The California Department of Rehabilitation and Correction is now in the midst of implementing SB 132, the law that requires the Department of Correction and Rehabilitation (CDRC) to house transgender inmates according to their gender, not their genitalia.
In November, multiple incarcerated women filed a lawsuit alleging that housing transgender women in women’s facilities exposes them to “substantially increased risk of sexual harassment, sexual assault, rape, and physical violence…”
The case of Chandler v. California Department of Rehabilitation and Corrections remains pending. The plaintiffs may prevail in Chandler v. CDRC, ping-ponging transgender women back into men’s prisons.
Transgender advocates say casting all the objections against SB 132 in terms of risk to cisgender women is transphobic. It’s more than that: it’s moved discussion away from meaningful alternatives — ones that all states and the federal government can use — to placing natal males in a women’s prison.
Women’s advocates believe that the prospect of sex with women incentivizes incarcerated men who aren’t transgender to identify as such, since SB 132 doesn’t require any diagnosis or medical history to qualify a person as transgender.
The National Center for Transgender Equality says it’s “extremely unlikely” that someone would falsely identify as transgender. But, in California, one inmate identified at least five male inmates seeking to transfer under false pretenses.
When female inmates expressed concern about transgender women moving in, they were educated about transphobia. A worthy lesson, but not a salve to incarcerated cisgender women who are anxious about whether transgender women pose a risk or not.
To be clear, transgender people aren’t dangerous.
But perception of danger that doesn’t exist has the same effect as danger that does; it still arrests growth. Women who have experienced significant trauma — sexual, emotional and physical — fill correctional spaces and may not feel protected regardless of the composition of the inmate population.
It’s not like they’re making it up. In the most recent data from the Bureau of Justice Statistics, reports of sexual violence in prisons tripled although it wasn’t broken down by gender.
The introduction of transgender inmates poses problems if there’s no spectre of violence. The CDRC anticipated sex between inmates. It’s why they made condoms available inside the women’s prisons earlier this year. They have since discontinued the distribution, so the risk of pregnancy persists.
Unconfirmed rumors of pregnant inmates circulated earlier this year.
Administrators developed policies to address reports of sexual activity (anyone caught mid-act is subject to discipline but anyone reported after the act is not), but it’s hard to determine what counts as consensual in a coercive environment like a prison.
In Illinois, a cisgender prisoner accused a transgender prisoner of sexual assault. The Department of Correction dismissed the complainant’s report saying that the sexual contact was consensual; she’s now suing the state for being disbelieved.
This isn’t just a matter of what happens between incarcerees. According to minutes from an Inmate Advisory Council meeting this summer, the introduction of transgender women has caused CDRC to implement a policy of videotaping strip searches. That would represent a possible violation of federal law, depending on who operates the camera.
Administrators claim the rule states that no one views the videos unless someone reports a problem. But California’s prison guards aren’t known for their obedience to restrictions placed upon them.
Of course, leaving transgender women in the men’s facilities isn’t an option, either. Transgender inmates face sexual violence and harassment at rates 10 times higher than cisgender inmates when prisons house them according to their natal genitalia.
These realities end at an impasse. The choice is either to leave the transgender inmates in demonstrated danger or to introduce chaos — and unthinkable policies like forcing people to disrobe on camera — into women’s facilities.
There’s a way out of this dilemma: housing transgender inmates together, apart from others.
The CDRC doesn’t do that now because the Prison Rape Elimination Act (PREA) prohibits establishing separate living quarters for any of the country’s 3,200 transgender prisoners; they live in a women’s or a men’s facility.
PREA has an exception to this provision, though. Under a settlement agreement or consent decree, the law permits facilities to house transgender inmates together, separate from the general population.
That’s exactly why the K6G unit in the Los Angeles County Men’s Central Jail can exist.
In 1985, a judge ordered a segregated unit for gay and transgender prisoners as part of settlement in another lawsuit filed by the ACLU against the jail. When PREA passed in 2003, K6G applied for an exception, and it’s been running continuously for 36 years.
K6G is essentially devoid of gang and sexual violence. Guards accompany inmates as they attend school or their work assignments. Prof. Sharon Dolovich, who directs the UCLA Prison Law & Policy Program at UCLA School of Law, called K6G “affirmatively humanizing,” a rare rave for anything correctional.
K6G isn’t a secret; it was the subject of the 2013 film “K-11”.
Of course, the unit isn’t without critics, but their objections are more that K6G doesn’t protect as many people as it can, not that it doesn’t seem to keep people safe and working on themselves.
Of course the fix isn’t as simple as moving all transgender people into one wing. For one, the transgender people have to agree to it, to enter into a consent decree or settlement with the CDRC.
Secondly, there are ways of separating vulnerable inmates that violate the spirit of PREA. The original reason why PREA prohibited housing people according to gender identity is that isolating people according to sexuality or gender can be ostracizing and harmful.
If there aren’t enough transgender prisoners in a facility, then housing people can amount to placing them in isolation akin to solitary confinement. It happened in the West Valley Detention Center in San Bernardino.
Housed in what administrators called an “alternative lifestyle tank,” detainees couldn’t access educational programming (particularly earning GED’s), outdoor exercise and group meals. This is the modern correctional method of protection: placing the vulnerable in more punitive conditions.
Such denials of rehabilitative services are unacceptable. But if wardens correct those problems — the way the K6G unit did — this type of housing can not only work, it can advantage transgender inmates so that their experiences are more rehabilitative because they feel safe from harassment and violence, sure that security isn’t subject to legislative and judicial whims.
The reason why such segregation works is an issue of mattering, of understanding that one’s “safety is an institutional concern” according to Prof. Dolovich. Very often, especially in matters of sexual violence, that’s not the case for incarcerated people.
Even beyond matters of safety, transgender housing units can be a boon for transgender inmates. When they get together in a trans-exclusive, weekly workout club at the California Medical Facility in Vacaville, not only do transgender prisoners appreciate the time with people with the same lived experience, the facility assigned a workout coach and special staff to monitor it.
That’s a benefit that the general population doesn’t get.
Yet even transgender advocates resist explicitly separate housing for transgender inmates. It’s almost as if identity trumps safety and rehabilitation, as if all three shouldn’t guide the management of these facilities.
There doesn’t need to be a divide between identity and safety. Prisons can honor both — for all incarcerated people.
Chandra Bozelko, a John Jay/Langeloth Justice Reporting Fellow, served more than six years at York Correctional Institution in Connecticut. Bozelko is a columnist for several publications, and the author of Prison Diaries, a prizewinning blog.