Until 2016, the National Crime Victimization Survey (NCVS) lacked adequate data on gender identity, a prerequisite for measuring and understanding the victimization of transgender persons. The measure newly introduced in that year asked about sex assigned at birth and offered transgender as a response option to the question about gender identity. Although there continues to be no measure of nonbinary identity and transgender persons appear to be undercounted in the NCVS,1 this is a major improvement. In their analysis, Flores et al.2 were the first to leverage the newly available measure by pooling the 2017–2018 NCVS data, and they described rates of personal and household victimization of transgender persons nationally.
Given the quality and the weight of the NCVS in academic and policy conversations around crime and public safety, the study by Flores et al. was timely and valuable. They found that transgender persons reported personal victimization at a rate four times higher than cisgender individuals and twice the rate of household property victimization. Only about half of victimizations were reported to law enforcement. These findings will serve as a springboard as I highlight the endemic victimization of transgender persons in and by the criminal legal system ostensibly designed to provide them, like all citizens, with protection and safety.
According to national estimates from the 2011–2012 National Inmate Survey, the largest-ever survey of incarcerated individuals in the United States, 40% of transgender persons incarcerated in state and federal prisons have been sexually victimized over the past year (or since admission to the facility, if they were incarcerated for < 12 months) by another incarcerated person or facility staff member, as compared with 4% of their cisgender counterparts.3 This disparity in the prevalence of victimization is many times higher than the disparity in the NCVS community-based sample reported by Flores et al.2 In jails, sexual victimization of transgender persons was estimated at 27%, in comparison with slightly more than 3% among cisgender persons.
In community samples, rates of victimization are high but much lower than in jails and prisons. The largest and most reliable source of self-reported data on transgender persons in the community is the 2015 US Transgender Survey.4 Among the survey participants who reported having been incarcerated in jail, prison, or juvenile detention in the year preceding the survey, 20% were sexually assaulted by facility staff or other incarcerated individuals, and 23% were assaulted physically. When asked about victimization in the community, 13% reported having been physically attacked in the past year, whereas 10% were assaulted sexually. Rates are consistently higher among transgender persons of color and those involved in the underground economy.
These figures unequivocally depict American jails and prisons as much more dangerous spaces than the community. Yet, institutions of the criminal legal system increase the risk of victimization in the community as well, as police and other law enforcement agencies engage in practices similar to those that take place inside jails and prisons.5
In the US Transgender Survey sample of 27 715 participants, 40% reported having interacted with police or other law enforcement officers in the past year.4 Of these participants, 58% (who also reported that officers thought or knew they were transgender) reported mistreatment or harassment by police, ranging from misgendering to sexual assault. Furthermore, 57% of the participants reported that they were somewhat or very uncomfortable asking the police for help if they needed help. One third of Black transgender women who interacted with law enforcement officers who thought or knew they were transgender reported that officers assumed they were sex workers.
These findings are devastating for public health in general and transgender health specifically. Because of high rates of bias-motivated violence, discrimination, and barriers in accessing adequate health care, transgender persons are at an increased risk of poor mental health.6 At the same time, incarcerated persons with psychiatric disorders are at higher risk of being victims of crime and suicide inside jails and prisons.7 It is for these reasons that the transgender population depends perhaps more than any other population on protection and care while incarcerated, yet it appears to receive the least of both. Even though prisons are the only places with a legal mandate to provide health care, they are notorious for delivering substandard care, and this is especially the case for transgender persons, who rarely have access to gender-affirming treatments by adequately trained medical personnel.8
Victimization in jails and prisons also has consequences for recidivism by reducing the ability of formerly incarcerated individuals to successfully reintegrate into the community after serving time behind bars.7 It entraps transgender persons in the revolving door of incarceration as they contend with the weight of trauma and associated psychological distress, often left untreated because of low rates of health care coverage9 in comparison with cisgender individuals. Transgender persons may also avoid medical settings, where they are often exposed to prejudice, disrespectful behavior, and inadequately trained medical professionals, among other barriers.6
Moreover, victimization and neglect send a political message when violence is motivated by hate or bias and when it predominantly takes place in public institutions. The message loudly conveys that the lives of transgender persons and their status as citizens in a democratic society matter less. It should thus be no surprise that transgender victims avoid seeking help from public institutions essential to their well-being, whether law enforcement institutions or hospitals.10
In addition to the physical victimization examined by Flores et al., transgender persons are exposed to less obvious and insidious forms of institutional mistreatment that underlie individual acts of bias-motivated violence. The role of the criminal legal system must be considered more broadly within what sociologists have described as legal violence, “the normalized but cumulatively injurious effects of the law.”11(p1380) In a similar vein, law professor Dean Spade used the term administrative violence to describe the harmful impact of “purportedly banal and innocuous daily administration of programs, policies, and institutions.”12(p73) Although these forms of violence cannot be easily measured, their effects are wide-ranging and profound, and without them more obvious forms of physical and psychological violence would be much less likely. We must invest in research agendas that consider these institutional and individual forms of violence as connected and mutually dependent.
A consequential instance in which administrative violence meets physical force is at the point of gender classification in jails and prisons; this is where administrative violence sets the stage for other forms of violence.12 Most jails and prisons assign incarcerated transgender persons according to sex assigned at birth.13 This practice continues despite the 2003 Prison Rape Elimination Act guidelines, which stipulate that housing and programming decisions involving transgender and intersex persons cannot be based solely on genital status and that facility staff must give serious consideration to the individuals’ views regarding their safety. Implementation of these guidelines is rare and falls far short of protecting incarcerated transgender persons. The continuing practice of assigning transgender persons to housing facilities on the basis of external genitalia or sex assigned at birth has horrific consequences.14 A study in California showed that the prevalence of sexual assault among transgender women housed in a prison for men was 13 times greater than the rate among cisgender men.15
But even if gender classification and housing decisions in jails and prisons start to change, that can only be a relatively small step forward. These institutions will continue to be infused with harmful and consequential binary conceptions of gender and sexuality that devalue individuals who do not fit dominant norms around what it means to be a man or a woman. These practices are especially harmful to poor and Black transgender persons who have to contend with the intersecting disadvantage of transphobia and structural racism inherent to carceral institutions.8
This violence takes place in a country where the incarceration rate among transgender persons is at least twice the rate of incarceration in the general population and several times higher among poor and transgender persons of color.4 With this context in mind and the staggering rates of violence that clearly show how jails and prisons make transgender persons even less safe than in the community, we must ask whether incarceration constitutes cruel and unusual punishment that violates their fundamental human rights. As there continues to be no structural change and little accountability for institutions that expose transgender lives to extreme rates of social suffering, is it reasonable to expect that the same system will create and enforce fair and effective solutions to the crisis of its own making?
ACKNOWLEDGMENTS
I thank kristen kendrick, Jody Miller, Max Osborn, and Vanessa Panfil for valuable comments on the original version of the article and Katherine Bright and Lauren Wilson for research collaborations that helped shape the ideas presented here.
CONFLICTS OF INTEREST
The author declares no conflicts of interest.
REFERENCES
- 1.Brown A.About 5% of young adults in the US say their gender is different from their sex assigned at birth. 2023. https://www.pewresearch.org/short-reads/2022/06/07/about-5-of-young-adults-in-the-u-s-say-their-gender-is-different-from-their-sex-assigned-at-birth
- 2.Flores AR, Meyer IH, Langton L, Herman JL. Gender identity disparities in criminal victimization: National Crime Victimization Survey, 2017–2018. Am J Public Health. 2021;111(4):726–729. doi: 10.2105/AJPH.2020.306099. [DOI] [PMC free article] [PubMed] [Google Scholar]
- 3.Beck AJ, Merzofsky M, Caspar R, Krebs C. Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12. Washington, DC: US Department of Justice; 2013. [Google Scholar]
- 4.James SE, Herman JL, Rankin S, Keisling M, Mottet L, Anafi M. The Report of the 2015 US Transgender Survey. Washington, DC: National Center for Transgender Equality; 2016. [Google Scholar]
- 5.Ritchie AJ. Invisible No More: Police Violence against Black Women and Women of Color. Boston, MA: Beacon Press; 2017. [Google Scholar]
- 6.Hsieh N, Shuster SM. Health and health care of sexual and gender minorities. J Health Soc Behav. 2021;62(3):318–333. doi: 10.1177/00221465211016436. [DOI] [PubMed] [Google Scholar]
- 7.Schnittker J, Massoglia M, Uggen C. Prisons and Health in the Age of Mass Incarceration. New York, NY: Oxford University Press; 2022. [Google Scholar]
- 8.Baćak V, Thurman K, Eyer K, et al. Incarceration as a health determinant for sexual orientation and gender minority persons. Am J Public Health. 2018;108(8):994–999. doi: 10.2105/AJPH.2018.304500. [DOI] [PMC free article] [PubMed] [Google Scholar]
- 9.Bolibol A, Buchmueller TC, Lewis B, Miller S. Health insurance coverage and access to care among LGBT adults, 2013–19: study examines health insurance and access to care among LGBT adults. Health Aff (Millwood). 2023;42(6):858–865. doi: 10.1377/hlthaff.2022.01493. [DOI] [PubMed] [Google Scholar]
- 10.Wirtz AL, Poteat TC, Malik M, Glass N. Gender-based violence against transgender people in the United States: a call for research and programming. Trauma Violence Abuse. 2020;21(2):227–241. doi: 10.1177/1524838018757749. [DOI] [PubMed] [Google Scholar]
- 11.Menjívar C, Abrego LJ. Legal violence: immigration law and the lives of Central American immigrants. Am J Sociol. 2012;117(5):1380–1421. doi: 10.1086/663575. [DOI] [Google Scholar]
- 12.Spade D. Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law. Durham, NC: Duke University Press; 2015. [Google Scholar]
- 13.Malkin ML, DeJong C. Protections for transgender inmates under PREA: a comparison of state correctional policies in the United States. Sex Res Soc Policy. 2019;16(4):393–407. doi: 10.1007/s13178-018-0354-9. [DOI] [Google Scholar]
- 14.Ledesma E, Ford CL. Health implications of housing assignments for incarcerated transgender women. Am J Public Health. 2020;110(5):650–654. doi: 10.2105/AJPH.2020.305565. [DOI] [PMC free article] [PubMed] [Google Scholar]
- 15.Jenness V, Maxson CL, Matsuda KN, Sumner JM. Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault. Irvine, CA: Center for Evidence-Based Corrections, University of California, Irvine; 2007. [Google Scholar]