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Loretta Lynch and the Criminalization of Trans People

In her historic address, the US attorney general didn’t mention trans people who are currently incarcerated or detained.

In a speech last week, US Attorney General Loretta Lynch spoke to the transgender community, saying, “The Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”

Lynch’s speech announced that the US Department of Justice would file a federal civil rights lawsuit against the State of North Carolina and Gov. Pat McCrory in response to the passage of the bill HB2, which, among other things, criminalizes transgender people for using a bathroom that does not correspond to the “sex” assigned on their birth certificate. Many called her speech historic, with her allusions to the civil rights movement inspiring some to go as far as calling it “the ‘I Have a Dream’ moment of the transgender movement.”

Never before has a government official of Lynch’s standing so explicitly acknowledged the issues facing the transgender community, nor has the federal government ever taken such decisive action to protect transgender people.

Lynch’s historic words have a double meaning: Once locked up, trans people are no longer worth protecting.

But Loretta Lynch is not just any employee of the federal government: She oversees the Department of Justice, and thus the imprisonment of the approximately 2.2 million people incarcerated in the United States. And in her historic address on trans issues, Lynch left out an important subsection of the transgender community: the thousands of trans people who are currently incarcerated or detained. Even as Lynch and the rest of the Obama administration say that they “see” trans people, they are also responsible for the vast criminal legal system that invisibilizes and victimizes so many trans people. And when compared to the realities of detention and incarceration for trans people, Lynch’s historic words have a double meaning: Once locked up, trans people are no longer worth protecting.

As advocates against HB2 have noted, the most egregious piece of the bill was that it criminalized trans people simply for being trans. Though HB2 and similar bills considered in state legislatures across the country are deeply damaging to trans people, particularly as anti-trans propaganda has become a popular right-wing rallying point, the criminalization of trans people happens every day in far more insidious ways. According to the National Transgender Discrimination Survey, 16 percent of transgender adults have been in prison or jail, compared to the national rate of incarceration of only 2.7 percent of adults.

Black trans women face particularly high rates of imprisonment — almost half (47 percent) have been in jail or prison at some point in their lives. These rates of incarceration are due to the myriad ways in which systemic issues like poverty, homelessness and discrimination — as well as the criminalization of drug use and sex work — disproportionately affect trans women of color.

Meanwhile, trans men of color experience a slightly different set of overlapping forms of oppression. In the case of Ky Peterson, a Black trans man incarcerated in Georgia for defending himself against sexual violence, his court-appointed attorney wouldn’t even allow him to plead “not guilty” because he “already had two strikes against him” just for appearing “stereotypically gay” (how the attorney described Peterson’s gender presentation) as well as Black. Transphobia characterized the whole investigation: Peterson was treated with suspicion in spite of the evidence that he acted in self-defense, simply because he is a Black trans man. The criminalization of trans people simply for being trans is not unique to bills like HB2 — in fact, it’s happening every day, especially for the most vulnerable people in the transgender community.

Loretta Lynch’s words seem dissonant not just due to the absence of incarcerated trans people in her speech, but because of the inconsistency between her words and the treatment of incarcerated trans people during her tenure. Even after Lynch’s speech, political prisoner Chelsea Manning, a trans woman held in military prison, continues to be denied the right to grow out her hair. This prohibition from the Department of Justice makes little sense, according to Manning’s lawyer, without “resistance to the very core idea that a transgender woman is a woman.”

Creating more “trans-friendly” prisons is not the answer to the criminalization and incarceration of trans people.

The realities of the Department of Justice’s (DOJ) policies on trans people in prison consistently contradict Lynch’s assurance that the DOJ will fight to protect trans people. As conservative pundit Ed Whelan noted in the National Review, the DOJ’s lawsuit against North Carolina directly contradicts the DOJ’s prison regulations regarding transgender people. The National Review is misinformed about a lot of things (for example, “transgendered” isn’t a word), but Whelan’s piece points out a major issue with the DOJ’s lawsuit against HB2: The DOJ’s championing of trans rights simply does not align with the DOJ’s practices regarding trans people who are incarcerated.

Of course, the Obama administration is consistent in its inconsistency — just as President Obama spoke about the “terrorization” of deportation and detainment of undocumented people and then deported more people than any other president, Lynch’s speech promises equal rights for all trans people while ignoring the plight of trans people incarcerated under her watch.

Yet despite the ways that Lynch and the Obama administration have harmed incarcerated and detained trans people, their policies are not uniquely damaging compared to other administrations. In fact, under the Obama administration, many ostensibly trans-inclusive policies have been implemented by Immigration and Customs Enforcement and the Federal Bureau of Prisons, including the creation of GBT pods in detention centers, like the one in Santa Ana, California, where Familia TQLM members are on hunger strike, demanding it be closed. However these policies often backfire: Rather than creating safer spaces for LGBTQ people, they instead lead to their isolation (including trans women being placed in solitary confinement, for example). These misguided policies show that creating more “trans-friendly” prisons is not the answer to the criminalization and incarceration of trans people. Prisons and detention centers aren’t safe for trans people — or anyone. A movement truly dedicated to “seeing” trans people needs to work toward ending the harm of these systems for all people.

The incarceration and criminalization of trans people of color is at the heart of LGBTQ oppression in the United States today: No matter how decisively the Department of Justice moves against North Carolina’s repressive bathroom bill, Loretta Lynch cannot say that she supports transgender people while administering the largest carceral and detention system in the world. In order to create a truly safe world for transgender people, we have to abolish the carceral systems of incarceration and detention that cage so many of them.

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