Respect for Transgender People’s Gender Identities in ICE Custody Is Not Enough

After years of pressure from advocates, in June, US Immigration and Customs Enforcement (ICE) issued guidance on the care of transgender detainees in custody. The 18-page memorandum may contain important reforms but for those in detention, it offers too little, too late.

Perhaps the centerpiece of the ICE guidance – and what has been heralded by some as an important victory – is the explicit reference to transgender detainees being placed in accordance with their gender identities. But this provision should give us pause for at least two reasons.

First, the guidance is unlikely to actually result in transgender people consistently being housed in accordance with their gender identity. Though reports proclaim, “Transgender Immigrants to Be Detained According to Gender Identity,” this is not what the guidance says. The guidance merely permits transgender people to be housed in accordance with their gender identity – meaning that a trans woman could (in theory) be detained along with other women, instead of being locked up in a men’s facility. But with no mechanisms to actually enforce the guidance, it is unlikely that this provision will result in meaningful changes to how transgender detainees are placed.

And even if ICE’s guidance could somehow be enforced, the Prison Rape Elimination Act (PREA) standards have taught us that “individualized” assessments for the placement of transgender people don’t actually result in transgender people being detained based on gender identity. Not unlike the ICE guidance, the Department of Justice’s final PREA regulations require transgender housing assignments to be made based on an individualized assessment, taking into account a prisoner or detainee’s view of their own safety. Despite this, US prison, jail, juvenile justice and lockup facilities still systematically incarcerate transgender people based solely on their genitals or assigned sex at birth. In flawed and violent systems, discretionary decisions around placement usually result in the maintenance of the status quo.

Second, housing transgender people based on gender identity does not erase the violence of detention itself. As Black trans woman and prison abolitionist CeCe McDonald has explained of her own incarceration in a men’s prison, “I don’t think I would have felt any safer if I was in a women’s prison. I would still have to deal with harassment from the guards, the fucked up policies, the discrimination. Prisons aren’t safe for anybody. Prisons were created to oppress and hold down and deteriorate you.” This is no less true in the immigration detention context.

Reflecting on her experience being detained with men in ICE custody, Translatina Network activist Cecilia Gentili explained in an interview that just placing transgender women with other women is not enough, and it “could still be dangerous.” Release from custody is the only option that “at least gives you the voice to be with who you want to be,” Gentili noted, adding that even release with an ankle monitor is an improvement over incarceration.

When undocumented transgender Latina activist Jennicet Gutiérrez interrupted President Obama’s LGBT Pride month reception in June to demand the release of the more than 75 transgender women currently detained by ICE, she echoed this sentiment, explaining that “[t]he violence my trans sisters face in detention centers is one of torture and abuse.”

Indeed. Detention is torture and abuse – and for some, it has led to death.

Eight years ago, after being swept up in an ICE raid, a transgender woman named Victoria Arellano died while detained by ICE in California when officials ignored her pleas for medical assistance. The male detainees who Arellano was housed with rallied to her defense as her health deteriorated and demanded that she be taken to a hospital. Those calls were ignored and she was left to die.

Detaining Arellano with men is not what killed her. In fact, her fellow detainees were her allies and comrades in her unsuccessful fight to survive. When she died from complications related to AIDS, it was because the institution and its officials watched her die a preventable death.

Of course, it is true that transgender women are particularly vulnerable to assault when automatically detained in men’s facilities. Transgender individuals make up only a fraction of the total number of detainees that ICE confines on any given day, but account for 20 percent of confirmed sexual assault cases. If the new ICE guidance does result in transgender women being detained in women’s facilities more regularly, that will help create safer conditions for some.

But it still won’t change the fact that Arellano’s death was not an aberration, but rather a reflection of how our systems of detention and racism work. It is racism, which Ruthie Gilmore defines as “the state-sanctioned and/or legal production and exploitation of group-differentiated vulnerabilities to premature death, in distinct yet densely interconnected political geographies,” that makes some bodies politically exposed to such an untimely and cruel death.

This means that as advocates we must stay vigilant and not settle for system reforms that absolve the system itself of responsibility for harm.

Jessi Lee Jackson, a therapist and Ph.D. student in Buffalo, explains of PREA: “Although some prisoner advocates on the left counted the passage of PREA as a success, the aftermath of PREA demonstrates the risks involved in turning away from the central role of sexual violence in shaping the prison. When advocates play along with state reform efforts, they are often required to legitimate the forms of sexual violence enacted by the state.”

This violence includes the searches, surveillance and isolation of the immigration detention system itself. If we are to keep our community members safe, tinkering with the rules of how they are detained cannot be our end goal. That does not mean we should reject ICE’s reforms and give up on the tasks of keeping people safer while we lock them away. Ending automatic placements based on genitals, limiting forced isolation and prohibiting searches for the sole purpose of observing a detainee’s genitals are all welcome reforms.

But when brave advocates like Jennicet Gutiérrez call us and our government out for our complicity in the brutalization of transgender people, we must support them instead of silencing them. “Our job is to build our movements, to incarnate democracy in our spaces,” Vijay Prashad reminded us at an event at the Riverside Church in Harlem four years ago. In a tragic and moving call to action, Prashad concluded his remarks, “We live in freedom by necessity. We must reshape our world. We must love one another, or die.”

For Arellano, Gutiérrez, Gentili and countless others, we must reshape our world, or people will keep dying. The new ICE guidance is not nearly enough, but if we pay attention and let it challenge us to imagine more robust and transformative changes, it just may be a start.