indifference, ruling that in Farmers case prison officials cannot be held liable under

the Eighth Amendment for denying Farmer humane conditions. The final ruling deemed that a

prison official violated the Eighth Amendment only if it met two requirements, the first being the

inmates alleged incarceral deprivation must be objetlity serious enough to pose the threat of harm

(Ruth 1944 : 3). The second is to violate the Cruel and Unusual Punishment clause of the Eighth

Amendment a prison official must have a state of mind that is of deliberate indifference for the
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inmates safety (Ruth 1944 : 3). Although this case might not have been a direct victory for

Farmer, it began a very important discussion about the application of the Eighth Amendment for

LGBTQ+ rights. And this case directly translated to the LGBTQ+ prisoners who, because of that

status alone, fell into the risk category. This victory was the catalyst for several lawsuits within

the state’s court of appeals for housing, medical needs like hormone replacement therapy,

treatment of gender dysphoria, and several other cases.

In 2003, a unanimous vote in Congress passed the Prison Rape Elimination Act (PREA)

which outlined a number of requirements in line with “the analysis of the incidence and effects

of prison rape in Federal, State, and local institutions and to provide information, resources,

recommendations and funding to protect individuals from prison rape.” (Prison Rape Elimination

Act) It was officially approved and instituted in 2012, and used as a blanket protectorate for

LGBTQ+ people in all states (Oberholzer 2017). In addition, inmates in a few states have been

able use the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, both of

which prohibit discrimination against people with disabilities, including gender dysphoria.

However, all this legislation in protection of the LGBTQ+ community can only go so far

(National Center for Transgender Equality 2018: 11). The Prison Litigation Reform Act (PLRA)

of 1955 stands in the way of LGBTQ+ prisoners as it makes it difficult to sue the federal court

for any wrongdoing or failure to uphold the laws meant to protect them (National Center for

Transgender Equality 2018: 11). It requires all prisoners to “exhaust” all administrative avenues

before they can take any legal action, meaning that one has to go through the prison's formal

grievance process, all possible court appeals, and other hurdles before they can take the case to a

higher power. Although many strides have been made through government channels to back the
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LGBTQ+ community in prisons, this is only one piece of the puzzle. The next step is to translate

these laws to actual changes within the prison walls.

The standard for the conditions and treatment of LGBTQ+ inmates within the prison

system begins with the first point of contact, the intake process. For a facility this is the optimum

time to identify inmates' vulnerabilities and minimize their risk before the next steps. In order to

conduct a constructive risk assessment, staff must try to establish an LGBTQ+ status or

perceived status of an inmate. They must not force ‘coming-out’, but identifying inmates’ gender

and sexual identity is one way they can help ensure the inmates’ safety as well as their medical

and housing needs. This assessment is the first barrier between a gender nonconforming persons

and inevitable fear and harassment they would suffer from if not given the opportunity to identify

themselves or seek out proper accommodations. When placed among the general population, it’s

noted that LGB inmates are 7-10 times more likely to report having been the victim of sexual

assault by another inmate than heterosexual inmates (Brockmann, Chaill, Levengood, and Wang

2019: 59). The next preventative step is the interview process. PREA guidelines now require

every prison to ask questions that attempt to collect information on sexual orientation and/or

gender identity (Brockmann, Chaill, Levengood, and Wang 2019: 39). This is in effort to

decrease the prisoners risks and also to find out their feelings of vulnerability, which could lead

to a conversation about sexual orientation. With every facility comes different processes and

different accommodations they are able to offer LGBTQ+ inmates, however each facility must

follow the overarching guidelines of the PREA. While standards for these questions are now in

place and enforced, before there was no obvious opportunity for prisoners to identify themselves.

And even if there was, it was not an environment where they felt if they did it would benefit

them in any way; it would only harm them. Today we must assume, or be hopeful that, between
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the arrest and the preliminary incarceral process a gender non-conforming individual has not

been harassed, sexually assaulted, or discriminated against by a law enforcement officer.

After the intake process has been completed, a prisoner's next step is classification and

housing placement. In the past blanket policies had LGBTQ+ inmates being housed with a

gender they didn't identify as, putting them in a position of vulnerability where sexual assault

and the fear of being attacked loom every day. While problems like that are still imminent today,

the new policies force prisons to pay closer attention to their placement procedures. At one time,

facilities would respond immediately to inmate vulnerability by placing them in protective

custody, which is really solitary confinement. The truth of the matter is that LGBTQ+ offenders

are more likely to be placed in solitary confinement than any other prisoner, which essentially is

having them be punished for being potential victims. In this scenario the inmate would stay in a

cell for 22-24 hours a day, unable to participate in classes, services, recreation, employment, and

are more likely to resort to self-harm (Marksamer and Harper 2014: 35). These “segregation

units'' should never have been a prison's first reaction, but their last resort. To avoid this, prisons

should conduct individualized assessments. The PREA now requires them make case-by-case

decisions that prioritize specifically the safety of transgender prisoners above all else. Facilities

have a legal responsibility to not be indifferent to the risk of harm to its inmates. This rule makes

transgender persons a priority because they must get a sense of which gender would be

appropriate for them to live with. The American Medical Association weighed in on this topic in

support of transgender people’s ability to be placed in facilities that reflect their gender status if

they choose and must not be housed in facilities as a form of administrative segregation

(Marksamer and Harper 2014: 55). This is contingent upon what housing options are offered at

the prisons as well as factors such as gender identity, chargers, prisoners view regarding
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placement, length of stay, institutional history, medical and mental health impact, and other

security needs.

But the responsibilities of facilities don’t stop there. After placement. intergroup

management is the next step in keeping inmates safe. In the case of transgender inmates, the

shower and bathroom structures in prison can lead to embarrassment and fear. It’s important for

facilities to protect their basic privacy and dignity by placing transgender inmates in the correct

gender housing with proper facilities, or another alternative. In addition, transgender persons

must be supervised by the appropriate gender; no cross-gender supervision is allowed, which

must be factored into the facility’s considerations. Another issue of concern regards pat downs

and strip searches of inmates. Strip searches are humiliating and unpleasant for any prisoner, but

transgender inmates are in an even more defenseless position. PREA standards make it clear that

there will be no cross-gender searches (National Center for Transgender Equality 2018: 10). It

prohibits strip searches of transgender prisoners to determine genital status, and no male staff

may search female prisoners (Marksamer and Harper 2014: 44). Before, these policies were

weak or even nonexistent, leading to vulnerable situations where searches could lead to sexually

harassment and violation. It’s suggested that the best way to combat this is to allow a transgender

inmate to make staff aware of what they would be comfortable with. But one of the biggest

concerns of transgender inmates is that information about their transgender status or sexual

orientation will be outed. Privacy is a huge concern when it comes to transgender inmates within

the prisons, but for any LGBTQ+ inmate the concern about safety is always looming.

The final portion of an LGBTQ+ prisoner’s experience that needs to be addressed is

regarding healthcare. In the community it has been documented that subgroups within prisons

face many mental health disparities. Some studies show higher rates of mental health burden
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among LGB populations compared to heterosexuals, including depression, anxiety, and

suicidality (Brockmann, Chaill, Levengood, and Wang 2019: 51). These statistics are something

that the facilities should be cognizant of when they receive new inmates. Not only that but the

prevalence of STDs, specifically HIV; The Bureau of Justice Statistics reports that 1.5% of

prisoners in the U.S. are living with HIV, a rate four times that of the general population

(Brockmann, Chaill, Levengood, and Wang 2019: 55). In addition, Hepatitis C is a worry in

prisons because of the sharing of needles by drug users within, and other STDs such as Syphilis

and Human Papilloma Virus. All these should be of concern, and even more so with same-sex

and sexual orientation-based housing in prisons. Although same-sex sexual assault does take

place, consensual sex does as well, which is a complex issue for prisons to deal with. According

to the PREA, they do not prohibit consensual sexual activity and do not allow punishment

invoking the PREA for the activity (Brockmann, Chaill, Levengood, and Wang 2019: 64).

Therefore, there have been instances where prisons have distributed condoms to inmates to

mitigate the chances of STD spread. For transgender inmates, having medical access is at many

times imperative. Medications that they were taking prior to incarceration cannot be interrupted

without a physician's approval. Treatments for gender dysphoria, hormone therapy, and other

necessary medical treatment must be available. In previous years facilities would do nothing;

however, this should not happen. The widespread misconceptions about transgender healthcare

needs being “cosmetic” or “elective” are misinformed. Medical experts agree that

transition-related treatments for transgender people are safe, effective, and for many, medically

necessary (Marksamer and Harper 2014: 55). The access to proper medical care for not only

transgender but all LGBTQ+ prisoners is something that is necessary, and not up to any prison's

discretion.
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A history of bias, abuse, and profiling toward LGBTQ people by law enforcement, along

with high rates of poverty, homelessness, and discrimination in schools and the workplace, has

contributed to disproportionate contacts with the justice system, leading to higher levels of

incarceration (National Center for Transgender Equality 2018: 5). Due to the statistics that have

been laid out of how common LGBTQ+ individuals have contact with the criminal justice

system, it is long past time for them to be treated the way they should be. The system has long

perpetuated transphobia and homophobia, and needs to adopt progressive ways of thinking that

exist outside the prison walls. The prison system must not be discriminatory. Every person in

prison has the right to feel safe and protected while they are serving their time. Luckily there

have been vast strides so that incarceral life is much better than it was a few years ago, but that

doesn’t mean violence and abuse doesn't happen. People on the outside must continue to fight for

those people’s rights within. The prison system in America must be held accountable, and luckily

there are people out there doing exactly that.

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