Discrimination in Parole Hearings Keeps Trans Prisoners Behind Bars, Advocates Say

Rickie Blue-Sky will appear before the California parole board on Wednesday. He has spent the past 32 years in prison for an act that he has always asserted he did not do. This will be his fifth parole hearing. He is now 70 years old.

In 2013, Blue-Sky appeared before the parole board with numerous certificates showing the programs that he had completed as well as 31 pages of support letters. But those accomplishments mattered less than the crime he had been accused of, his continued claim of innocence and, as a trans man, his gender identity.

At that hearing, Michael Abacherli, the deputy district attorney of the San Bernardino District Attorney’s Office, voiced his objection to Blue-Sky’s release. The objection by itself is not unusual, but Abacherli’s argument was. Abacherli stated that he considered Blue-Sky to be a danger to society, tying his assertion of innocence with his gender identity as proof that Blue-Sky posed a threat to public safety.

“Blue-Sky, for whatever reason, denies constantly that she is a woman or a female,” Abacherli said. “It becomes an issue when the denial is so strong that a person doesn’t want to be called a female at all because regardless of what you may represent to others, if you’re a male or a female, that is what you are. Deny it or not. That is what you are. But that strong denial, that refusal to accept what she is, a female, is equivalent to the refusal to accept that she was guilty of a heinous crime.”

The California Supreme Court has ruled that, after a long period of time, factors that cannot be changed — such as the crime and conviction — should no longer be used against a person’s application for parole, especially when the person has demonstrated positive changes behind bars. But, despite Blue-Sky’s ongoing participation in prison programs and his founding of several groups to address concerns of Native American as well as transgender, gender-nonconforming and two-spirit people, the parole board denied his request for parole, stating, “You have failed to demonstrate insight into your propensity to commit such a violent act of aggression and even murder.”

In its decision, the board did not mention Blue-Sky’s gender identity or address the statements made by the deputy district attorney, who in effect argued that one’s gender identity constitutes a reason to deny parole. Do these comments and the board’s failure to interrupt such remarks indicate a more systemic problem of transphobia and trans discrimination in the parole process?

Thirty-Two Years of Building Bonds and Encouraging Hope

In 1983, Rickie Blue-Sky, a 37-year-old member of the Salish tribe from northern Idaho, was arrested in San Bernardino, California, for allegedly killing and dismembering his girlfriend. His arrest made news — in large part because Blue-Sky was a trans man. Local newspaper headlines covered the arrest, preliminary hearings and the 1984 trial, sensationalizing Blue-Sky’s gender identity. One headline read, “Woman-man’s court date delayed.” Others played up Blue-Sky’s gender identity in articles with statements such as, “At that point, the case took a bizarre turn when police discovered the suspect actually is a woman.” Every article from that time period misgenders Blue-Sky.

In a phone call from prison, Blue-Sky told Truthout that his trial attorney had been bombarded with requests from the media. “A murder these days is not news,” he recalled his attorney repeating to him. “But a woman who poses as a man who commits murder is news.”

In November 1984, Blue-Sky was convicted, sentenced to 27 years to life and sent to the California Institution for Women. When he arrived, prison officials debated where to place him.

“They were trying to imply that I was a deviant,” Blue-Sky recalled. “They were trying to ascertain whether or not the women would be safe.” What saved him from being placed in administrative segregation, a form of isolation in which he would have little to no contact with other people, was his walk to the intake office. “Quite a few people said hello to me because they knew me from the county jail. The sergeant noted that no one seemed afraid of me.”

During his 32 years in prison, Blue-Sky has never received a write-up for a physical altercation or been sent to solitary confinement. This is particularly noteworthy given that, in jails and prisons nationwide, trans and gender-nonconforming people are routinely placed in some form of isolation. Some, particularly trans women in men’s prisons, are placed in protective custody, where they are isolated from other people, ostensibly for their own safety. Other trans and gender-nonconforming people are regularly targeted for harassment, humiliation and write-ups that send them to segregation.

Krystal Shelley, who goes by Krys, is a gender-nonconforming person who spent 12 years in California’s women’s prisons. In an essay for the anthology Captive Genders, Shelley recalls being attacked and pepper-sprayed by prison guards, and then sent to segregation simply for trying to walk over to another person. “I turned to see three cans of pepper spray and eighteen correctional officers set to attack me,” Shelley wrote. “They saw me as aggressive and so they used extra force.” Shelley spent two months in isolation before being found guilty; two days later, officers returned to say that Shelley was not guilty, before releasing Shelley from segregation.

In prison, Shelley joined the Two-Spirit Circle, a group that Blue-Sky had started for trans, gender-nonconforming and two-spirit people. There, Shelley found both a mentor in Blue-Sky and community among other members. “It was about building a bond between people,” Shelley told Truthout. “We were building a masculine-bond with other female-born people so we can have understanding.” That sense of community was particularly important in prison, where Shelley and other masculine-identified people were often subject to harassment and abuse by officers.

At the same time, Shelley also credits Blue-Sky with helping Shelley cope with the constant harassment from male officers. Instead of arguing when confronted with officers’ insults, Shelley would instead seek out Blue-Sky. “If I was getting into an argument with someone, I’d head to the chapel [where Blue-Sky worked],” Shelley recalled. “If you could get to Blue-Sky, you can get whatever you need off your chest…. To have someone who relates to me and can understand me, Blue-Sky was extra good for me…. In many ways, he helped with my maturity,” said Shelley, who had been incarcerated since age 17 and was released four years ago.

“Lynn,” who is still on parole and asked that her real name not be used, spent 17 years in prison. By the time she met him, Blue-Sky had already spent nearly two decades in prison. “He had been there for so long,” she told Truthout, “but that didn’t harden him. He gave me the gift of hope, that you don’t lose who you are [even after being in prison for so long].”

As a cisgender woman who is not Native American, Lynn never participated in any of Blue-Sky’s programs. But she recalled that, as she prepared for her parole hearing, Blue-Sky put together a list of programs that would help her, including an eight-month class that he facilitated. Although Lynn was reluctant to enroll in such a lengthy class, Blue-Sky visited her to demonstrate what she would have learned. “He took the time to show me how to ground myself and put my thoughts in one thing,” she said. “He took the time to show me what it was I’d be learning in the class even though I didn’t commit to it. I almost cried.”

When she appeared before the parole board, Lynn reiterated that she did not commit the crime for which she was convicted. She reiterated that her abusive boyfriend, with whom she lived, had killed someone in their house. “But I took responsibility for leaving the person in the house, knowing that my boyfriend was volatile, abusive, jealous and on drugs.”

Lynn was granted parole. “The DA congratulated me on my growth and insight into what I did wrong,” she recalled. “He used that word a lot — insight. They want you to take responsibility for something.”

Blue-Sky has always maintained his innocence, going so far as to fire a parole attorney who attempted to pressure him into admitting guilt so as to increase his chances of parole. He notes that, since 1984, he has participated in prison programs and has started several programs for Native Americans and trans people. But will any of that matter when he appears before the parole board once again?

What Does Gender Identity Have to Do With Parole?

“It’s extremely hard to be granted parole while claiming innocence,” said Kelly Lou Densmore, the staff attorney at TGI Justice Project, an advocacy organization supporting trans, gender-nonconforming and intersex people in the criminal legal system. But, she added, “There’s no connection between insight into the crime and gender identity. These are two completely separate issues.” Even for people who are guilty of the crime for which they were convicted, “gender identity has nothing to do with the crime.”

Furthermore, Densmore emphasized that being trans is “not a refusal to accept his gender identity. [Blue-Sky] is not in denial of his gender identity.”

Densmore filed a complaint with the San Bernardino District Attorney’s Office on behalf of TGI Justice Project, asking that Abacherli be disciplined for such comments and that the district attorney’s office refrain from making such comments at the upcoming parole hearing. The district attorney’s office has not responded to Truthout’s request for comment.

Densmore noted that parole commissioners have the ability to interrupt or stop remarks that are considered irrelevant. During Blue-Sky’s 2013 hearing, the commissioners did not take this action. “The fact that they didn’t interrupt the DA or specifically say, ‘We’re not denying you because of your gender identity,’ means that they did probably consider it,” she said.

TGI Justice Project is now tracking instances of trans discrimination during parole hearings, but it’s too soon to tell how frequently transphobia plays a role in parole determinations. “There’s so little support for imprisoned trans people across the country,” Densmore said. “That’s why we don’t have information about this.”

While no data has been collected on the prevalence of discrimination against trans, gender-nonconforming and two-spirit people in the parole process, anecdotal evidence suggests that it is present. A 2015 survey of nearly 1,200 LGBTQ people in prison, conducted by Black & Pink, a network that supports LGBTQ people behind bars, found that nearly 60 percent of two-spirit people and 50 percent of nonbinary-gender people felt discriminated against during parole hearings.

In 2015, two years after Blue-Sky’s parole hearing, another trans man appeared before the California parole board. Like Blue-Sky, he brought numerous letters of support, including letters of acceptance to transitional housing and violence prevention programs. He had remained free of any violations of prison rules; his last write-up had been 10 years earlier. At the hearing, he took responsibility for his crime and expressed remorse for his actions.

While the Los Angeles deputy district attorney acknowledged that the prison’s psychiatric evaluation classified the person as having a “low-risk of violence,” the deputy district attorney nonetheless opposed his release because of his in-prison hormone treatments. “Going through this transgender process leaves me with some questions as just how the inmate is going to be affording the remainder of her treatment if released,” the deputy district attorney said. “And I want to emphasize which the psychologist also mentioned that the stressor — one of the stressors of her life on the outside will be a transgender.”

Densmore noted that hormone therapy is covered under Medi-Cal, adding, “You’d never argue that this person has diabetes and therefore diabetes is a risk factor.”

Transphobia in prison practices can also affect people’s chances of parole. Mik Kinkead is the director of the Prisoner Justice Project at the Sylvia Rivera Law Project, which works with trans and gender-nonconforming people imprisoned throughout New York State. In early 2015, the organization began offering parole support and assistance.

Kinkead told Truthout about one client, a trans woman, who was placed in a men’s prison. She was sexually assaulted and placed in protective custody, where she was unable to access the prison’s programs. The following year, she appeared before the parole board, bringing numerous letters of support. According to the hearing transcript, the parole board commissioners noted the woman’s lack of participation in programs. They also expressed confusion because the letters used the woman’s chosen name rather than the legal name under which she was incarcerated. Ultimately, the parole board denied her application because of her lack of program participation.

The next year, the woman was transferred to a minimum-security prison. There, she was allowed out of isolation, and was able to access various programs. She also became a GED tutor. But these accomplishments did not impress the parole board when she appeared before them the following year; they denied her application again, this time stating that she had not shown a significant change in her behavior.

Another of Kinkead’s clients, also a trans woman, was sent to Attica, a men’s prison notorious for violence. Fearing sexual violence, she asked to be placed in protective custody. One year later, she asked to be allowed into general population. The prison refused. She remained in isolation, where she had no access to programs. When she appeared before the parole board, she too was denied because of her lack of program participation.

“How am I supposed to access programs if I’m in protective custody?” she asked. Board commissioners told her that this was outside of their purview.

“There’s a movement of prisons and parole boards merging together,” said Kinkead, noting that New York’s parole board is part of its overall corrections system. “But they don’t communicate. So in this instance, the board could have asked that she be transferred to another prison where she could safely be out of protective custody and be able to access programs. Instead, they told her it wasn’t in their purview.”

Blue-Sky’s Upcoming Parole Hearing

“I’m cautiously optimistic,” Blue-Sky told Truthout, days before his parole hearing. As he and Densmore both noted, and as the parole board acknowledged in the 2013 hearing, factors that cannot be changed — such as the conviction — should no longer be held against a person during a parole hearing, especially if the person has a history of positive programming and actions while imprisoned.

Blue-Sky has a long history of positive programming. Shortly after entering prison, he helped start a Native American religious program. At Valley State Prison, he began the Two-Spirit Wellness Circle through the Native American chaplaincy to help lesbian and trans people connect with their spiritual identities and support each other. Following Valley State’s conversion to a men’s prison, he and others from the Wellness Circle began a trans support group at the Central California Women’s Facility.

“My mother told me, ‘There’s a mission for you,'” he said. “I found it in prison. My mission is to help others find their spiritual identity.” He plans to continue that mission outside of prison as well. He hopes to use his paralegal certification to help both TGI Justice Project and the California Coalition for Women Prisoners continue fighting for the rights of trans and gender-nonconforming people in prison.

“Once upon a time, I was pretty arrogant,” he reflected in the seconds before his phone call was cut off. “Helping people has taught me and I’ve advanced in my humility. That’s the main thing.”