LGBT People in Prison: Management Strategies, Human Rights Violations, and Political Mobilization
Abstract and Keywords
In the 21st century, an unprecedented rise in the visibility of and social acceptance for lesbian, gay, bisexual, and transgender (LGBT) people has been accompanied by exponential growth in scholarship on LGBT people generally and their experiences in diverse communities and institutional contexts in the United States and around the globe. A growing body of literature draws on first-person accounts, qualitative analyses, and statistical assessments to understand how and why LGBT people end up in prisons and other types of lock-up facilities, as well as how they experience being imprisoned and the collateral consequences of those experiences.
Scholarship in this body of work focuses on (a) the range of abuses inflicted on LGBT prisoners by other prisoners and state officials alike, including mistreatment now widely recognized as human rights violations; (b) the variety of ways LGBT people are managed by prison officials, in the first instance whether their housing arrangements in prison are integrationist, segregationist, and/or some combination of both, including the temporary and permanent isolation of LGBT prisoners; and (c) the range of types of political mobilization that expose the status quo as unacceptable, define, and document the treatment of LGBT people behind bars as human rights violations, demand change, and advocate new policies and practices related to the carceral state’s treatment of LGBT people in the United States and across the globe.
The study of LGBT people in prisons and other detention facilities is compatible with larger calls for the inclusion of sexual orientation, gender identity, and gender expression in criminology and criminal justice research by advancing theoretical and empirical understandings of LGBT populations as they interact with the criminal justice system, and by incorporating this knowledge into broader criminological conversations.
The Landmark Case of Dee Farmer
In 1989, Dee Farmer, a transgender woman, was repeatedly beaten, raped, and got infected with HIV when she was imprisoned in a prison for men in Terre Haute, Indiana, in the United States (Farmer v. Brennan, 1994). After reporting the assault, Farmer filed a complaint against the prison for exposing her to an elevated risk of violence as a transgender woman with “feminine characteristics” in the men’s general population (Farmer v. Brennan, 1994). Decided in the U.S. Supreme Court, the case set the country’s precedent that “deliberate indifference” to a substantial risk of sexual assault or other harm violates U.S. constitutional law against cruel and unusual punishment when prisons do not provide reasonable protection against these harms (Farmer v. Brennan, 1994, p. 828). According to the Court, “a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious and disregards that risk by failing to take reasonable measures to abate it” (Farmer v. Brennan, 1994, p. 837). This decision marked the first time the U.S. Supreme Court directly ruled on prison rape: it was telling the case involved an African-American transgender woman in a prison for men (Jenness, Sexton, & Sumner, 2019).
The Farmer case was decided in an historical moment in which discussions of gender nonconforming people behind bars were increasingly visible in journalistic, academic, and legal writings. Donaldson (2001) vividly described prisoners’ distinctions among “jockers, punks, queens, booty-bandits, Daddies, and Men and identified a group of “queens” as “effeminate homosexuals.” According to Donaldson (2001, p. 6),
In jails, many are street transvestites charged with prostitution. They seek and are assigned the role of females and are referred to exclusively with feminine pronouns and terms. They have “pussies,” not “assholes,” and wear “blouses,” not shirts. They are always sexually passive and are unlikely to make up more than 1 or 2 percent of prison populations. They are highly desirable as sexual partners because of their willingness to adopt “feminine” traits, and they are highly visible, but the queens remain submissive to the “Men” and, in accordance with prevailing sexism, may not hold positions of overt power in the prisoner social structure. They are often scapegoated, involved in prostitution, and viewed with contempt by the Men and by the staff. As a result, they are frequently assigned to the most undesirable jobs, kept under closest surveillance by guards, and harassed by homophobic keepers and kept alike.
This account, which was originally published in 1993, is part of a litany of portrayals—however accurate or not—that shocked the conscience; stimulated academic, policy, and public discussion; raised concerns about the vulnerability of gender nonconforming prisoners; and underscored the need for systematic research on the plight of gay, bisexual, and transgender people in jails, prisons, and other types of lock-up facilities.
The Proliferation of Research on Violence Against LGBT Prisoners in the United States and Beyond
Following the publication of Donaldson’s now classic work, a growing body of research makes it clear that gender nonconforming prisoners, especially gay and bisexual men and transgender women, are exceptionally vulnerable to violence. Documentation of sexual assault in U.S. correctional settings by outside researchers began as early as 1966 with interviews of 3,304 male Philadelphia jail inmates and 500 staff members. Davis (1968) discovered that 4.7% of those detained reported being sexual assaulted while in custody, but posited that this number was merely the “tip of the iceberg,” in light of reporting issues associated with stigma and disclosure of sexual assault. Prevalence studies continued in the 1970s, when scholars investigated who is more likely to be sexually victimized: Wooden and Parker (1982, p. 18) found that 52% of their sample of 200 California prisoners were pressured into sex and 14% were sexually assaulted; among the latter group, 41% of the gay men, 2% of the bisexual men, and only 9% heterosexual men reported being sexually assaulted. Qualitative research by Chonco (1989) and Smith and Batiuk (1989) described men who are incarcerated who display feminine qualities as being among those typically targeted for rape. Through the lens of sexual assault influencing prisoner behavior, Smith and Batiuk (1989, p. 37) theorized that more than the occurrence of sexual assault, it is this “fear of victimization which ultimately shapes and colors inmate interaction.” These and other studies of sex and sexual and gender minorities in prison raised larger questions about gay, bisexual, and transgender prisoners’ human rights. (Historically, researchers have encountered resistance to data collection on violence against LGBT people in prisons. Sexual assault has been historically underreported by prison authorities; as a result, new reports revealing its pervasiveness have generated crises in prison policy.)
In the 2010s, for example, Meyer et al. (2017, p. 237) analyzed the data derived from the National Inmate Survey administered by the U.S. Bureau of Justice Statistic and found a consistent pattern in the United States: “Among men, sexual minorities (both gay or bisexual men and MSM [men who have sex with men]) had a much higher risk than did straight men of being sexually victimized by staff and other inmates in both jail and prison. . . . Among women, the patterns were similar, with sexual minority women showing a greater risk of sexual assault.” These and other statistics reveal that sexual minorities—“non-heterosexuals,” to use the vernacular of the U.S. Bureau of Justice Statistics—are both overrepresented among incarcerated populations and at exceptionally high risk of sexual assault while in the custody of the state (CAP–MAP, 2016). As the National Center for Transgender Equality (NCTE, 2012) observed: “Sexual abuse is rampant in prison and detention facilities today, and lesbian, gay, bisexual, transgender and gender nonconforming people are among those most at risk.”
Transgender prisoners are particularly vulnerable. A path-breaking report, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons,” draws on interviews with prisoners in New York to conclude that: “Verbal harassment, physical abuse, and sexual assault and coercion create an exceptionally dangerous climate for transgender, gender nonconforming, and intersex people in prison” (Sylvia Rivera Law Project, 2007, p. 26). Glaysa, a transgender woman imprisoned in a maximum security men’s prison in upstate New York, reported:
I have faced violence where I have been beaten and raped because of my being a transgender with female breasts and feminine (sic). I have been burned out of a cell block & dorm because I wouldn’t give an inmate sex. I have been slapped, punched, and even threatened because of my being a transgender that told another inmate “No” when they told me they wanted sex from me or my commissary buy. I have been harassed verbally and have had others grab my female breasts and ass because they knew I was transgender and figured they can get away with such actions—which they do most of the time due to the fact no one cares what happens to us transgenders inside. I’ve been subjected to all kinds of verbal harassment from “look at that inmate scumbag transgender” all the way to threats and sexual harassment physically as well as verbally.
(Sylvia Rivera Law Project, 2007, p. 25)
Eight years later, another advocacy group, Black & Pink, released a report that draws on data from a survey of 1,118 prisoners across the United States to reveal an increasingly uncontested fact: compared to other prisoners, “a higher percentage of transgender women prisoners experience sexual violence” (Lydon, Carrington, Low, Miller, & Yazdy, 2015, p. 44).
The findings on sexual victimization from the Bureau of Justice Statistics’ Inmate Survey for 2011–2012 were so stark with regard to transgender prisoners that supplemental tables were published as an addendum to the initial report (Beck, 2014). These data reveal that approximately one-third of transgender prisoners reported sexual victimization by another prisoner within the past year—a figure that dwarfs the 4% general prevalence rate for incarcerated populations. Likewise, research in California reveals that transgender women in prisons for men are exceptionally vulnerable to unwanted sex. Sexual assault was 13 times more prevalent among transgender women in prisons for men than among a random sample of prisoners (Jenness, 2010; Jenness, Maxson, Matsuda, & Sumner, 2007; Jenness, Sexton, & Sumner, 2019). Jenness et al. (2007) claimed that 59% of transgender prisoners reported being sexually assaulted while incarcerated, while slightly more than 4% of 322 randomly selected prisoners in 6 California state prisons for men reported being sexually assaulted. Jenness, Sexton, and Sumner (2011, 2019) corroborated these findings and found that the prevalence rate for sexual assault of transgender prisoners was 58.5% during their incarceration history in California correctional facilities.
Disproportionate violence, sexual or otherwise, against gender nonconforming prisoners is a global phenomenon that is increasingly rendered visible by and within public discourse (Gear, 2007). In South Africa, for example, Gear (2007) found that homophobia has contributed to a conflation of rape behind bars with consensual sex between members of the same sex, leading to public hysteria about gay sex in prisons. Also, male prisoners who are perceived to be effeminate are identified as gay and viewed as “easy” targets for sexual exploitation by other prisoners and prison staff (Gear & Ngubeni, 2002, p. 56; see also Gear, 2007). The author further contextualizes the erasure of prison rape within a legal system that does not censure same-sex rape, but has historically criminalized homosexuality. As scholars and activists in Asia, Europe, Latin America, and other parts of the world have emphasized, the experience and impact of violence against gender nonconforming prisoners takes shape in the context of prison management policies and practices worldwide.
Context Matters: Integration, Segregation, and Isolation in Prison
The kinds of victimization reported by LGBT prisoners and documented in a growing number of official and unofficial reports occur in diverse institutional contexts, including jails, prisons, and immigration facilities, and is shaped by various facility management strategies.
Whether LGBT prisoners are integrated, segregated, or isolated while locked up shapes their experiences in prison, including their vulnerability to violence. Taking housing assignments as a proxy for the type of social and organizational ecology in which prisoners endure “the pains of imprisonment” (Sykes, 1958, who also sees that the pains of imprisonment are born of the deprivation of liberty, the deprivation of goods and services of choice, the imposition of a rule-bound regime, and other universal characteristics of carceral environments), one of the most pressing concerns for prison administrators and LGBT advocates alike is best stated as a question: Where should LGBT prisoners be housed while locked up? This question has inspired human rights inquiries and become the impetus for policy reforms aimed at keeping LGBT people safe(r) behind bars.
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.”
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.
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.
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-19th 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.
Context Matters: Human Rights Violations and Imprisonment for Being LGBT
The range of abuses LGBT prisoners experience is also contextualized by, and thus intimately connected to, the social and legal contexts in which prisons and other detention facilities exist: heteronormative cultural and legal systems that have, throughout history, condemned and, in many cases, criminalized non-normative sexual orientations and gender identities (Kunzel, 2008; Mogul et al., 2011). In 2015, for instance, a college student in Tunisia was detained for breaking a sodomy law that criminalized consensual same-sex sexual relations. The police extracted a confession from the student by threatening, “We’re going to rape and brutalize you and make you sit on a glass Fanta Bottle” (Mzalouat, 2016). Subsequently, he was forced to undergo an anal examination that was, presumably, equipped to verify whether he engaged in anal sex. “Failing” this test, he was sentenced to 12 months in prison (Mzalouat, 2016). In the same year, at least six more men were arrested, submitted to similar examinations, and sentenced to imprisonment (Samti, 2015).
Countries throughout the world criminalize and imprison LGBT people under “blasphemy,” “buggery,” “sodomy,” or “unnatural acts” laws instituted during colonization (Muntarbhorn, 2017, p. 16). Such laws punish consensual same-sex sexual relations in private or expressions of LGBT identities or relationships in public, such as same-sex flirting, conduct deemed a sexual advance, and displays of affection; nonconforming gender expressions; and the distribution of material with LGBT content. The International Lesbian, Gay, Bisexual, Trans and Intersex Association recorded that, in 2017, 72 countries, or 37% of UN member states criminalized private consensual same-sex sexual activity among adults (Carroll & Mendos, 2017).
A trend toward adopting laws criminalizing gender nonconforming expression in the Middle East, North Africa, and Eastern Europe has given license to renewed violence against LGBT people. In 2013, Russia passed a law widely known as the “Gay Propaganda Law,” which prohibits “promotion of non-traditional sexual relations” to children, and later prosecuted a minor for posting on the Internet a photo of two men holding hands (Barnes, 2018; Carroll & Mendos, 2017). Since the enactment of this law, reported hate crimes against LGBT people have doubled in Russia, nearby countries have introduced similar bills to their parliaments, and Chechnya began detaining and torturing gay men in detention centers in 2017 (“Chechnya LGBT,” 2019; Litvinova, 2017). In Algeria, where both same-sex sexual activity and LGBT expression is punishable by up to two years in prison, a local LGBT advocacy organization reports that those “sentenced to prison for homosexuality are predominantly men” (TransHomoDZ, 2016). In at least one prison, men identified as gay or bisexual are segregated in a small unit for up to 24 hours a day, where they are targeted for harassment and violence by prisoners and staff (TransHomoDZ, 2016).
Prisons throughout the world have also historically denied gender-specific access to healthcare for transgender prisoners, especially transgender women in prisons for men. In a sample of 64 jurisdictions in Australia, Canada, Denmark, England, Finland, Germany, Ireland, Sweden, Switzerland, and the United States in 1996, only 29 reported continuing hormone therapy for transgender prisoners who had started treatment prior to coming to prison, 26 decided on a case-by-case basis, and nine discontinued hormone therapy for transgender prisoners in all cases (Petersen et al., 1996). This variability is not uncommon and is perilous in light of the fact that the sudden cessation of transgender hormone treatment can have serious negative health effects (Sevelius & Jenness, 2017). Conversely, transgender healthcare interventions, especially those that qualify as gender-affirming care, have been found to have positive impacts on well-being (Kendig, Cubitt, Moss, & Sevelius, 2019; Sevelius & Jenness, 2017).
Well into the 21st century, in the United States, there continues to be substantial disparity in transgender healthcare for “gender dysphoria” or related conditions experienced by prisoners. According to an empirical analysis of policies, directives, memoranda, and other documents relevant to the placement and healthcare of transgender prisoners in the United States, “Most systems allowed for diagnostic evaluations. There was wide variability in access to cross-sex hormones, with some allowing for continuation of treatment and others allowing for both continuation and de novo initiation of treatment. There was uniformity in denial of surgical treatments for GID” (Brown & McDuffie, 2009, p. 280). In other words, consistent access to quality healthcare is sorely lacking (Kendig et al., 2019; Sevelius & Jenness, 2017).
Transgender prisoners encounter other challenges related to gender identity and expression affirmation. For example, in many facilities, the official dress code mandates clothing that does not align with their gender identity; verbal harassment and the use of slurs by prison staff take the form of referring to transgender prisoners by the wrong names and pronouns; and personal hygiene products relevant to one’s gender identity are not made available. These and other concerns related to, for example, strip searching and showering, culminate in what a frontpage article in the New York Times described as “the deliberate defeminizing” of transgender women in facilities for men. With the headline “Transgender Woman Cites Attacks and Abuse in Men’s Prison,” Sontag (2015, p. A1; emphasis added) describes it as follows:
Rome, Ga.—Before she fell on hard times and got into trouble with the law, Ashley Diamond had a wardrobe of wigs named after her favorite divas. “Darling, hand me Aretha” or Mariah or Madonna, she would say to her younger sister when they glammed up to go out on the town.
Ms. Diamond, 36, had lived openly and outspokenly as a transgender woman since adolescence, much of that time defying the norms in the conservative Southern city.
But on the day she arrived at a Georgia prison intake center in 2012, the deliberate defeminizing of Ms. Diamond began. Ordered to strip alongside male inmates, she froze but ultimately removed her long hair and the Hannah Montana pajamas in which she had been taken into custody, she said. She hugged her rounded breasts protectively.
Looking back, she said, it seemed an apt rite of initiation into what became three years of degrading and abusive treatment, starting with the state’s denial of the hormones she says she had taken for 17 years. . . .
“During intake, I kept saying: ‘Hello? I’m trans? I’m a woman?’” Ms. Diamond recounted in a phone conversation from prison a few weeks ago. “But, to them, I was gay. I was what they called a ‘sissy.’ So, finally I was like: ‘O.K., I’m a sissy. Do you have a place where sissies can go and be O.K.?’”
These and other types of concerns have prompted considerable political mobilization on behalf of LGBT detainees and prisoners.
Political Mobilization to Document, Shape, and End LGBT Incarceration
Globally, political mobilization to improve the lives of LGBT people has engendered new instruments that recognize and document the mistreatment of LGBT prisoners as human rights violations. While international human rights proliferated in the UN, LGBT social movements started in part as a response to the continuing criminalization and imprisonment of LGBT people after World War II. Two organizations in the United States, the Mattachine Society and Daughters of Bilitis, sparked global political mobilization for LGBT people by defending individuals accused of sodomy law violations, advancing sexual minority interests in political spaces, and leading the reform of penal codes (Adam, 1995). In 1961, Illinois became the first U.S. state to decriminalize consenting same-sex sexual activity among adults (Gunnison, 1969). At the same time, LGBT activists adopted the civil disobedience strategies of their contemporaries in the Civil Rights Movement to rally in major cities and college campuses, where they protested police raids of bars catering to LGBT people (Gunnison, 1969).
These events became part of the social changes sweeping across various parts of the world in the 1960s and shifted the discourse on LGBT people as sex and gender criminals to a bona fide constituency that should be liberated, legally and otherwise (Adam, 1995). In North America and Europe, advocacy groups set sophisticated agendas for criminal justice reform to repeal criminalization statutes, equalize the age of consent for homosexuality and heterosexuality, and institute protections for LGBT people under human and civil rights law (Jackson & Persky, 1982). These efforts led to the decriminalization of homosexuality in the United Kingdom and Canada by 1967 and 1969, respectively. However, backlash from right-wing religious groups delayed legalization in the United States and implementation was challenged in other parts of the world. From 1975 to 1981, citing “indecency” laws, Canadian police systematically arrested men in gay bars and bathhouses and, in 1989, British courts convicted 3,000 gay men using similar provisions (Adam, 1995; Tatchell, 1992).
Interest in the study and reform of prison policies for LGBT people, particularly gay and transgender prisoners, followed this expanded awareness of LGBT human rights abuses worldwide. Previously ignored in the criminological literature, save an assortment of mid-century studies posing a link between criminal activity and gender dysphoria or sexual deviancy, criminology turned in the 1990s toward introducing other explanations for gay and transgender criminality and turned to the effects of the status quo of prison management on these prisoners (Dickey, 1990). The prevalence of problems for incarcerated gay and transgender people has piqued the interest of researchers, advocates, and lawyers in multiple countries, giving rise to an array of new proposed policies (Barnes, 1998; Mann, 2006; Petersen, et al., 1996; Rosenblum, 2000).
During this time, social scientific understandings on prison homosexuality underwent substantive changes that inevitably led to a new way of framing the mistreatment of LGBT prisoners. Earlier literature viewed both consensual and coercive prison sexual activity as stemming from predatory homosexuals in prisons, despite the preponderance of this behavior involving prisoners who engage exclusively in heterosexuality outside of prison (Howarth, 1985; Ward & Kassebaum, 1965; Wooden & Parker, 1982). Scholars shifted their understandings of prison rape from a frame of “perversion” to a frame that emphasizes expressions of power within single-sex institutions (Donaldson, 2001; see also Scacco, 1975). Some prisons followed a similar change in logic in prison management: gay and transgender prisoners who were segregated for their perceived perpetration of same-sex rape began to be segregated to prevent their victimization (Howarth, 1985, pp. 14–15).
In the late 1990s and early 2000s, scholars produced an influential body of work on coercive and consensual sex in U.S. prisons for men and women that ultimately led to historic legislation. A major corrections journal, The Prison Journal, exclusively published research on sex in prison for its December 2000 issue, and the 2002 book Prison Sex: Practice and Policy provided an extensive volume of new research on sexual activity and assault. In the 2000s, a path-breaking report by the international NGO Human Rights Watch exposed the deleterious conditions and endemic of rape for gay men in prisons (Mariner, 2001). The report underscored sexual minority status as a substantial risk factor for prison sexual victimization and is attributed as triggering the passage of the U.S. Prison Rape Elimination Act (PREA), which called for data collection and the development of strategies for the prevention of prison sexual assault (Smith, 2008). Signed into law by President George W. Bush on September 4, 2003, PREA has many objectives. Its overall purpose is “to provide for the analysis of the incidence and effects of prison rape in Federal, State, and local institutions and to provide information, resources, recommendations, and the funding to protect individuals from prison rape” (Prison Rape Elimination Act of 2003, Pub. L. No. 108–179, 117 Stat. 978).
Prisons across the world began to respond to this crisis by instituting prison reform. Spain introduced one of the first systems allowing prisoners to be housed in facilities according to gender identity in 2006 (Mendez, 2011) while Canadian prisons spearheaded changes in the management of transgender prisoners by adding LGBT anti-discrimination protections to its human rights legislation. In 1993, Correctional Services Canada (CSC) amended its transgender prisoner policy to allow hormone therapy for prisoners who had not yet begun treatment prior to incarceration, as well as briefly permitting gender affirmation surgery in 1995, before reversing course in 1997. Following Canada’s lead, the United States made significant changes in policy and practice. In particular, PREA focused newfound national attention on the victimization of gender nonconforming people behind bars; in 2010, the U.S. State Department announced a new policy to issue passports that reflect a person’s current gender when either a previous passport or other personal documentation presented by an applicant reflects a different gender; in 2012, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum permitting transgender people to change the gender designation on their immigration documents; and in 2015, President Obama became the first U.S. president to use the term “transgender” in a State of the Union address and the Department of Homeland Security issued a memorandum that provides further guidance regarding the care of transgender adult detainees in the custody of ICE.
Shortly thereafter, the Canadian Human Rights Tribunal heard complaints brought by Synthia Kavanagh, a transgender prisoner housed in a men’s prison, who challenged the prison’s policies on gender affirmation surgery and housing placement (Kavanagh v. Canada, 2001). In response to these complaints, the Tribunal ordered CSC to reform its policies to address the housing and healthcare needs of transgender prisoner (Mann, 2006). Prison authorities are instructed to address prisoners by their chosen name and pronouns or use gender neutral language in all oral and written communication; accommodate requests for searches, shower facilities, and other services based on gender identity or expression; allow access to clothing and commissary items of a prisoner’s choosing wherever possible; and institute measures to protect the confidentiality of prisoners’ gender identities (CSC, 2017).
These and other historic changes, in one way or another, attend to the ways in which LGBT prisoners are vulnerable to threats to their health and well-being, promote respect for the non-normative sexual orientations and gender identities, and recognize the dignity of transgender people. These (historically) newfound ways of thinking about the experiences of LGBT prisoners are constitutive (also) of thinking about LGBT prisoners as rights-bearing subjects endowed with human rights that are universal and internationally recognizable.
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.
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.
While the 20th century has produced greater understandings of carceral conditions for LGBT and other gender nonconforming prisoners, much remains undertheorized and untested within the domains of sexual orientation and gender identity behind bars. Since the end of the 20th century, social scientific research has concluded that LGBT people are particularly vulnerable in prisons, jails, and other lock-up facilities and identified challenges that may be compounded by various prison management contexts. More systematic testing on the relative safety of housing environments is needed to confirm which (and whether) policy measures can reduce the violence experienced by LGBT prisoners.
Furthermore, future research should assess LGBT prisoner healthcare. Prisoners’ access to healthcare has emerged as an especially visible issue for transgender people who continue or begin treatment in prison. A wide variety of responses to the healthcare needs of transgender prisons across the world have given rise to recent human rights and other legal challenges.
Scholars can shed light on both the healthcare needs of transgender prisoners and the impact of healthcare models instituted inside prisons. Additionally, research may consider other policies and practices impacting LGBT prisoner populations, such as mental health treatment, sexually transmitted infections prevention, and other healthcare provisions, as well as prison sex prohibition, religious programs, and educational services.
Finally, in the 21st century, scholars can focus on the ways homogenization of policies and practices impacting LGBT prisoners proliferates internationally, the effect of globalization on incarceration of LGBT people, and the models and strategies employed to alleviate stratification in prisons worldwide. Through the human rights apparatus and other international systems, processes of globalization increasingly seek to influence LGBT people inside and outside prisons. These changes call for the prioritization of sexual orientation and gender identity scholarship—across race, class, and national origin—within the greater body of criminological and criminal justice research.
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