Quinn Lefevre

HON Law

Incarcerated transgender Americans are often faced with violations of their constitutional

rights while inside of the U.S. prison system due to neglect that has been sustained and allowed

on a systemic level. This neglect can be identified in intrinsic, precedent-setting legislation that

fails to mention transgender citizens, more contemporary legislation that specifically aims to take

away the human rights of trans Americans, as well as the malign ways our systems work to

exclude this group from rights implicitly afforded to their cisgendered counterparts.

One in six transgender Americans are incarcerated, in the case of transgender people of

color, one in two are incarcerated (2). This phenomenon can be traced back to a larger,

connected pattern of discrimination and violence against not only transgender people, but poor

people and people of color. To fully understand why and how this discrepancy can exist, there

must first be an understanding of “transgender,” what this experience is, and how it relates to

incarceration.

“Transgender” is a word used when referring to someone whose gender identity does not

align with their assigned sex at birth. The condition that causes this, which is recognized in the

DSM-5, is called gender dysphoria. In Anne M Reid’s book, She Said, She Said: Love, Loss and

Living My New Normal, she describes how she views her own experience with dysphoria:

“Dysphoria is that b*tch who visits the family and wreaks havoc. Sometimes she plucks

away, needling and poking, whispering doubts and lies and pulling at the threads of resolve.

Sometimes she is in full-on assault mode, attacking the very core of belief, ego and confidence.

Sometimes she lingers. Sometimes she disappears as rapidly as she appears, but not before she
has darkened things, unsettled all and left a tumultuous mess.” Although not every transgender or

gender nonconforming person experiences dysphoria, when it is experienced, it is often deeply

traumatic.

It is not a coincidence transgender individuals are disproportionately incarcerated. The

cause of this discrepancy begins early; many transgender people end up in situations where they

drop out of school due to harassment that often comes in the form of verbal and physical abuse.

(8) Trans people are also more likely to experience this abuse in public spaces and in the

workplace. This workplace harassment and discrimination can lead to unemployment, and in

turn, homelessness. These homeless, disenfranchised transgender people then end up in shelters

where they continue to be harassed and eventually forced out.

These experiences exclude trans people from the formal economy and lead to the crimes

of survival we often see them incarcerated for: prostitution, drug related crimes, and violent acts

of self defense.(8) The criteria used to place trans people after they commit these crimes is a

significant factor in this disproportionate situation. In governmental facilities, people are placed

based on their genitalia and official documentation as opposed to self identification or

consideration of personal safety.(8)

The weight placed on transgender individuals, both emotionally in the case of dysphoria,

and socioeconomically in the case of systemic oppression, create versions of imprisonment that

manifest both in themselves and the society they inhabit.

Carmen Guerrero, a transgender woman, was placed in a Kern Valley State Prison men’s

unit with inmate Miguel Crespo. Guerrero expressed, in a transfer request prosecutors told her to

fill out, “He (Crespo) stated he is not compatible with me. I’m worried to be raped again.”

Crespo expressed his incompatibility with Guerrero by telling guards that he would kill Guerrero
if placed in a cell with her. Crespo, who had previously attacked a gay prisoner, strangled, and

killed Guerrero within nine hours of being placed in a cell with her.

Makyyla Holland, another transgender woman sentenced to stay in the men’s section of

the Broome County jail, described her six weeks incarcerated as “agonizing” (5). Similar to

Carmen Guerrero, Holland experienced an abuse of her constitutional rights while imprisoned at

Broome County. Holland described being beaten by corrections officers after refusing to take off

her clothes in front of multiple guards. She recounted being forced to shower in front of male

inmates and officers, as well as denied prescription medication, which included hormones and

antidepressants, resulting in painful withdrawals. For what guards claimed to be her own

protection, Holland was placed in “involuntary protective custody,” otherwise known as solitary

confinement, a form of punishment within prisons that has been proven to be detrimental to the

mental health of inmates.

The neglect and violence experienced by Holland and Guerrero is a small piece of

anecdotal evidence representing the abject constitutional violations experienced by transgender

inmates across the United States at the hands of prison officials, guards, and fellow inmates. All

of whom perpetuate a system that was not built, and rarely cares, to accommodate, respect, or

understand transgender citizens. These violations, especially those allowed and inflicted by

guards and officials, is reflective of the dysfunctional, discriminatory foundation and application

of our justice system.

A clause of the Eighth Amendment, ratified in 1791, prohibits what is referred to as

“cruel and unusual punishment.” The definition of “cruel” and “unusual” is something that has

always been debated. Fordham Law Review states that the clause “ensures that the state’s power

to punish is exercised within the bounds of evolving standards of human decency.”(6) This
standard could be considered something defined subjectively, but in this context, it is defined by

the law, and by the people fighting to be afforded this decency. When this clause was first

defined, it only acknowledged the situation of physical torture, or “physically barbarous

treatment.”(6) Whereas more recently, the definition has been changed to include any action

which involves “the unnecessary and wanton infliction of pain.”(6) This excessive infliction of

pain is something indisputably experienced by incarcerated transgender people.

Experiences often had by trans inmates include sexual assault, physical violence, and

verbal harassment. In these situations, guards and officials will place inmates in “protective

custody,” otherwise known as solitary confinement. The federal Prison Rape Elimination Act

(PREA), does not allow confinement against someone’s will for more than 30 days outside the

context of punishment. While in protective custody, inmates also have the right to have access to

the programs, privileges and work opportunities offered by the prison to any extent possible.(5)

However, the reality of protective custody for trans people is frequently different from what

legislators intended.

Just Detention International is a human rights organization dedicated to ending the

sexual abuse often experienced by those incarcerated. A resource they offer includes first hand

accounts from survivors of certain inequities within our prison system; one of those survivors is

a transgender woman named Katrina. The account Katrina offers outlines the sexual extortion

and violence she experienced within the general population of a men’s prison in Arizona and

how it led to being placed in protective custody. After being placed in solitary, another inmate

was brought to join her in her cell. This was an inmate who had a specific “Do Not House” order

because of previous sexual advances he had made towards Katrina. A guard told her that he did

not care when told about the order, refused to call a supervisor when asked, and the inmate was
housed alone with her anyway. She states in her account “This inmate and I were not supposed to

be housed together.” In the following five days, Katrina would be beaten and raped numerous

times, all while guards turned a blind eye. Only when she told the guards she was suicidal did

they remove her from the cell and place her in a Super Max unit where she was locked down

24/7. In her writing, she states, “I was so scared and sick to my stomach and in so much pain that

I couldn’t take it anymore. I wanted to die. I told an officer I was suicidal so I could safely get

out of the cell.”

Katrina’s words describe an experience had by many trans inmates who are told that

being placed in solitary confinement will make them safer. When in reality, solitary confinement

is a traumatic form of punishment, and those placed there, alongside those victimized, have been

found to only continue the abusive cycle, in front of guards carrying out the bare minimums of a

system not built to protect people like Katrina.

Another prevalent issue faced by transgender prisoners is the fight for gender affirming

healthcare. The 8th Amendments prohibition of cruel and unusual punishment extends to

providing the medical care necessary for those imprisoned. Michelle Kosilek, a transgender

woman under the care of the Massachusetts Department of Corrections, believed that MDOC

Commissioner Michael Maloney’s denial of the gender reassignment surgery Kosilek

continuously requested, was a violation of her 8th Amendment rights. Kosilek, determined to

receive the care she believed she had a right to, took on those denying her, beginning with

Kosilek v Maloney (11).

After becoming incarcerated, Michelle Kosilek attempted suicide twice, self-castration

once, and was subsequently diagnosed with “gender identity disorder.” Experts

recommended psychotherapy to prison officials, but were ignored, and by 2002 Kosilek
was at high risk for suicide due to her untreated, severe condition. MDOC Commissioner

Michael Maloney stated that he did not believe gender affirming care was an appropriate

use of taxpayer money, Kosilek filed suit against him and the MDOC in August of 2002.

The court found that Kosilek’s “Gender Identity Disorder” (GID) constituted a serious

medical condition the 8th Amendment would require treatment for, but could not order the

MDOC to provide surgery because Kosilek could not prove Maloney’s “deliberate

indifference”(11) to her medical needs. This decision was appealed, and Judge Mark

Wolf found that Maloney had “repeatedly lied and engaged in a pattern of pretense,

pretext and prevarication”(11) that was meant to disguise the real reason Kosilek was

denied medical care; Maloney’s fear of political discourse and criticism. Judge Wolf

wrote in a 2012 statement for the appeal, “it is despised criminals, like Kosilek, who are

most likely to need the protection of the Eighth Amendment and its enforcement by the

court. Denying adequate medical care because of a fear of controversy or criticism from

politicians, the press, and the public serves no legitimate penological purpose.” The court

ordered the MDOC to provide the surgery doctor’s stated Kosilek was in need of, as it

was “evident that the defendant will continue to violate Kosilek’s Eighth Amendment

rights if a court order is not issued.”(11)

This ruling helped to expand the definition of adequate medical care for prisoners

under the Eighth Amendment; proving that while our definition of gender evolves, so

should our “standards of human decency.”

 (1) Leitsinger, Miranda, “Transgender Prisoners Say They ‘Never Feel Safe.’ Could a

Proposed Law Help?”, KQED, Jan. 8 2020, https://www.kqed.org/news/11794221/could-

changing-how-transgender-inmates-are-housed-make-prison-safer-for-them

(2) “Transgender Incarcerated People in Crisis”, Lambda Legal,

https://www.lambdalegal.org/know-your-rights/article/trans-incarcerated-people

(3) Bohm, Allie - Hodgson, Bobby, “Three Trans Women’s Stories Illustrate a Wider

Problem”, New York Civil Liberties Union, April 5 2022,

https://www.nyclu.org/en/news/three-trans-womens-stories-illustrate-wider-problem

(4) Rozic, “NY State Assembly Bill A7001B”, NY State Senate, May 17 2022,

https://www.nysenate.gov/legislation/bills/2021/a7001/amendment/b?intent=support

(5) “Know Your Rights: Prisoners’ Rights”, American Civil Liberties Union,

https://www.aclu.org/know-your-rights/prisoners-rights#im-experiencing-

discrimination-or-abuse-in-prison-because-im-transgender

(6) Luchs, Marissa, “Transgender Inmates Right To Gender Confirmation Surgery”, Fordham

Law Review, http://fordhamlawreview.org/wp-content/uploads/2021/05/Luchs-

May.pdf
(7) Torruella, Thompson, “Kosilek v. Spencer”, Casetext, Feb 12 2014,

https://casetext.com/case/kosilek-v-spencer-13

(8) https://www.vera.org/news/gender-and-justice-in-america/transgender-people-at-higher-

risk-for-justice-system-involvement

(9) https://dc.suffolk.edu/cgi/viewcontent.cgi?article=1511&context=jtaa-suffolk

“Equal – But Not For Everyone – Protection? Disparate Transgender Rights in Prisons

across the U.S. and the Subsequent Effect on Mental Health” by Cairin M. Fay

(10) https://justdetention.org/story/katrina/?page

(11) https://www.prisonlegalnews.org/news/2014/dec/3/massachusetts-sex-change-
ordered-transgender-prisoner-court-finds-two-doc-commissioners-lied/