Free CeCe McDonald

VICTORY: Incarcerated Transgender & Gender Non Conforming People & Allies Successfully Campaign For New Polices To End Prison Rape & Abuse

A culmination of 9 years of work, the Sylvia Rivera Law Project marks the release of the U.S. Department of Justice’s National Standards to Prevent, Detect and Respond to Prison Rape as a significant victory. The Department of Justice’s new standards come in response from recommendations from the Sylvia Rivera Law Project -including those of incarcerated trans and gender non conforming members- and allied organizations.

These standards apply to all federal facilities as well as all prisons, jails, police holding cells, juvenile detention centers, and community confinement facilities that receive federal funding.  All federal facilities must comply immediately and other facilities must comply within one year. 

While a major victory, one incredible failure of the standards is to cover immigration detention facilities, which means many trans and gender non conforming people are still vulnerable to the forms of violence that these standards seek to address.  Today President Obama issued a memorandum stating the Department of Homeland Security and the Department of Health and Human Services are required to develop their own standards for the implementation of PREA over the next eight months.   Despite the implementation of these standards trans and gender non conforming immigrant communities continue to navigate intensifying policing and detention, as seen with the implementation of Secure Communities.

The standards address several problems transgender people, as well as those with intersex conditions, face, including:

• Requiring a case-by-case consideration for housing in a male or female facility that is not based on genital status, meaning more trans women will be housed with other women.
• Limiting the use of isolating “protective custody” that can amount to torture.
• Limiting the use of segregated LGBTI units that are often treated as a quick fix but can lead to prolonged segregation and denial or programming for individuals.
• Requiring staff training for professional communication with and treatment of transgender and gender nonconforming inmates and those with intersex conditions to aid in assessing inmate vulnerabilities to sexual abuse.
• Banning the search or physical examination of transgender inmates and those with intersex conditions solely for determining their genital status.
• Minimizing stigma and the threat of abuse from staff by disallowing dedicated LGBTQI units and facilities.
• Requiring facilities to have multiple channels for reporting abuse without placing a time limit on when inmates can file grievances.

“We believe the final rule’s prohibition on genital searches for the sole purpose of ‘determining’ an individual’s genital status is a significant victory,“ said Staff Attorney Elana Redfield.  “We are especially pleased with the requirement that agencies make individualized assessments about the placement of transgender, gender non-conforming and intersex individuals, and prohibiting blanket policies that determine placement based solely on genital status.”

As an organization, the Sylvia Rivera Law Project provided four rounds of comments to different proposed standards over the past nine years.  These were informed by incarcerated ` members of the SRLP’s Prisoner Advisory Committee many of whom also sent in individuals comments.  The Sylvia Rivera Law Project remains adamant that correctional institutions recognize the widespread feelings of presently and formerly incarcerated LGBTI individuals that in many cases, LGBTI-specific housing such as the former “gay housing” at Rikers Island, is often a safer option.

“PAC members’ contributions were undoubtedly vital to the ultimate adoption of regulations responsive to the realities of incarceration,” said SRLP Equal Justice Works Fellow Chase Strangio.   “The final standards promulgated by DOJ adopted many suggestions put forth by PAC members and we are hopeful that they will provide some leverage to hold correctional institutions accountable for the abuses suffered by all individuals held involuntarily in detention.”

In New York, the Sylvia Rivera Law Project will continue to advocate with the State Department of Corrections and Community Supervision and the City Department of Corrections to ensure compliance with the new rules.  This step is an important effort in reforming systems of incarceration that target, isolate and expose our communities to violence and death.  As we hold this rule as victory, we also recognize the limitations of reform in correctional systems that are in place to maintain systems of hierarchy, capitalism, violence and racism that formed the basis for slavery, convict-leasing, Jim Crow legal frameworks and ultimate provide the backdrop for many of our constitutional frameworks. 

“It is by balancing the tension of victory and sadness that we hope to continue to build alternative visions for justice that center the histories of transgender, gender non-conforming and intersex people of color, immigrants and low-income people,” said Strangio.

Chase Strangio, Equal Justice Work Fellow

212.337.8550 ext 302

chase@srlp.org