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California Law Is Step Forward But Fails to Guarantee Safety for Trans Prisoners

A new California law is a step forward for incarcerated transgender people, but people are never fully safe in prison.

Jennifer Rose (left) and Jasmine Jones (right) at Mule Creek State Prison in 2018. While in prison, Rose and Jones co-founded Red Roses, a trans-feminist prison collective. Jones was released in May 2020 and now works at the TGI Justice Project.

Syiaah Skylit has been imprisoned in California since 2015. Despite multiple requests to be placed in a women’s prison, Skylit, a Black trans woman, has always been incarcerated in the state’s men’s prisons. There, she has faced attacks by incarcerated men as well as sexual abuse and retaliation by prison staff. She has filed a complaint of housing discrimination with the state’s Department of Fair Employment and Housing. For now, she remains not only in a men’s prison, but in its segregation unit — otherwise known as solitary confinement — where she spends 23 hours each day locked alone in a cell.

A new law may change that. On September 26, 2020, California Gov. Gavin Newsom signed SB 132, the Transgender Respect, Agency and Dignity Act, into law. The act requires the California Department of Corrections and Rehabilitation (CDCR) to house trans people in prisons in accordance with their own perception of health and safety. The act also requires that prison officials privately ask each newly arriving person their gender identity, their pronouns and whether they identify as trans, non-binary or intersex. The new law mandates that prison staff and volunteers use the correct gender pronouns and conduct searches for each person in accordance to CDCR’s search policy for their gender identity (meaning that a trans woman in a men’s prison can request to be searched by a female officer). SB 132 also requires CDCR to house people in the gendered prison according to their preference (with some exceptions).

As previously reported in Truthout, trans women in men’s prisons, such as Skylit, are 13 times more likely to be sexually assaulted than cisgender men. According to data provided by CDCR, over 50 percent report fearing for their safety if they report harassment, discrimination or violence.

SB 132 only applies to California state prisons. Trans, intersex and non-binary people incarcerated in other states or in the federal prison system still face being housed according to their genitalia or their gender assigned at birth.

Filing Housing Discrimination Complaints

Jennifer Amelia Rose has been incarcerated in California’s men’s prisons since 1991. Like Skylit, she has repeatedly requested to be placed in a women’s prison — to no avail.

Rose has refused to comply with strip searches conducted by male officers or in front of incarcerated men. In 2008, she refused to be placed in a cell with a man, stating, “I don’t want to be put in a cell with a strange man who is going to pressure me or force me to have sex.” Her refusal resulted in prison officials stripping her of the ability to buy items at commissary or use the phone for 90 days and removing 30 days of worktime credit, which would have shortened her prison sentence. In 2009, she once again requested to be placed in a women’s prison, citing housing and safety concerns. In his response, the associate warden addressed Rose as “Mr.” before denying her request. In 2016, Rose was physically attacked by a correctional officer, who shouted homophobic slurs at her. Under the Prison Rape Elimination Act, an incarcerated person must exhaust the prison’s internal grievance (complaint) process before filing a lawsuit in an outside court. Determined to hold the officer accountable for his violence, Rose went through the prison’s internal process, being denied at each level, before filing a handwritten lawsuit in federal court in 2018.

Skylit and Rose were briefly cellmates at Mule Creek State Prison, another California men’s prison. By 2019, however, they had been transferred to different prisons — Skylit to Kern Valley State Prison and Rose to the Salinas Valley State Prison. From their separate prison cells, both women contacted Medina Orthwein LLP, a queer-owned civil rights law firm, and filed housing discrimination complaints with California’s Department of Fair Employment and Housing. California’s Department of Fair Employment and Housing did not respond to Truthout’s request for comment. According to Medina Orthwein, the Department of Fair Employment and Housing had initially stated that it planned to file a class-action complaint against CDCR for housing discrimination with Skylit and Rose as lead plaintiffs. In October, citing agency discretion, the department decided not to pursue the complaint and closed both women’s cases.

“Men’s Prisons, Women’s Prisons — They’re Prisons, and They’re Not Good”

In June 2011, CeCe McDonald, a 23-year-old Black transgender woman and her friends were walking to the grocery store in Minneapolis. As they passed a bar, she was first verbally harassed, then physically attacked, by some of its white patrons. One woman smashed a glass into McDonald’s face, slicing her cheek. More people joined in the attack and ultimately, Dean Schmitz, who had instigated the harassment, was stabbed. He later died in the hospital. McDonald was arrested and charged with second-degree murder.

Facing 20 to 40 years in prison, McDonald pled guilty to second-degree manslaughter due to negligence, a plea that the prosecutor offered after an outpouring of support from thousands demanding that the charges be dropped. McDonald was sentenced to 41 months in prison, which she served in men’s prisons. She asked that supporters not mount a campaign to have her transferred to Shakopee, the state’s sole women’s prison.

“I did some educating myself on the prison-industrial complex and the history behind African Americans in incarceration,” she told Democracy Now! upon her release in 2014. “I felt like sending me to any prison wouldn’t solve my issue. Men’s prisons, women’s prisons — they’re prisons, and they’re not good.” Instead, she told her supporters that their efforts were better spent “to make sure that I was safe wherever I went.”

McDonald, now an activist-in-residence at the Barnard Center for Research on Women, acknowledged the importance of safety for trans people. But, at the same time, she told Truthout, “Prison is prison. Who’s to say that trans women wouldn’t be raped in a women’s prison? We know that rape culture is thriving. In prison, everyone is a target.”

While in prison, McDonald faced verbal threats, intimidation and physical attacks. She sees this violence not as unique to prisons, but “the same bullshit I deal with on the streets.”

Furthermore, as a Black trans woman, she challenges the idea that being in a women’s prison would have kept her safer. “The idea that cisgender and cis-het [cisgender-heterosexual] women are less racist is a very toxic and debilitating notion,” she reflected.

Joe Vanderford is a biracial Asian-and-white trans man currently incarcerated in Shakopee. “I think the transwomen would be safe here because it is so gosh darn small that the hateful staff can’t get away with physical assaults yet,” he wrote in an e-message to Truthout. “There are cameras everywhere and a few good staff that if threatened with their jobs from the governor would spill the beans.”

But, he added, “There would be ridicule. gawd knows i have heard it and endured it.” For Vanderford, this includes staff saying to each other, in front of him, “If I wanted to be a man, I wouldn’t come to a women’s prison to do it.” He also recalls a prison event in which a church volunteer attempted to convert him and offered to find him “a good church man” to date.

He and other trans people have also faced more scrutiny and punishments than their cisgender counterparts. “I had a [citation for] sexual misconduct while fully dressed, sitting in plain view of everyone. the officers never said anything to me so i didn’t know it- they had a team called to take me to lock [punitive solitary confinement]. three women stripped me out much more sexually traumatizing than even what I was accused of I spent 25 days in lock. talking too loud would be taken as aggressive. nails showing past the meat of the finger when holding palms to cop is reason to be sent inside & sanctioned.”

Still, he concurred in an e-message, “CeCe is right there is no good prison. the only reason I think this would be better is the prison is small with lots of cameras – so chances of assault may be less likely.”

“If They Put Me in a Women’s Prison, None of This Would Have Happened to Me”

Precious, a white trans woman, was raped earlier this year while incarcerated at the Minnesota Correctional Facility – Moose Lake, a men’s prison, as previously reported on Truthout. She was brought to an outside hospital where she underwent a rape kit exam, then returned to the prison the following day. The man who assaulted her was transferred to another prison.

On July 27, Precious was raped again. Once again, she was brought to the hospital for a rape kit exam. Upon return to the prison, she was quarantined for 14 days, then placed in solitary for another 30 days, supposedly for her own safety. She was then transferred to another men’s prison.

“I’m super far from my family and my parents are too old to drive three hours here to see me, then back home,” she told Truthout one month after the second assault. “This has been mentally, emotionally, psychically draining on me. I was raped twice at Moose Lake within four months so I don’t know what will happen from here.” Fearing further sexual assault, she now stays in her cell for the majority of the day, leaving only to use the vending machine, phone or e-messaging kiosk. “I feel safest locked in my room,” she wrote.

Upon learning of the California law, she wrote, “I believe if they would have put me in a woman’s prison like Shakopee, none of this would have happened to me. I don’t feel safe here at all. I’m always scared paranoid, etc. I wish someone would launch a campaign to get me transferred I don’t belong in a men’s prison.”

Furthermore, she agrees that prison staff should ask trans people where they would feel most safe and use their preferred pronouns. Both she and Vanderford have told Truthout that a new Minnesota policy allows them to have prison identification cards with their preferred prefixes (Mr., Ms. or Mx.) though staff still verbally call Precious “sir” and “mister.”

Will Other States Take a Cue From California?

Being in a women’s prison doesn’t automatically mean that trans people will not face violence. As reported previously on Truthout, Ky Peterson, a Black trans man, spent nine years in Georgia’s Pulaski State Prison for Women.

“In the women’s prison, people saw me as different,” he told Truthout. Sometimes this resulted in verbal harassment. Other times, women wanted to fight him. Usually Peterson was able to defuse the situation, but sometimes he was unable to. Sometimes, he was punished more harshly than the person who attacked him.

At one point, he was housed in a cell with a woman who, at first, wanted to have sex with him. When Peterson refused, she began threatening him. Peterson reported her threats to prison staff, asking to be moved. Staff refused, telling him, “If y’all gonna fight, I’m taking you both to lockdown.”

That’s exactly what happened after Peterson’s cellmate hit him with a lock while he was sleeping. Both Peterson and his assailant were punished with placement in solitary confinement. “She got out two weeks before me,” he recalled. Peterson spent nearly two months in lockdown.

He was placed in isolation again in February 2016 when he began hormone replacement therapy, in which he was given hormones to induce physical changes to his body. Prison staff justified his placement by saying that they feared he would become violent because of the hormones. Peterson remained in isolation for a week. Every day, he recalled, he asked the deputy warden of security why he had been placed in isolation. “I’m not a threat to security,” he continually insisted. He was allowed to return to general population after agreeing to mow the prison lawns every day. “I was out there all day,” he recalled.

Staff also harassed him, constantly misgendering him, using incorrect pronouns and calling him derogatory names. When Peterson attempted to correct them or file grievances, he was told, “It doesn’t matter what you want to be called. You’re here now. You should have stayed home.”

“Georgia needs to adapt some of these same laws and policy changes,” he said when told about California’s new law. “People should be given that option [as to where to be housed]. It’s already hard enough being in the prison system. It’s even harder when you’re being threatened and bullied.”

“This Is a Better Chance at Surviving in Prison”

Jen Orthwein is part of the coalition helped advocate for SB 132. They are also a founding partner with Medina Orthwein LLP, which represents Rose, Skylit and other trans women in California’s prisons.

“CeCe’s assertion that prisons are not safe for anyone is well known to all of us and became somewhat of our mantra from the beginning,” Orthwein said in an email to Truthout. “We want people to understand that we are under no delusion that this bill will make prisons safe for anyone, including gender variant people. We just hope that this bill makes it possible for transgender, nonbinary and intersex people to survive prison with as much of their mental and bodily integrity intact as possible.”

From her segregation cell, Skylit wrote, “Is it really a new start or is it just starting over in a new place? Are we guaranteed safety because truly we will never be fully safe in prison.” At the same time, she called the new law “a victory for all transwomen and persons under the transgender umbrella…. This is a huge milestone, this is a better chance at surviving in prison.”

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