Trump administration reverses prison policies protecting transgender inmates

Transgender women will now be housed in female prisons only "in rare cases," the Trump administration announced in a major reversal of federal policy


By Lauren McGaughy
The Dallas Morning News

AUSTIN, Texas — Transgender women will now be housed in female prisons only "in rare cases," the Trump administration announced Friday in a major reversal of federal policy.

Since 2016, the U.S. Bureau of Prisons has required federal inmates' gender identity to "be given serious consideration" in housing decisions. Now, transgender prisoners will be asked to meet several new standards before they can be considered for transfer to a new unit.

The change came after female inmates in Texas sued the administration to overturn LGBT prisoner protections established under President Barack Obama. It's unclear whether the policy change will affect the nearly 500 trans men and women currently incarcerated in federal prisons.

In the last year, the Trump administration has repealed school protections for trans students and attempted to block trans servicemen and women from the Armed Forces. Advocates say the newest policy change continues the pattern of attacking transgender Americans and their rights.

"Transgender people already know the Trump-Pence administration is dedicated to stripping away our rights,"  Mara Keisling, president of the National Center for Transgender Equality, said Friday. "Their cruelty is only made more evident as they continually go after the most vulnerable among us."

Policy change details

Earlier this year, The Dallas Morning News reported the Trump administration was likely to roll back protections for trans inmates as part of settlement negotiations over a lawsuit to expel all transgender women from federal female prisons. Filed in 2016, the suit was brought by a group of non-transgender women incarcerated at the Carswell Federal Medical Center in Fort Worth.

Calling their grievance a "gender discrimination claim," these women compared being housed with trans women — who were born male but identify as female — to "cruel and unusual punishment."

According to the administration, the policy changes announced Friday will now "explicitly balance the needs of transgender inmates with the needs of other inmates in accordance with the Prison Rape Elimination Act regulation, which requires case-by-case determinations."

The new transgender offender manual includes the word "necessary" in its discussion of providing hormone or other medical treatment to trans inmates, and it changes the name of the agency's "Female Offender Branch" to the "Women and Special Populations Branch."

"The manual now addresses and articulates the balance of safety needs of transgender inmates as well as other inmates, including those with histories of trauma, privacy concerns, etc., on a case-by-case basis," the Bureau of Prisons said in a prepared statement. "BOP now explicitly requires consideration of safety risks to all inmates in making housing determinations."

The prisons bureau did not answer The News' questions about whether transgender women currently housed in female units would be moved back to male prisons because of the policy change. Transgender rights advocates also said it was unclear whether the policy would be retroactive. The way it's written, it appears to only apply to future intake and transfer decisions.

"We just have to wait and see how they interpret it going forward, but on the face of it it doesn't seem to require them to reassess" anyone's current housing assignments, said Demoya Gordon, an attorney at the national LGBT law organization Lambda Legal. 

Donna Langan, a transgender women incarcerated at the female prison in Fort Worth, said in an email Monday there's no current plan to move her due to the new policy change.

"But that could change," she told The News. " I will continue to try and maintain my status and location, and be an example of how a trangender [sic] woman can fit in here."

Conflict of interest concerns

Gary McCaleb of the Alliance Defending Freedom is the attorney leading settlement negotiations with the Trump administration. He declined to confirm whether the policy changes were a result of the Texas lawsuit, saying he'd have to discuss them with his client before commenting.

"We've obviously been engaged in confidential negotiations, so I can't give you a lot of details," he told The News on Sunday. The new policy "changes the situation somewhat, so basically we need to go to talk to our client and see what she thinks and go from there."

Meanwhile, in a strange twist for this already complex issue, the original plaintiffs who asked for the expulsion of all transgender inmates have removed themselves from the case and started a separate lawsuit. They claim the Alliance Defending Freedom has a conflict of interest because it's worked cooperatively with the Trump administration before. 

"ADF lawyers have completely violated their ethical responsibilities to the 3 initial Plaintiffs in this case by putting their loyalties to one of the Defendants, AG [Jeff] Sessions, over the interest of their clients," Rhonda Ann Fleming, who filed the original lawsuit, wrote in a motion to disqualify counsel on April 16. "The Plaintiffs all support President Trump, but not the Department of Justice, that is attempting to cheat female inmates from true justice."

In an email to The News on Sunday, Fleming said the new "policy does not go far enough because it only takes one man to violate my bodily privacy and religious freedom.

"Our preliminary injunction requested that the male inmates be removed from women's prison. The new policy change does nothing to address the requested relief."

McCaleb has denied Fleming's conflict of interest concerns. On Sunday he said simply, "they are baseless."

The federal prison policy changes will not affect Texas jails and prisons. State policy prohibits transgender men and women from being housed according to their gender identity. Instead, LGBT inmates who feel at risk because of their status can ask to be housed separately from the general prison population.

©2018 The Dallas Morning News

McClatchy-Tribune News Service

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