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.