Integration

Historically, and most often in the modern era, LGBT people are housed in prisons for men and women in ways that align with the sex they were assigned at birth and, to a greater or lesser degree, qualify as integrated into these populations (Brown & McDuffie, 2009). Based on an inventory and assessment of the policies, practices, and judicial decisions related to housing assignments for transgender people locked up in jails, prisons, and other detention facilities, Sumner and Jenness (2014, p. 242) conclude, “this ‘genitalia-based’ approach to classification and attendant housing assignments is so deeply ingrained that it is not usually documented in prison operational policies in general and transgender-related correctional policies specifically.” However, this taken-for-granted state of affairs has been contested. As a result, some jails, prisons, and immigration detention facilities are, at least at the level of policy, embracing a “gender identity” based approach to classification and attendant housing decisions.

As a result, they can—and do—interact with non-LGBT prisoners in ways that challenge their safety and well-being. They do so in the context of a stratification order that situates them at or near the bottom of the prison hierarchy and as objects of derision, often expressed through language, sex, and violence. In Australia, a transgender woman in prison is regarded as “a woman, a convenience, a cat, a poof, a thing, [and] an idiot” who is forced into a role of sexual subordination to other prisoners (Wilson et al., 2017, p. 388). As one prisoner in New South Wales reported, “They see you’re a ‘trannie’ and as far as they’re concerned, it’s their right” (Wilson et al., 2017, p. 388). Donaldson’s early work on U.S. prisons popularized the concept that gay, bisexual, transgender, and other gender nonconforming prisoners are coerced into subordinate positions within prison hierarchies. “The very bottom of the structure” is reserved for prisoners forced to comply with their positioning “usually through rape or convincing threat of rape,” causing sexual and gender minorities to navigate integrated prisons under a fear of violence (Donaldson, 2001, p. 119).

Gay male prisoners who are seen as “women” and transgender women prisoners report entering into protective partnerships, often with the hope that such arrangements involve the promise of protection from other—presumably more threatening—prisoners (Gear & Ngubeni, 2002; Oparah, 2012). A nuanced understanding of “protective pairing” —an institutionally derived coercive practice that involves “willingly” engaging in sexual exchanges with an inmate in an effort to avoid being harmed by other inmates” (Oparah, 2012) —reveals the presence of a range of types of unwanted sexual activity and recognizes that consent in prison is a problematic concept (Jones & Pratt, 2008; see also Jenness et al., 2019).

A White transgender woman who had been doing time “off and on since the late 1980s” and who reported considerable mental health problems both inside and outside prison explained that she does her time this way:

Have you heard of protective pairing? It’s preferable. I wouldn’t stay in a relationship to avoid that [sexual assault] happening. It’s more of a benefit. I don’t feel like I need a partner to be safe. Safety is just a side-benefit, ya know. I prefer to be in a relationship. It makes my time easier. It’s way better than being alone. The majority of the time I’ve been locked up, I’ve found a relationship to keep me safe. People will stay away from you if they respect your partner.

(Jenness et al., 2019, p. 622)

As Jenness et al. (2019) explain, this and other types of relationships with (presumably) heterosexual men often results in violence, sexual, and otherwise.

Feminist analyses emphasize that sexual violence against gay men and transgender women in prison is used to enforce patriarchal hierarchies and heterosexism, especially in integrated carceral settings. In her work on the history of modern American sexuality in the context of prisons, Kunzel (2008, p. 8) argues that “much of what is at stake in the anxiety over homosexuality in prison concerned its potential to reveal heterosexual identity as fragile, unstable, and itself situational.” Jenness et al. (2019) explain that the sexual victimization transgender women experience in prison is contextualized by asymmetrical power relations that are recognizably gendered. It is, simply put, violence perpetrated by men and experienced by women in an institutional environment in which masculinity is valorized and femininity is regularly subordinated (for more along these lines, see Jenness & Fenstermaker, 2014, 2016). As Mogul, Ritchie, and Whitlock (2011, pp. 96–97) succinctly put it, “in an effort to bolster heterosexuality and stamp out homosexuality prisons have become locations of magnified policing and punishment of sexual and gender nonconformity.”

Segregation

Although housing LGBT prisoners in facilities that align to their sex assigned at birth and in a way that integrates them into populations of non-LGBT prisoners is the most common housing arrangement in the United States and around the globe, it is not the only modality to constitute the living environment for LGBT people behind bars. In contrast, some LGBT people are locked up in carceral settings that are “segregationist” in one way or another. This approach takes many forms. In 2010, Italy proposed converting an unused medium-security prison near Florence into a prison that would exclusively house transgender women (“Italy ‘to open first prison,’” 2010). A move to an exclusively transgender prison would represent an evolution of the country’s already segregationist approach: transgender women are often housed within protective units inside prisons for men (Vitelli, Hochdorn, Faleiros, & Valerio, 2018).

Separate LGBT protective units within a sex-segregated facility are a form of segregation in prisons worldwide. Thailand, for example, segregates some of its more than 6,000 reported LGBT prisoners into protective units (Associated Press, 2017). Within Thailand’s Pattaya Remand Prison (PRP), 5% of the population has been identified as LGBT through intake questions about sexual orientation and gender identity, as well as genital inspection. At the end of this screening process, transgender women who have undergone gender affirmation surgery are integrated with the women’s general population (Yongcharoenchai, 2016). Lesbians, however, are assigned to a segregated unit, while gay and bisexual men and transgender women who have not undergone gender affirmation surgery are assigned to a second segregated unit (Yongcharoenchai, 2016). As a rationale for segregating LGBT prisoners, prison authorities cite prison safety, sexually transmitted infection (STI) prevention within general populations, and sex prohibition. A prison staff member in PRP explains:

As we do with male inmates, we separate those who behave more feminine from other male inmates when they sleep. Since we have nobody stopping people from having sex, I don’t want to give them the opportunity to engage in sexual stuff.

(Yongcharoenchai, 2016)

In addition, as previously proposed in Italy, Thailand intends to expand its segregation policy by building a prison exclusively for LGBT prisoners (Beresford, 2017).

Prison officials determine whether prisoners are LGBT for the purposes of segregation in a variety of ways, including the prisoner’s self-identification, screenings by medical professionals or other staff, or outside consultation (Petersen, Stephens, Dickey, & Lewis, 1996, p. 222). Genital-based approaches are inadequate, because they exclude a majority of transgender people who have not had gender affirmation surgery and because they cannot detect sexual orientation. Conversely, self-identification is criticized for its potential for prisoner abuse, as well as the risks associated with identifying as LGBT in the carceral context (i.e., susceptibility to violence). Some facilities have employed multifaceted approaches to identifying transgender prisoners that draw from a multidisciplinary team comprised of prison staff, medical personnel, advocates, and/or outside experts (Blight, 2000). In Western Australia, for example, Blight (2000) found that transgender women were partially segregated, and prison officials considered multiple criteria for identifying transgender prisoners, such as “family background,” “development of sexual identity,” “recent lifestyle,” “medical story with particular reference to hormonal and/or interventions,” “gender identity preference,” and genitals. A reassessment of Australian prison policy impacting transgender people in 2017 revealed that protocols vary greatly across the country, and in Western Australia, transgender prisoners continue to be segregated “until a placement decision is made in accordance” with prison rules (Lynch & Bartels, 2018).

In the United States, a handful of facilities also segregate transgender and gay prisoners. The Los Angeles County Jail, for example, houses transgender women and gay men in a separate unit: K6G. The Los Angeles County Jail has been recognized as unique in its approach to identifying detainees to be placed in K6G, insofar as they utilize a screening process (presumably) based on gay and transgender culture (Dolovich, 2011). Prisoners who identify themselves as gay or as transgender women are questioned about their experiences “coming out” to their families and about gay and transgender terminology (Dolovich, 2011). Facilities similar to K6G have operated in Los Angeles since 1985, when they replaced models of transgender and gay segregation that lacked access to “basic entitlements,” such as “vocational and educational programming, visitation, medical and mental health care” (Dolovich, 2011, p. 21). Previous models posed security risks for transgender and gay prisoners, “making its residents vulnerable to attack” (Dolovich, 2011, p. 21).

Dolovich (2011) documented the effects of segregating transgender and gay prisoners in the context of Los Angeles County Jail’s segregated K6G unit. In this setting, the author observed that nearly all K6G residents felt safe from sexual assault and other violence. Notably, 2 of the 31 detainees expressed feeling both “safe and unsafe” and one interviewee revealed feeling “pressure” from other inmates to conform to presenting as either male or female, though they were not “entirely comfortable” in either one of these binary gender identities (Dolovich, 2011, pp. 44–45). In their words, enforcement of the gender binary resulted in having to “constantly monitor myself in my actions” (Dolovich, 2011, p. 45). Another detainee reported feeling unsafe because of KG6 staff, whom he viewed as threatening because of their use of excessive force against another K6G prisoner (Dolovich, 2011, p. 45). Compared with the reported experiences of interacting with the general population, however, the study concluded that prisoners felt “safer” in segregation (Dolovich, 2011, p. 6). As expressed by a K6G prisoner: “I won’t have to worry about, you know, when I’m taking a shower, to watch my back. In the general population, […y]ou have to watch your back all the time.” (Dolovich, 2011, p. 45).

As legal protections for prisoners have developed in the United States and internationally, prisons and other lock-up facilities have increasingly instituted segregationist policies for LGBT prisoners and attendant practices on the grounds that they provide protective environments for gender nonconforming prisoners. Homan (2015, p. 2) found that U.S. Immigration and Customs Enforcement (ICE) instituted a formal policy for identifying and housing transgender people in ICE custody, acknowledging that a person “may be at an elevated risk in a detention setting because of his or her actual or perceived gender identity and/or gender expression.” ICE staff screen individuals’ gender identity by asking whether a person is transgender or “identifies with a gender different from that which corresponds with his or her biological sex” (Homan, 2015, p. 2). ICE placement policies of transgender people prioritize facilities that have a designated protective custody unit for transgender people (Homan, 2015, p. 4).

Scholars raise a number of legal and critical issues related to the segregation of LGBT people in correctional facilities. Robinson (2011) argued that strategic segregation violates detainees’ and prisoners’ privacy and other rights when they are forced to “come out” to be placed in protective custody. The process of screening and segregating gay and transgender prisoners could also render prisoners vulnerable to violence, including those who are not gay or transgender, gay and transgender people who have not come out, or those who do not qualify within K6G’s limited perceptions of who is gay or transgender, such as gay and transgender people of color (Robinson, 2011). Robinson (2011, p. 1313) concluded that “the [Los Angeles County] Jail’s screening policy constructs gay and transgender identity in a narrow, stereotypical fashion and excludes some of the most vulnerable inmates.” Howarth (1985), conversely, argued for judicial scrutiny on the procedural and substantive processes of LGBT protective custody, challenging compulsory segregation on the grounds that prisoners should be legally entitled to choice, fair placement hearings, and, when appropriate, segregationist conditions equal to those in the general population.

Isolation

A 2019 lawsuit in the United States claims that Candice Crowder, a Black bisexual transgender woman in a prison for men, experienced “extreme abuse, trauma, discrimination, and retaliation” at the hands of other prisoners and prison staff (Crowder v. Diaz, 2019, p. 1). In her lawsuit, she recounts staff beating her when she reported feeling unsafe being housed with a prisoner known to be transphobic (Crowder v. Diaz, 2019). After being transferred to a different facility, another prisoner repeatedly raped her, and staff ignored her requests for an official report, investigation, and medical examination. Instead, they placed her in solitary confinement for nine months. Crowder’s lawsuit characterizes this nine-month placement in isolation as “retaliatory” and details on staff’s comments after she was physically assaulted reveal their attitudes towards her:

Ms. Crowder’s ex-boyfriend violently assaulted her with a box cutter in the dining hall. . . . Following this incident, Ms. Crowder was blamed for the assault. According to correctional staff, it was her fault for choosing to live a transgender “lifestyle.” She was “asking for it.” Ms. Crowder reported this misconduct to no avail, catalyzing an escalating campaign of retaliation and leaving her with no other choice but to seek relief from litigation.

(Crowder v. Diaz, 2019)

In another high profile detention, the United States denied requests by the United Nations (UN) Special Rapporteur on Torture to privately interview Chelsea Manning, an army intelligence analyst and transgender woman who was detained for leaking classified military materials (Mendez, 2012, pp. 74–75). For 11 months, Manning was isolated in her cell for 23 hours a day and ordered to sleep naked while she awaited trial (Mendez, 2012, pp. 74–75; “The Abuse of Private Manning,” 2011). The United States claimed that she was placed in solitary confinement for protective purposes. In a UN report, however, the UN torture expert determined that Manning’s isolation violated her right to “physical and psychological integrity” and emphasized that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions” (Mendez, 2012, pp. 74–75). When she was sentenced at trial, a U.S. judge reduced Manning’s prison term because her “more rigorous than necessary” pre-trial conditions were “excessive in relation to legitimate government interests” (United States v. Manning, 2018). Before her sentence was ultimately commuted, Manning petitioned for transgender-inclusive healthcare and was returned to solitary confinement as a disciplinary measure for attempting suicide (Savage, 2016).

Cases such as these have elevated an ongoing public debate on solitary confinement and conditions of incarceration for transgender and other gender nonconforming prisoners around the world. Solitary confinement, also called administrative or disciplinary segregation, can involve isolation for up to 24 hours a day and substantially limit or eliminate essential elements from prisoners’ daily routines, including “recreation, hygiene, work, and diet” (Howarth, 1985, pp.14–15). From the mid-19^th century onward, prison studies concluded that the sensory and social deprivation of isolation adversely impacts prisoners (Cormier & Williams, 1966; Walters, Callaghan, & Newman, 1963; see also Haney, 2003). When Volkart (1983) compared isolated and non-isolated prisoners in Switzerland, he identified that prisoners in isolation more frequently exhibited symptoms of anxiety and other psychological disorders. Studying French prisons, Barte (1989) found that long-term isolation could even result in schizophrenia.

As Meyer et al. (2017) analyzed in U.S. prisons, LGBT prisoners are more frequently placed in isolation and more often exhibit symptoms of poor mental health, and the U.S. Bureau of Justice Statistics found that LGB prisoners are isolated more often than nearly any other group (Beck, 2014). Similar findings of differential use of isolation for LGBT prisoners, as well as the links between psychological distress and isolation, apply in other detention facilities, such as jails and immigrant detention facilities (Beck, 2014; Depoy, 2012). For these reasons, practices of solitary confinement for LGBT prisoners and other detainees are under increasing international scrutiny.

International Forces at Work: LGBT Prisoners and Human Rights

In 1994, nearly 50 years after the founding of the UN, a committee that monitors compliance with international human rights law heard a complaint brought by Australian gay activist Nicholas Toonen (Toonen v. Australia, 1994). Toonen argued the Australian state of Tasmania’s criminalization of same-sex sexual activity violated his rights to privacy and freedom from discrimination under Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), a major UN human rights treaty (Toonen v. Australia, 1994). The UN committee found in his favor and ruled that same-sex sexual activity criminalization violates international human rights law (Toonen v. Australia, 1994). This was a historic ruling for LGBT people subjected to prison sentences for their suspected or actual sexual orientation.

In the modern moment, numerous provisions of UN treaties, human rights affirmations, and international law are formally recognized to guard against the criminalization of LGBT people and mistreatment of LGBT prisoners. An influential body of human rights provisions, the International Bill of Rights, encompasses treaties binding to many UN member states. To this end, the ICCPR and the International Covenant on Economic, Social and Cultural Rights contain human rights protections that secure the rights to life, privacy, and expression; freedoms from discrimination, arbitrary detention, and torture; and other economic, cultural, procedural, and personal safeguards that protect LGBT people from unlawful detention and inhumane prison conditions.

UN international human rights law monitoring and enforcement mechanisms actively address LGBT prisoners. A central body, the Human Rights Council, has overseen compliance to human rights and reported on violations since its establishment in 2006. One instrument it employs to assess human rights is the Universal Periodic Review (UPR), which reviews UN member country every four years. Since the first cycle UPR in 2008, the imprisonment of LGBT people has been recorded in numerous countries’ reports.

In 2011, these human rights violations culminated in a report by the UN High Commissioner for Human Rights that identified discriminatory laws, practices, and violence related to sexual orientation in UN member countries. The report states:

Seventy-six countries retain laws that are used to criminalize people on the basis of sexual orientation or gender identity. Such laws, including so-called “sodomy laws,” are often relics of colonial-era legislation. They typically prohibit either certain types of sexual activity or any intimacy or sexual activity between persons of the same sex. In some cases, the wording used refers to vague and undefined concepts, such as “crimes against the order of nature” or “morality,” or “debauchery.” What these laws have in common is their use to harass and prosecute individuals because of their actual or perceived sexuality or gender identity. Penalties range from short-term to life imprisonment, and even the death penalty.

(UN General Assembly, 2011)

The report also pointed to “arbitrary arrests and detention . . . not directly related to sexual conduct, such as those pertaining to physical appearance or so-called ‘public scandal,’” which related to criminalization of minority gender identities and expressions (UN General Assembly, 2011). In his recommendations, the High Commissioner called all member states to “repeal laws used to criminalize individuals on grounds of homosexuality” (UN General Assembly, 2011, p. 25).

UN awareness of LGBT criminalization and vulnerability to state violence led to the creation of an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity in 2016. Coincidentally, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment released a report condemning the status quo of prison conditions for LGBT people:

Violence against lesbian, gay, bisexual, transgender and intersex persons is exacerbated in situations of deprivation of liberty. Such persons often experience serious discrimination, even before arrest, as arbitrary detention may occur as the result of homophobic or transphobic bias. . . . With very few exceptions, State officers are not trained to understand the needs of lesbian, gay, bisexual, transgender and intersex persons and there are no institutional policies and methods to adequately address self-identification, classification, risk assessment and placement. That results in violence against such persons and a lack of access to necessary resources and services, such as physical and mental care.

(UNCAT, 2016)

Calls to Abolish the Prison

Beyond the repeal of laws criminalizing LGBT people and reform of conditions that put LGBT prisoners at risk of violence and deny them access to adequate healthcare, each of which are increasingly identifiable as human rights violations, there is a robust movement that calls for prison abolition. Transgender and other queer prison abolitionists in the United States trace their heritage from abolitionists of slavery and the radical beginnings of the LGBT movement and call for abolition of the prison industrial complex (PIC). In a forward for Captive Genders, CeCe McDonald, a Black bisexual transgender activist who was previously incarcerated writes:

Like slavery, there is no other way around the violence of the PIC, so we have to destroy it. We can’t hold onto these powerful institutions that oppress people and expect that they will go away just because we reform them. Of course, change is good, but in instances of systematic oppression like prisons, there is no way for it to be reformed. That’s just like saying we can reform racism—there’s no “better” form of racism—you have to abolish it.

(Stanley & Smith, 2015)

As McDonald put it, transgender women of color and “millions of other people . . . get caught up in this system that evolved from the slave trade and is still maintained through racism, imperialism, patriarchy, and every other form of hierarchy” (Stanley & Smith, 2015). Because all forms of oppression are interrelated, prison abolition directly impacts incarcerated and non-incarcerated LGBT people alike.

By abolishing the PIC, queer and transgender prison abolitionists seek to advance LGBT decriminalization and liberation that sparked the beginnings of the movement. Founded in 2002 by transgender activist, scholar, and abolitionist Dean Spade, the Sylvia Rivera Law Project provides legal representation for transgender, intersex, and gender nonconforming prisoners, and advocates for an abolitionist vision of prison justice. Placing queer injustices in the context of broader systemic forces that, in effect, disproportionately impact communities of color and poor people, Spade calls for the dismantling of queer oppression through abolition. Spade (2012, 190) argues for the insufficiency of prison reform in light of the “central role of racialized gender violence” in contemporary legal systems. In 2014, Spade joined the plethora of activists advocating the end of solitary confinement for LGBT prisoners by proposing government invention to alleviate structural drivers of LGBT incarceration (Hanssens, Moodie-Mills, Ritchie, Spade, & Vaid, 2014).

At the same time, so-called “reformist” advocates have called for improvement in housing assignments for LGBT prisoners, especially transgender women, that are based on self-identification and/or for housing this group in a separate wing or unit (as is done in Los Angeles and Santa Ana jails). The expectation is that this will lead to increased physical safety and the protection of mental health, a hypothesis that needs to be systematically tested (but see Dolovich, 2011). Recent work, however, complicates this issue. The Sylvia Rivera Law Project (2007) and Emmer, Lowe, and Marshall (2011) found that the respondents in the studies were not in agreement regarding housing preferences. Some felt it was better to manage prison life while in segregation most of the day; others prefer to be housed in the general population. Related, Jenness et al. (2011, 2019) found that the majority of transgender women in California’s prisons for men would prefer to be housed in facilities for men.