The US Prison System May Be Exposing Transgender Prisoners To Rape

This article originally appeared on VICE.

On September 26, a district court judge ruled that D. B., a transgender former prisoner who was incarcerated in Orlando, had no right to sue Orange County, Florida, for putting her at excessive risk and showing deliberate indifference to her safety. After she was arrested on charges of unarmed burglary right before her 38th birthday, she told guards that she was afraid to be tossed in with the general population, but her cries were ignored, and she was subsequently raped by her 18-year-old cellmate, Josh Bailey, in December 2009.

According to court documents, D. B. asked to be put in protective custody almost as soon as she was jailed awaiting trial. (She would ultimately be sentenced to five years after pleading no contest.) After an investigation conducted by the prison found no reason to grant her request, she was housed alongside the male inmates, who began “shaking their penises” at her and issuing threats.

Most states don’t have prison facilities for people like D. B., and her case raises a question that was first asked 20 years ago when a trans woman named Dee Farmer won a Supreme Court case that allowed people to sue prisons for deliberate indifference. Of course, it’s not an easy thing to prove. But as a slew of news stories, lawsuits, and studies build the case that trans people are especially vulnerable, corrections departments across the country are poised to re-evaluate their protocols.

US District Judge Gregory Presnell, however, said that D. B. can’t sue Orange County for negligence. In doing so, he ignored years worth of mounting evidence that trans women are at extreme risk when placed with the general population.

“I’m a little baffled by it,” says Valerie Jenness, who gave a deposition in the case and is perhaps the foremost academic expert on prison violence against trans women. “But it’s gonna get increasingly difficult to deny that trans folks who are locked up in a whole host of facilities are differentially vulnerable.”

Jenness is the author of a 2007 landmark study called “Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault,” which showed that 59 percent of transgendered women housed in men’s facilities are sexually abused in prison, versus just 4 percent of men.

Although awareness of trans issues has increased dramatically since the study’s release, the same lack of accountability is still rampant within corrections departments. The same day that the ruling in D. B.’s case came out, BuzzFeed published a horrifying account of a trans woman in Georgia being forced to share a holding cell with her rapist, who then assaulted her again in May 2012. (Jenness will be deposed in that case as well.)

In a lot of ways, D. B.’s story is one that has played out in courtrooms across the country. After being diagnosed with gender dysmorphia, she removed her scrotum, got breast implants, and started taking female hormones. Even though she presented to the world as female and altered her genitals to reflect that, she was still housed with male prisoners.

Yet her case was unique in one key way: Bailey, the man who assaulted her, was ultimately convicted of rape in April 2010 and sentenced to 25 years. That’s something that Jenness hasn’t seen happen. Usually, she told me, the cases revolve around proving the assault occurred in the first place.

“We don’t have to say ‘alleged,’ because it’s been determined,” she tells me. “We’re finally beyond whether she’s been raped or not. It’s a stunning case.”

But given that D. B. had expressed fear multiple times before the rape happened, it could have been prevented. The judge, in deciding that D. B. couldn’t prove the jail had put her at “excessive risk,” relied on depositions from guards there, as well as a deposition from Jenness, who said that trans inmates are at 13 times the risk of assault as that faced by other inmates. According to the summary judgment issued Friday, “Some of the corrections officers deposed for the case agreed with D. B. that transgender inmates were at greater risk for assault, but others disagreed or testified that transgender inmates faced varying degrees of risk, just as the rest of the population did.”

The judge concluded that, despite the overwhelming evidence that jail is very dangerous for trans people, Orange County is innocent because officials there were unaware of that evidence. Still, there’s clearly a need for prison workers and policy makers to come up with a housing solution that doesn’t add sexual assault to trans people’s sentences.

That might mean removing trans prisoners from the general population, although the National Center for Lesbian Rights reports on its website that “administrative segregation also results in exclusion from recreation, educational, and occupational opportunities, and associational rights.” While that might not be ideal, other versions of this solution go way, way too far. Solitary Watch, a site devoted to prison reform, reported in August that at least seven trans inmates in New York were forced to endure long-term solitary confinement. And about half of the women interviewed by the site said that the isolation made them prime targets for sexual assault by guards.

What’s more, Chris Daley, who works for an organization called Just Detention, told me that some trans women wouldn’t necessarily feel safe in a women’s prison either. And while LA County has a separate pod for trans women and gay men, it’s gotten mixed reviews. Clearly, there’s no one-size-fits all solution.

Also troubling is that the judge had to force the defense counsel to stop laughing while cross-examining his own client, D. B., according to a report from the blog CourtWatch Florida. So not only did the prison guards not take her warnings seriously, but the victim became an object of ridicule when seeking justice. It’s just another part of a vicious cycle in which prison guards discount trans people’s fears and transphobia from attorneys and jurors keep them from getting justice after they come forward as victims of assault.

But Jenness is hopeful the tide is turning. As for shifting public opinion, trans people are more visible than ever in American culture. Laverne Cox, from Netflix’s wildly popular Orange Is the New Black, was on the cover ofTime this past May, for instance.

And things appear to be shifting in the corrections world as well. In 2012, the Federal Bureau of Prisons implemented the Prison Rape Elimination Act, which calls for transgender inmates to undergo individual assessments to determine what housing solution would make them feel most safe. The Department of Homeland Security has asked Jenness to prepare training materials so Immigration and Customs Enforcement officers know how to deal with trans inmates. In her role as an educator, Jenness also noticed that people are more cognizant of these issues than they’ve ever been before.

“I predict in the next three, five, seven years you’ll see some trans folks prevail,” she says. “I present slideshows to officers now about trans issues, and people don’t even blink. In fact, I think I’m boring them.”

Photo via Flickr