The Trump administration’s decision to change the policy of the federal Bureau of Prisons (BOP) for housing transgender prisoners is dangerous, wrongheaded, and unnecessary.
Because being transgender is a known risk for being sexually victimized in confinement, the Prison Rape Elimination Act (PREA) and Department of Justice guidance issued in 2016 called for individual determinations of housing, program, and other assignments in correctional facilities. That means an individual assessment must be made, taking many factors into account, including the person’s own views about their gender and safety. It also made assigning a transgender prisoner to housing, programs, or other services based solely on their sex assigned at birth a violation of federal law.
But last week, the BOP announced that while it will continue to make these determinations on a case by case basis as is required, “biological sex” will be used as the basis for the initial determination, and transgender prisoners will be assigned to facilities conforming to their gender identity only “in rare cases.”
At highest risk are transgender women who have reported alarming rates of assault in federal and state prisons and local jails: more than 1 in 3 have been sexually victimized according to PREA data. In a national survey of transgender adults, respondents who were incarcerated reported physical and sexual assault rates six to 10 times higher than non-transgender prisoners.
This latest decision is part of a pattern of actions taken by the Trump administration that includes an attempt to ban transgender persons from military service; disavowing protections for transgender persons in both employment and education under the Civil Rights Act of 1964; and green-lighting discrimination in health care by expanding religious and moral objections in health care settings.
As with the change to BOP policy, there is no defensible basis for these decisions. Indeed, Attorney General Jeff Sessions was a leading co-sponsor of PREA when he was in the Senate. BOP’s decision to weaken protections will place transgender people at immediate risk of physical and sexual assault. In light of overwhelming evidence of severe risks in confinement, it should be reversed immediately.