Issues Impacting LGBTQ+ Prisoners

LGBTQ+ people, especially people of color and low income, experience high levels of policing and criminalization, leading to an overrepresentation of these individuals in the incarcerated population. A 2017 study from researchers at the University of California, Los Angeles School of Law, suggests that LGBTQ+ people are three times as likely to be incarcerated than the general population. Once incarcerated, LGBTQ+ people are often subjected to violence from correctional staff and fellow prisoners, as well denied medical care and access to mental health services. 

Incarcerated individuals have specific civil rights under the Prison Rape Elimination Act of 2003 (“PREA”) standards, a set of federal rules that regulate prison and jail operations as they relate to preventing, identifying, and responding adequately to sexual assault and abuse.  While the PREA standards do not give prisoners a right to sue agencies for failing to adhere to these standards, courts may consider whether the agency in question failed to follow the standards that may have prevented sexual abuse.

Correctional Staff and Prisoner Violence 

LGBTQ+ people are at a heightened risk for violence while incarcerated. The 2012 National Inmate Survey, carried out by the United States Bureau of Justice Statistics, reported that 12% of lesbian, gay, and bisexual (LGB) people in prisons, and 9% in jails, experienced sexual victimization from fellow prisoners, compared to just 1% of heterosexual individuals in prisons and jails. The numbers are likely higher due to underreporting. The survey also indicated that 5% of LGB people in prisons, and 4% in jails, reported sexual assault from correctional staff, while 2% of heterosexual individuals incarcerated reported victimization by correctional staff. More recently, Black and Pink, an organization dedicated to helping incarcerated LGBTQ+ people, reported in its groundbreaking 2015 survey that respondents were six times more likely to experience sexual assault and violence than the general prison population. This survey also found that LGBTQ+ prisoners are three times more likely to be subjected to sexual violence from fellow prisoners, than staff. However, 76% of survey respondents indicated a belief that correctional staff intentionally placed them in circumstances where they would be at a substantial risk of sexual assault by another prisoner.

Housing and Placement

Solitary Confinement

Studies show that incarcerated LGBTQ+ people are more likely to be placed in solitary confinement than others. Black and Pink’s 2015 survey found that 85% of respondents had been placed in solitary confinement at some point during their incarceration, with more than 50% of individuals spending two or more years in isolation.  

Correctional staff oftentimes place LGBTQ+ individuals in “protective custody” because of their vulnerabilities. The PREA standards instruct prison officials to use “protective custody” as a last effort to protect a prisoner, when there are no other available alternatives for protection. The standards limit the amount of time a prisoner can be detained in segregation and requires they still have access to work and educational programming and opportunities.  

Most death row prisoners are placed in solitary confinement for 22-24 hours a day with little to no exposure to human contact or natural light, in addition to restrictions on participation in programming. Because of these harsh conditions, many prisoners suffer from that has been called “death row syndrome”: a set of psychological issues that condemned prisoners develop while waiting for an imminent execution and living in the harsh conditions of solitary confinement. These issues include a range of symptoms such as hallucinations, dissociation, paranoia, hyper-sensitivity to external stimuli, perceptual distortions, and impulse control.  

Studies show that LGBTQ+ people generally experience higher rates of depression and anxiety, as well as greater thoughts and attempts of suicide than their heterosexual counterparts. When incarcerated, many individuals struggle to secure effective mental health care, because of perceived stigma associated with of disclosing information and because many correctional teams do not understand how to treat and counsel LGBTQ+ people. The psychological harms of solitary confinement and death row syndrome may be amplified by pre-existing mental illness and medical conditions; this exacerbates the suffering of some LGBTQ+ prisoners, who are also more likely to experience mental illness. 

Gender-Specific Placement 

Despite PREA standards forbidding the practice, many correctional agencies house transgender individuals in men’s or women’s facilities based on their genital anatomy or the gender they were assigned at birth. This widespread practice often places transgender prisoners at a higher risk for sexual violence and abuse. The PREA standards require agencies to look at each case individually, assess the prisoner’s health and safety, and solicit their views on where they would be safest. Some institutions have tried to use surgery as a determining factor for placement, but the World Professional Association for Transgender (WPATH) holds that treatment is individualized, and not all trans individuals require surgery. 

Access to Medical Care 

Gender-Affirming Health Care 

The Eighth Amendment to the U.S. Constitution, through its prohibition against cruel and unusual punishment, requires that all prisons provide adequate health care for prisoners with serious medical needs under their supervision. In the last decade, courts have consistently ruled that gender dysphoria (GD) is a serious health diagnosis that may require medical and/or mental health treatment. In 2011, the 7^th Circuit in Fields v. Smith affirmed a lower court ruling which held that denying medically necessary transition-related healthcare violated the Eighth Amendment. Despite these rulings, many transgender prisoners struggle to receive a GD diagnosis from prison medical staff and the subsequent treatment they require.

Freeze-Frame Policies 

Many states have freeze-frame policies that permit hormone therapy only for transgender prisoners who were already receiving this therapy prior to incarceration. Under these policies, transgender prisoners are not allowed to start or expand medical treatment with hormone therapy. Even if a state is required to offer gender-affirming healthcare to transgender prisoners, it may prevent granting healthcare to someone who did not start their transition prior to arrest and incarceration. Freeze-frame policies are instituted largely at a state level, which has made widespread repeal of these policies difficult. Several jurisdictions, including Georgia, Missouri, and the Federal Bureau of Prisons have faced challenges to their freeze-frame policies, which have since been repealed.