Queer Lockdown: Coming to Terms with the Ongoing Criminalization of LGBTQ Communities

The threat of sexual abuse and violence are horrible realities for all people living in jails and prison. Research shows that prisoners who are gay, lesbian, or transgender—or perceived to be—are at a higher risk for abuse and trauma in prison, simply because they are queer. A report issued in 2001 by Human Rights Watch, No Escape: Male Rape in U.S. Prisons,¹ charges that state authorities are responsible for widespread prisoner-on-prisoner sexual abuse in U.S. men’s prisons.² Human Rights Watch warns that by failing to implement reasonable measures to prevent and punish rape—and, indeed, in many cases, taking actions that make sexual victimization likely—state authorities permit this physically and psychologically devastating abuse to occur.³

Apart from being targeted for abuse, transgender prisoners face discrimination, harassment, and abuse above and beyond that of the non-trans population. The findings in No Escape indicate that certain prisoners are targeted for sexual exploitation the moment they enter a correctional facility: their age, looks, sexual orientation, gender expression, and other characteristics mark them as candidates for abuse.⁴ In 2007, the Sylvia Rivera Law Project (SRLP) issued, “It’s War in Here: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”⁵ In addition to illustrating the cycles of poverty and discrimination that result in the criminalization of transgendered people in New York State prisons,⁶ the report documents the widespread harassment, physical and sexual abuse, discrimination, and violence that transgender, intersex, and gender non-conforming people face inside state custody.

Even for those willing to come forward, it is surprisingly difficult for an incarcerated individual to prove rape in prison. Consider the story of Roderick Johnson, a Navy veteran and gay man incarcerated in Texas for parole violations stemming from non-violent crimes. Johnson was given the female name of “Coco” and forced into sexual slavery and raped repeatedly for a period of 18 months by prison gangs in the Allred Unit, a Texas prison.⁷ Despite begging officials seven times in writing to move him to protective housing, they refused, saying that his claims could not be corroborated. Officials even suggested that because he was gay he might be enjoying the rapes.⁸

Mr. Johnson filed suit in Federal Court in Texas claiming “deliberate indifference” to his health and safety under the Eighth Amendment of the U.S. Constitution.⁹ Despite testimony from prison gang members corroborating the abuse, a Texas jury refused to hold six prison officials accountable. A juror noted that he didn’t think there was enough evidence of the assaults, stating that “[h]e probably was raped, but he never came out with a rape test.”¹⁰ The Johnson case suggests that the deliberate indifference standard¹¹ will be difficult to meet for plaintiffs, especially those at ongoing risk while incarcerated. Queer and transgender prisoners are singled out for repeated sexual abuse within a dehumanizing system that relies on power and control to maintain order within its walls.

Correctional facilities have no clear standards for housing prisoners that are transgender, and the failure to create a thoughtful and uniform accommodation standard contributes to the harsh conditions that they endure. U.S. correctional facilities are sex-segregated, and they house prisoners according to their birth-assigned sex or genitalia.¹² Transgender women who live and identify as women but were identified as male at birth are generally placed in men’s facilities, where they are frequent and visible targets for discrimination and violence, and are subject to daily refusals by correctional officers and other prisoners to recognize their gender identity.¹³ Male-to-female transgender prisoners (MTFs) rapidly become the targets of frequent sexual abuse.¹⁴

As for female-to-male transgender people [FTMs], “while they don’t face the same type of violence [from fellow prisoners], they face a lot of oppression on the part of guards,” explains Judy Greenspan, cofounder of the Trans/Gender Variant in Prison Committee (TIP). “When they’re strip-searched, many FTMs who have had their breasts removed or take hormones are put on display. It’s psychological brutality. . . . They’re demonized.”¹⁵

1. Joanne Mariner, Human Rights Watch, “No Escape: Male Rape in U.S. Prisons” (2001) http://news.lp.findlaw.com/hdocs/docs/hrw/hrwmalerape0401.pdf. [↩]
2. Id. The group’s findings are based on correspondence with more than 200 prisoners spread among thirty-four states, inmate interviews, and a comprehensive survey of state correctional authorities. [↩]
3. Id. “Rape is in no way an inevitable consequence of incarceration,” notes Joanne Mariner, the author of the report. “But it is a predictable one if prison and prosecutorial authorities do little to prevent and punish it.” See also e.g. Stop Prisoner Rape & ACLU National Prison Project, Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners (2005) (noting that sexual violence in detention is still an alarming reality for transgender individuals throughout the U.S., despite the Prisoner Rape Elimination Act). [↩]
4. Mariner, supra note 36, at 11. The effectiveness of the PRISONER RAPE ELIMINATION ACT (PREA), P.L. 108-79 (2003) has yet to be determined. The act aimed to curb prison rape through a “zero-tolerance” policy, as well as through research and information gathering. It called for developing national standards to prevent and detect incidents of sexual violence in prison, making data on prison rape more available to prison administrators and corrections facilities more accountable for incidents of prison rape. It does not create a new course of action for prisoners seeking legal redress. [↩]
5. D. Morgan Bassichis, “It’s War in Here: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons” (2007). [↩]
6. Id. at 11-15. See also, Alexander L. Lee, “Nowhere to Go But Out: The Collision Between Transgender & Gender-Variant Prisoners and the Gender Binary in America’s Prisons,” UNPUBLISHED JD THESIS, U. OF CAL., BERKELEY (2003) (on file with the author). [↩]
7. Adam Liptak, Ex-Inmate’s Suit Offers View into Sexual Slavery in Prisons, N.Y. Times, http://www.nytimes.com/2004/10/16/national/16rape.html. [↩]
8. Id.  [↩]
9. Farmer v. Brennan, 511 U.S. 825 (1994). In Farmer, the Supreme Court held that prisoner rape is constitutionally unacceptable. However, the court’s ruling has proved troubling over the years. Some interpretations have shielded corrections officials from liability in all but the most extreme cases of deliberate indifference to threats of sexual violence. See Still In Danger, supra note 38, at 1; see infra, note 46. [↩]
10. Angela K. Brown, “Jurors reject Texas Prison Rape Lawsuit,” Associated Press, October 18, 2005 (noting jurors’ criticism of Johnson for failure to introduce a rape test). [↩]
11. The “deliberate indifference” standard requires that an official “knows of and disregards an excessive risk to prisoner health and safety; the official must be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists. And he must also draw the inference” (Farmer 273 and 288). Advocates have asserted that the rules create perverse incentives for the authorities to ignore the problem of abuse, leaving the prisoner to accomplish the difficult task of proving the subjective knowledge of the staff members. Still In Danger, supra note 38, at 4. [↩]
12. Bassichis, supra note 39, at 17. [↩]
13. Id. at 18. [↩]
14. Id. [↩]
15. Emily Alpert, “Gender Outlaws,” interview with Judy Greenspan, co-founder, Trans/Gender Variant in Prison Committee (TIP), InTheFray Magazine, November 20, 2005 http://inthefray.org/content/view/1381/39/. [↩]