Court Order Could Signal Change for Trans Women in Men’s Prisons

Strawberry Hampton has spent the last three-and-a-half years living in men’s prisons in Illinois. She has spent the past two years in solitary confinement after reporting sexual harassment and abuse at the hands of prison staff. She has filed two lawsuits about repeated physical and sexual abuse. She settled one in 2017; in 2018, she filed another suit for the continuing physical and sexual assaults she endured at the hands of prison staff and the men around her. That lawsuit demands that Hampton, who has been placed in four men’s prisons where she has experienced physical and sexual assaults from both staff and other incarcerated people, be moved to a women’s prison. It also demands that she be released from 24-hour solitary confinement (otherwise known as segregation), which she has endured for more than two years.

This past November, a federal judge found that she had a likelihood of success if her claims went to trial and ordered the Illinois Department of Correction (IDOC) to devise a plan to address the trans people in its custody.

On November 7, the judge gave the IDOC 14 days to come up with a plan to train all correctional staff on transgender issues. The judge also ordered that the prison allow Hampton, now age 27, to attend the unit’s transgender support group (which she has not been able to do since being placed in isolation), and ensure the IDOC Transgender Care Review Committee consider all evidence for and against transferring her to a women’s prison. The judge noted that if Hampton’s suit were to go to trial, she was likely to succeed on the merits of her claim — that the IDOC violated her rights under the Constitution’s Equal Protection Clause by placing her in a men’s prison. However, the judge did not order the IDOC to transfer Hampton to a women’s prison or release her from segregation.

During the last week of December 2018, the IDOC moved Hampton to Logan Correctional Center, one of its two women’s prisons. “Strawberry has fought every day to be free from sexual violence and to have the IDOC recognize that she is a woman,” said Vanessa del Valle of the Roderick and Solange MacArthur Justice Center and one of Hampton’s attorneys. “This transfer, which occurred after a year of hard fought litigation and two emergency hearings, is a victory for her and a testament to her strength and courage. But IDOC has done nothing to remedy the systemic failures that created the persistent harm Strawberry has endured since she entered IDOC custody. The fight for Strawberry and for all trans women in IDOC has only just begun.”

What does this court order mean for trans women in men’s jails and prisons across the country?

No government agency tracks the number of transgender, intersex or gender-variant people behind bars. The Department of Justice has estimated that, between 2011 and 2012, there were 3,209 trans people incarcerated in state and federal prisons and another 1,709 trans people in local jails. What is known is that trans women in men’s prisons are at a particularly high risk for sexual assault — one study found that 59 percent of trans women in men’s prisons in California had been sexually assaulted while incarcerated compared to 4 percent of the cisgender male population. They also experience continual physical and verbal harassment and abuse by both prison staff and other incarcerated people. This was what Hampton reported from each and every of the four men’s prison where she has been housed.

Hampton has repeatedly requested a transfer to a women’s prison. But the Department of Corrections’ Transgender Care Review Committee (which had been previously known as the Gender Identity Committee and the Gender Dysphoria Disorder Committee) repeatedly denied these requests, and so Hampton remained in the state’s men’s prisons where she continued to endure verbal, physical and sexual abuse.

Though the judge did not order Hampton to be moved to a women’s prison, advocates were optimistic that the initial court ruling might spell changes for other imprisoned trans women. “This is a big win for Strawberry and for trans women in prisons across the country,” said del Valle. “This is a ruling that trans women can use in their [own] cases — that trans women have rights under the Constitution, especially if they’re housed in men’s prisons.”

Hampton agrees. “I feel that this opens up the door for other LGBTQID members,” she wrote in a November letter from prison.

Imprisoning Trans Women in Other States

In March 2018, a Massachusetts court issued a decision on a similar case. In Doe v Massachusetts Department of Correction, Jane Doe, a trans woman incarcerated in a Massachusetts men’s prison, filed a lawsuit alleging that, by failing to transfer her to the state’s women’s prison, prison staff violated her rights under the Equal Protection and Due Process clauses of the 14th Amendment. The court ordered that the prison have female correctional officers strip search Doe; house Doe in an individual cell; offer her shower time separate from the incarcerated men; and station an officer to ensure that incarcerated men not enter the shower area while Doe is showering.

However, the court order did not grant Doe’s request to be transferred to the women’s prison. It also declined to grant her request for additional staff training on trans issues, calling the training “both exceeding its authority and as unduly burdensome on DOC [the Department of Corrections].”

In prisons and jails across the country, people are housed based on the sex they are assigned at birth. But years of advocacy and organizing by prison justice advocates, including formerly and currently incarcerated trans people, have wrought some changes.

In January 2017, the Bureau of Prisons (BOP), which operates the federal prison system, revised its manual to allow prison officials to consider a person’s gender identity when assigning them to a prison. The updated manual reads, “The [Transgender Executive Council] will recommend housing by gender identity when appropriate.”

Seven months later, in August 2017, four evangelical Christian women incarcerated at the federal medical prison in Carswell, Texas, and the federal prison in Bryan, Texas, filed suit arguing that the BOP violated their constitutional rights by placing trans women in the same prison as them. They alleged that the trans women, who were not housed on the same units as the plaintiffs, had harassed, threatened and exposed themselves, though the prisons’ investigation did not substantiate their claims.

In May 2018, the BOP announced that it would now mandate placements based on assigned sex at birth. The reversed policy only applies to federal prisons.

That same month, however, Connecticut became the first state to pass a law requiring that trans people be incarcerated according to their gender identity. The law, which took effect on July 1, also requires that trans people be searched by corrections officers who match their gender identity, be addressed with proper pronouns, and be guaranteed access to clothing and toiletries that match their gender identity. But this law only applies if the incarcerated person has either been diagnosed with gender dysphoria or had their gender marker legally changed. The Connecticut Department of Correction did not respond to repeated queries about how the law has been implemented.

In other states, however, trans women continue to routinely be placed in men’s prisons, where they are at increased risk of violence. That’s what happened to Victoria Drain, a trans woman placed in an Ohio men’s prison. Less than three months after entering prison, Drain was continually harassed by a male prisoner, harassment that she attributes to being trans. “I’d ask him to leave me alone; I don’t want to be bothered. I’d try to ignore him, or stay away from him,” she wrote in a letter to Truthout. “Every time I turned around, he was there, staring or trying to initiate conversation. The final straw was he grabbed my ass on the way out to rec.”

Recognizing that reporting his action would only lead her to be labeled as a “snitch” and further targeted for violence and harassment, Drain instead took matters into her own hands — and stabbed the person who had been threatening her. She was placed in segregation, where she says staff continually called her transphobic and homophobic slurs. She was also denied hormone therapy despite numerous requests to both prison administrators and outside advocacy organizations.

In October 2018, after two years of isolation, Drain once again decided to take matters into her own hands — she attempted to castrate herself. “I can’t do this,” she wrote in a letter shortly before her attempt. “Life in prison, yes. Life in this body, no.” She was immediately rushed to the hospital; two days later, she was transferred to the medical unit of another men’s prison, where she remains to this day.

Hampton’s lawsuit—and recent court order—gives Drain, who is in the process of filing her own lawsuit to demand hormone therapy, hope. In a recent e-message to Truthout, she wrote, “i dont know what it will mean for me but I know it’s a step in the right direction for sure.”

“We Need to Keep Fighting Until We Are Treated Like Humans”

In its court documents, the Illinois DOC acknowledged that people entering their prisons are initially placed according to their genitalia. In these documents, the Department also notes that at least two transgender women have been transferred to women’s prisons after a case-by-case determination by the Transgender Care Review Committee.

On November 16, the DOC submitted a plan to train staff about transgender issues. Prison staff also allowed Hampton to attend the prison’s trans support group. Hampton has attended three times already and told Truthout that it was good. She is less hopeful, however, that staff training will halt the transphobic violence and abuse. “I’m so happy that they are doing training, but I feel that ain’t gonna do shit cause an asshole is an asshole. I feel they need to be punished and then things will change,” she wrote.

Other trans people who have been imprisoned, notably CeCe McDonald, who was sentenced to 41 months in a Minnesota men’s prison after defending herself against a transphobic attack, have noted that prison itself is a breeding ground for sexual violence and abuse, particularly against trans people. She decided against fighting to be placed in a women’s prison, telling her supporters, “Prisons aren’t safe for anyone, and that’s the key issue.”

McDonald served 19 months in prison, five of which were in solitary confinement, ostensibly to protect her from sexual and transphobic violence. In an interview after her release, McDonald stated that “it wouldn’t have mattered even if I was sent to a women’s prison. Being around more women wouldn’t have stopped me from dealing with the other intersections of oppression like sexism, hypersexualization of my body, racism, or violence.”

As McDonald notes—and numerous incarcerated women can attest — women’s prisons are not free of sexual violence. In 2016, Logan Correctional Center, one of Illinois’s two women’s prisons, had 54 reports of staff sexual misconduct and harassment. The following year, that number had dropped only slightly to 45. For trans and gender non-conforming people, staff in women’s prisons can be just as brutal—as previously reported in Truthout, Stacey Rojas endured 14 years of staff harassment and abuse because of their gender identity. In 2015, when they told an officer that they would report his behavior, he physically attacked them, then placed them in a small programming cage for nearly 12 hours, denying them medical care and even the use of a bathroom before transferring them to solitary confinement.

Hampton’s attorneys recognize this horrific reality as well. “Strawberry’s struggle to live free from sexual assaults and harassment while in IDOC custody demonstrates a fundamental truth about prisons—they are inherently violent and only create harm,” said Sheila Bedi of the MacArthur Justice Center and co-counsel for Hampton. “Strawberry doesn’t belong in a women’s prison, she belongs at home with her family. But until she’s home, the very least the IDOC can do is to take this step towards remedying the discrimination and sexual violence Strawberry currently lives with on a daily basis.”

Even before she was transferred, Hampton viewed the November court decision as a ray of hope, one that her actions helped bring about. “Now other LGBTQID can have a voice of their own,” she wrote. “We need to keep fighting until we are treated like humans and not cast out.”