Cruel and Unusual: Reforming Carceral Systems to Protect and Affirm Transgender and Gender-Diverse Communities

Abstract

Transgender and gender-diverse communities are disproportionately incarcerated in the USA. Incarcerated gender minority populations are detained within carceral systems constructed around a cisgender (gender identity matches sex assigned at birth) binary (only male and female identities recognized) understanding of gender. This leads to marginalizing experiences while perpetuating the extreme vulnerability individuals experience in the community. In order to address this cruel and unusual experience, carceral systems should undergo “whole-setting” reforms to protect and affirm transgender and gender-diverse populations. This includes ensuring access to gender-affirming clinical care that aligns with community health standards recommended by medical professional associations. Implementing gender-affirming reforms reduces security issues and will likely improve health outcomes providing mutual benefit for both correctional staff and gender minority populations. Given the current divisive political and social environment for gender minority populations in the USA, evidence-based person-centered reforms in corrections are needed now more than ever.

The detention of individuals experiencing incarceration in the USA has evolved since the inception of jails and prisons in the late eighteenth century [1]. As greater numbers of individuals have been incarcerated, accelerated by the epidemic of mass incarceration, carceral institutions have been largely constructed around a strict cisgender (gender identity matches sex assigned at birth) binary (only male and female identities recognized) classification system [2]. Every aspect of an individual’s life is impacted while incarcerated, including their living quarters, social interactions, and access to healthcare. For transgender and gender-diverse populations who frequently navigate social systems designed without consideration for their needs, the US carceral system has been shown to be among the most traumatic and marginalizing experiences that these already vulnerable communities face [3]. While some steps have been taken to address the most harmful aspects of incarceration for gender minority individuals [4, 5], a fundamental restructuring of the US carceral system is required to ensure that all incarcerated individuals, regardless of gender, are safe, healthy, and affirmed.

Although transgender and gender-diverse individuals represent just 0.05% of the US adult population [6], they are disproportionately incarcerated, particularly those of color who are incarcerated at ten times the rate of the general population [7]. During incarceration, transgender and gender-diverse individuals report a range of challenges, from sexual and physical violence to barriers accessing healthcare services [4, 8]. The 2003 Prison Rape Elimination Act provided carceral systems with a number of tools, and requirements, to reduce sexual assault among incarcerated populations, particularly vulnerable groups like gender minority populations [9]. However, its implementation has been variable and resulted in mixed impact for transgender and gender-diverse populations [10]. Positive impacts include the recognition of transgender individuals in these spaces and efforts to reduce sexual assaults within correctional facilities. Negative impacts include the forced segregation and isolation of individuals who reveal their transgender identity among other harmful policy developments [11]. The treatment of gender minority individuals experiencing incarceration should go beyond the bare minimum of preventing rape and focus on the wellbeing of these vulnerable communities to ensure that incarceration does not equate to cruel and unusual punishment solely because an individual’s identity falls outside the gender binary.

Hence, reforming the carceral system requires a “whole-setting” approach that should engage transgender and gender-diverse populations in rethinking the incarceration experience [12]. The training of correctional staff has been shown to be effective in improving the experience of gender minority individuals while reducing the frequency of security issues by populations who feel more protected and affirmed [13]. A key part of ensuring positive interactions between staff and detainees is the staff’s use of affirming language, including using a person’s preferred names and pronouns in a way that minimizes the potential for differential treatment or discrimination by staff or other incarcerated persons. Additionally, housing decisions should be made on an individualized basis through a formalized, person-centered process that allows individuals to express their preferences without fear of marginalization, while taking into account the contextual resources available to the detention facility, to ensure each individual is as safe and affirmed in their identity as possible.

There is also a need for incarcerated individuals who have initiated gender-affirming care in the community to have that care continued upon consent. Furthermore, carceral systems should ensure that gender minority individuals have access to a gender-affirming clinical care provider who can manage changes in gender-affirming clinical treatment, including individuals who want to initiate gender-affirming clinical care for the first time [5]. As clinical care guidelines and medical professional recommendations have solidified around improving the accessibility of gender-affirming clinical care, correctional administrators should be sure not to run afoul of the constitutional protections from cruel and unusual denial of healthcare services enshrined in the eighth amendment and codified through the Estelle vs. Gamble decision [14]. Given that transgender and gender-diverse people experience a high burden of poor health linked to stigma-related stress, gender-affirmative primary care, mental health, and substance use treatment services should be made available in accordance with the needs and identities of incarcerated transgender and gender-diverse people [15]. Furthermore, since transgender and gender-diverse individuals may lack access to affirming healthcare services, housing and instrumental support post-incarceration, individualized discharge planning services should be made available to support this population in order to facilitate community re-entry. [4]

To ensure that the incarceration experience is not cruel and unusual, correctional administrators are tasked with implementing a “whole-setting” approach to protect and affirm transgender and gender-minority populations.[12] As the US carceral system has evolved to reflect the social understanding of gender, a more inclusive organizational model of gender minority identities is long overdue.