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  • Gary Carnivele

LGBT Asylum Seekers Deserve Better than American Interment Camps

JAILS ARE TRAUMATIZING AND OFTEN DANGEROUS PLACES, ESPECIALLY FOR lesbian, gay, bisexual, and transgender people, and anyone who is gender nonconforming. In a country that incarcerates more of its people than any other in the world, LGBT people are more likely to end up behind bars, and more likely to face abuse behind bars. Being LGBT in a US jail or prison often means daily humiliation, physical and sexual abuse, and fearing it will get worse if you complain. Many LGBT people are placed in solitary confinement for months or years just because of who they are. Fortunately, advocates across the country are working to change this. Today, there are new national standards, legal developments, and other new tools—as well as many allies beyond the LGBT community who are combating mass incarceration and abuse behind bars—that make this a better time than ever to press for change. 

LGBT PEOPLE ARE MORE LIKELY TO HAVE CONTACTS WITH THE CRIMINAL JUSTICE SYSTEM While statistics about criminal justice and LGBT people in general are lacking, we know that some groups of LGBT people are disproportionately likely to come into contact with the criminal justice system, particularly LGBT youth and transgender people. A history of bias, abuse, and profiling toward LGBT people by law enforcement has contributed to disproportionate contacts with the justice system.1 Moreover, while people may end up in jail or prison for many reasons, people who are poor are more likely to end up behind bars, and LGBT people are disproportionately poor.2 

According to the National Transgender Discrimination Survey, 16% of transgender adults have been in a prison or jail for any reason. This compares with 2.7% of all adults who have ever been in prison,3 and 10.2% of all adults who have ever been under any kind of criminal justice supervision, including probation.4 Transgender people, especially poor people and people of color, report facing disrespect, harassment, discriminatory arrests, and physical and sexual assault by police at very high rates.5 

While an estimated 4-8% of youth are LGBT, a major study of youth in juvenile detention found that as many as 13-15% are LGBT.6 Family rejection, homelessness, and hostility in the foster-care and other safety-net systems often serve to funnel LGBT youth into the juvenile justice system. Even though LGBT youth are often the targets of violence and abuse in schools, a 2010 study in the medical journal Pediatrics found that LGBT youth were up to three times more likely to experience harsh disciplinary actions in school than their non-LGBT counterparts.7 

LGBT PEOPLE ARE ESPECIALLY VULNERABLE IN CUSTODIAL SETTINGS The United States incarcerates people at the highest rate of any nation in the world, with prison and jail populations over the last thirty years growing at ten times the rate of the US population.8 Nearly 7 million adults are under correctional supervision in the US today, with more than 2.2 million of them in prisons and jails.9 In addition, hundreds of thousands are held in juvenile prisons and immigration detention each year. While conditions in jails and prisons vary, overcrowding, physical and sexual violence, and heavy reliance on solitary confinement are common. The Constitution guarantees that persons deprived of their liberty must be provided with adequate food, shelter, safety, and medical care, yet these standards are often not met. 

In these settings, LGBT people are especially vulnerable to abuse and mistreatment, by both staff and other prisoners. More than 200,000 youth and adults are sexually abused in prisons, jails, and juvenile detention facilities each year according to federal estimates.10 In the same federal survey, prisoners who identified as “non-heterosexual” were 3 times as likely to report sexual abuse.11 A study of California prisons found that transgender women in men’s prisons were 13 times as likely to be sexually abused as other prisoners.12 Just as in any other setting, sexual abuse behind bars can lead to post-traumatic stress disorder, depression, substance abuse, HIV, and other infections that can take a heavy toll on survivors, their families and communities, and public budgets. 

LGBT prisoners also face many other forms of mistreatment behind bars. Many face constant humilia- tion and degradation from staff and prisoners alike. Staff may blame them for their own victimization, believing they are “flaunting themselves,” and refusing to take grievances or reports of abuse seriously. If their vulnerability is recognized at all, it may be by placing them in indefinite solitary confinement, with little or no activity or human contact—conditions that can cause serious psychological harm, and which medical experts have found to amount to torture. In other cases, LGBT prisoners’ requests for temporary protective custody are ignored. 

Transgender and gender nonconforming people can face additional forms of mistreatment. Though practices are changing, many facilities still house transgender people with men or women strictly according to their genital anatomy—often increasing their vulnerability to abuse. Facilities may deny them access to gender-appropriate clothing or grooming items, and punish them for attempting to express their gender identity. In addition, some facilities still place decisions about the medical needs of transgender people in the hands of administrators rather than health care providers, adopting blanket policies against providing hormone therapy or other transition-related care. 

NOW IS A BETTER TIME THAN EVER TO DO THIS WORK Right now, jails, prisons, and other custodial agencies around the country are looking at developing policies related to LGBT people, many for the first time. Perhaps the biggest reason is the federal Prison Rape Elimination Act (PREA). Passed by Congress in 2003, this law led to the publication in 2012 of the National Standards to Prevent, Detect, and Respond to Prison Rape, known as the PREA Standards. These comprehensive standards include several provisions that direct agencies to pay particular attention to protecting LGBT and gender nonconforming individuals, as well as those with intersex conditions. Jails and prisons are strongly incentivized, and in some cases required, to comply with these standards. Starting in 2014, some agencies could face financial penalties for non-compliance. 

Agencies are also noticing that we are starting to win in court. There is now a growing body of court decisions saying that many ways LGBT people have been treated in jails in the past may violate the Constitution or other legal standards. For example, in recent years, there have been several cases in which courts have found the law was violated by denying transition-related health care for transgender prisoners. While the law in some of these areas is still developing, many agencies are taking notice. 

Finally, because there is more of this advocacy work going on around the country, jails and prisons are more receptive to our message. LGBT advocates are increasingly taking this on as an important issue that affects particularly vulnerable members of our communities. Other advocates working on prison reform issues are increasingly recognizing LGBT folks as a key population in need of protection. At the same time, jails and prisons are starting to hear about other agencies adopting the policies in this toolkit, and these issues seem less foreign for them. Some agencies have started developing policies on their own initiative, even in areas where they aren’t required to by the PREA Standards. 

LGBT ADVOCATES CAN MAKE A DIFFERENCE This is a resource to help introduce LGBT and allied activists to a range of issues that affect LGBT people behind bars, and prepare you to advocate for policies that will protect the safety, health, and rights of all LGBT people who may find themselves imprisoned. The bulk of this toolkit is focused on advocacy to improve conditions for LGBT people in jails, prisons and other confinement facilities. While taking immediate actions to protect LGBT people from some of the worst harms they face behind bars is critical, we believe reforming jails and prisons can never be a complete solution. As Attorney General Eric Holder has recently stated, we believe that too many people go to too many prisons for far too long in the US—at tremendous human, and fiscal, cost to all of us. Chapter 6 of this toolkit offers some suggestions for doing the important work of combating mass incarceration. 

Kinds of Incarceration facilities

• Immigration detention: Immigration detainees are not being held because they’ve been charged with any crime, but because the government is determining whether or not to deport them. The main purpose of this form of civil detention is to ensure participation in court proceedings. Detainees are housed in a mix of federal facilities, for-profit detention centers, and local county jails. Detainees may be held for just a few days or for many months or years. Over 400,000 people are held in immigration detention each year, with an average of 34,000 held every day.4 

UNDERSTANDING PREA AND CURRENT STATE OF THE LAW 

LGBT people in jails, prisons, and juvenile facilities, like all other incarcerated people, have specific civil rights under the U. S. Constitution, state and federal statutes, and from the recently adopted PREA regulations. By understanding how these rights apply to LGBT people, you will be in a better position to advocate stronger policies and procedures concerning LGBT people that protect for their safety and their civil rights. 

PREA Overview 

The PREA Standards are a comprehensive set of federal rules that address all aspects of a facility’s operations as they relate to preventing, detecting, and responding to abuse. The Prison Rape Elimina- tion Act of 2003 required the US Department of Justice to develop these standards. The Department of Justice issued its PREA Standards in 2012, and President Obama has ordered the Department of Homeland Security, the Department of Defense, and other federal agencies that hold people in detention to adopt their own standards. Differing versions of the standards apply to different types of facilities, and some facilities that hold people involuntarily (such as psychiatric hospitals or civil commitment facilities) are not covered. 

Right to Safety and Protection from Violence 

Prisons and jails must protect prisoners from violence at the hands of other prisoners, as well as prison staff and correctional officers. If prison officials do not uphold this duty to protect, they have violated the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment. This principle was first established by the U.S. Supreme Court in the case of a transgender woman who was repeatedly sexually assaulted and beaten by other inmates. In that case, the Supreme Court stated that prison officials may be liable for such abuse when “the official knows of and disregards an excessive risk to inmate health or safety.”6 The Supreme Court also said, that an excessive risk of abuse can be established when a prisoner belongs to “an identifiable group of prisoners who are frequently singled out for violent attack by other inmates,” such as transgender people.7 When officials know that a person is LGBT and therefore vulnerable, failure to take adequate steps to protect them from abuse, can violate the Constitution.8 

Medical Care 

Prisons are required to provide inmates with adequate health care to meet their medical needs; failure to do so constitutes cruel and unusual punishment under the Eighth Amendment of the U.S. Constitu- tion.9 In order to be considered adequate, medical treatment in prisons must be based on medical considerations, rather than financial or political factors,10 and cannot be blatantly inappropriate.11 

Courts have consistently stated that gender dysphoria (GD)—formerly known as gender identity disorder (GID)12—is a serious medical condition that requires treatment under the Eighth Amendment,13 meaning that prisons must provide transgender people who are diagnosed with GD with adequate medical treatment, consistent with accepted medical standards.14 

Transgender inmates have clearly established constitutional rights with regard to GD treatment. Inmates who wish to be evaluated for an initial GD diagnosis should be seen by a doctor or medical expert with some specialized expertise in treating transgender people.15 Treatment decisions regarding transgender inmates must be made based on individual medical needs. A facility cannot have a blanket policy that prohibits specific types of treatments, such as an absolute ban on hormone therapy or surgery.16 Additionally, prisoners who are already undergoing hormone therapy for GD cannot be abruptly taken off such treatment unless there is a clear medical reason to do so.17 In some cases, courts have also held that prisoners can establish a medical need to be treated in a gender-appropriate manner with respect to personal pronouns, or access to items such as bras or cosmetics, where that need is supported by a health care provider.18 

Prison officials cannot deny certain GD treatments based solely on the argument that such treatments would increase the risk of violence towards the inmates receiving the treatments. Several courts have outright rejected these types of arguments,19 while other courts have stated that security concerns must be balanced against medical needs, and have a real basis.20 

Solitary Confinement and Other Isolating Conditions 

Often, jail or prison officials will respond to the vulnerability of an LGBT inmate, by placing them in solitary “protective custody”—effectively punishing them for being a potential victim. Officials may segregate LGBT inmates as a temporary measure when specific circumstances demand, such as upon admission while determining an appropriate long-term placement, or immediately following an assault and during its investigation.21 Whether ongoing segregation of a vulnerable inmate is permissible depends on the purpose of segregation, the existence of feasible alternatives, the harshness or restrictiveness of conditions, its duration, and how frequently the continued appropriateness of segregation is reviewed.22 Institutions may not impose a blanket policy of automatically and indefinitely segregating all LGBT individuals without regard to reasonable alternatives or individual circumstances.23 Some courts have ruled that the use of solitary confinement or other isolating practices with juveniles is unconstitutional.24 

Searches and Privacy 

In general, jail and prison officials have wide latitude to conduct personal searches to identify weapons or contraband. However, searches must be conducted for a legitimate reason—not simply to harass an LGBT prisoner—and strip searches should be conducted out of view of other prisoners except in extremely said how this rule applies to transgender people. 

Certain highly personal information such as one’s LGBT status or HIV status is protected by the Constitution, even in prison.27 This means that unless a prisoner has disclosed this information themselves, staff may not disclose it to other prisoners without a legitimate reason.28 

Equal Treatment in Visitation and Other Opportunities 

Courts have held that facilities may not exclude LGBT individuals from prison employment or programs simply because of their identity, absent some legitimate reasons.  Some courts have also held that facilities may not ban visitation by same-sex partners, completely prohibit same-sex hugging or kissing between inmates or prohibit inmates from receiving LGBT publications.  The Supreme Court has ruled that prisoners have the right to marry while behind bars and this holding should extend to same-sex couples, at least in those jurisdictions where they may otherwise marry. 


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