Prison: A Literal and Metaphorical Issue in the Transgender Community

Prison: A Literal and Metaphorical Issue in the Transgender Community

COM 316: Gender and Communication

Emilee Shearer & Reslie Cortes

David Kenneth Kries II

5/30/20
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Prison: A Literal and Metaphorical Issue in the Transgender Community

Although there have been many conversations and struggles throughout history in

regard to sex, gender, gender identity, and sexual orientation it seems to me that in the last 20

or so years these issues have come to the forefront of our conversations in regard to civil rights,

equality, and protections not only within the United States but worldwide. As our societies, and

the laws that guide them, work to adjust and catch up to the needs, wants, and desires of the

populace there are a myriad of adjustments that need to be made. And while every issue is

delicate and complex with many variables, we must constantly work to better our system if we

are to live up to the values set forth by our Founders in the Constitution. The issue that I am

choosing to write about regards the transgender community and their interactions with the

prison system and how our legal definitions of sex and gender negatively impact the safety and

wellbeing of these individuals when incarcerated. The GLAAD website states that transgender

“is a term used to decribe people whose gender identity, which is a persons internal sense of

being a man or woman, differs from the sex they were assigned at birth.” Simply, a

transgenders assigned sex at birth does not align with their interanlized identity. Some

individuals may end up utilizing medical services such as hormone therapy or cosmetic surgery

in order to outwardly display their internalized gender identification. Others live their whole

lives without making any modifications to their being.

This conflict between someones assigned sex at birth and their internalized gender

creates problems when these individuals unfortunately enter our prison systems. Notably, most

United States prisons have a policy of jailing people in accordance with their assigned sex or the
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genitalia they present with. So a pre-op trans man would be placed in a men's prison whereas a

post-op trans man would be placed in a women's prison, and this is done without regard for the

individuals current gender identity. According to Erni (2012) the legal system does not see

transgender persons as subjects but rather as an abject class and that transgender rights lag

behind those of their gay and lesbian counterparts from an apaprent internal hierarchy in queer

advocacy and from immutable law. What Erni means by this is that in the greater LGBT

advocacy, lesbians and gays are more easily defined as they work within a binary labeling

system. Transgenderism complicates that due to more variation and variables. Sometimes it’s

not just one or the other and there are multiple observations and perspectives to take into

account. Additional Erni notes that “courts around the world continue to give prevalence to the

psycho-medical labels of gender identity disorder...in other words, transgender people yet do

not have a liberty interest in defining their own sex (p.507.)”

In the prison system transgender inmates have an extra level of uncertainty added to

their day to day lives. Prison is already an incredibly hostile environment. Inside any prison you

have a mixture of many races, creeds, and belief systems that, at times, are forced to occupy

the same space. In addition there is the possibility, at any moment, for attacks between

inmates or corrections officers to break out that threaten the safety of everyone in the facility.

In regard to trans inmates, they have been identified as one of three high-risk groups for in-

prison rapes in addition to whistleblowers and the mentally vulnerable (Robertson, 2003, p.

461). Transgender men are seen within the prison system demasculated. They are viewed as

the de facto women of the environment. Due to the perceived femininity of these individuals

they are usually assigned tasks that would be considered female-focused such as service jobs,

launders, and cleaners and are typically not afforded the same opportunities as their

cisgendered male counterparts such as recreational outlets, exercise opportunities,visits to the

library, the list could go on. Point is, they are treated incredibly differently within the prison

system. Erni notes, “The prison systems inhumane treatment of trans men begins with a

genitalia-bases placement policy, and continues with the legal hurdle of denying them the

protection from cruel and unusual punishment...by the Eighth Amendment of the US

constitution” (p. 142). Although prison may be the punishment for whatever crimes these

individuals may have committed, the additional hardships they endure within the prison system

are viewed as additional punishments in addition to their prison sentence.

In addition to the hardships these individuals endure within the prison system, there are

also constitutional issues at play here. The Eighth Amendment of the United States Constitution

states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” Some would argue that the conditions within the prison would

constitute cruel and unusual punishment yet, historically, the courts have not agreed with this

view. The intent of the Eighth Amendment was to address torturous treatment while

incarcerated but in Weems v United States (1910) the Supreme Court reviewed a case regarding

a lengthy prison sentence for the falsifying of documents and found the sentencing to be a

violation of the Constitution and introduced a proportionally standard to operate alongside it.

In Estelle v Gamble (1976) the Supreme Court made further adjustments to the clause by

including punishments that run contrast to “the evolving standards of decency that mark the

progress of a maturing society” (p.102). It was out of this case that the deliberate indifference

test was also brought forth. Clarification on deliberate indifference was made in Wilson v Seiter

(1991) when Wilson, a prison inmate, made the case that the conditions of the prison such as

overcrowding, noise, and unsanitary conditions constituted cruel and unusual punishment.

Writing for the majority opinion, Justice Scalia rules that although the prison conditions may be

adverse to the inmates, they were not viewed as cruel and unusual punishments unless there
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was proof that the prison was acting with a “sufficiently culpable state of mind” (p. 2326). This

brings us to the case of Farmer v Brennan (1994) where Dee Farmer, a pre-op transexual that

was biologically male who, although had a breast implantation, still maintained their male

genitalia and was subsequently put into a male prison. Two weeks after entering this prison Dee

was assaulted with a knife by their cellmate and raped. In the complaint, Dee argued that

prison officials ignored the violent environment that would present itself due to Dee’s

transexuality and were therefore liable for the traumatic event that occured. Dee lost their case

in both the District Court as well as the Seventh Circuit Court of Appeals with the reasoning that

“not every injury suffered by one prisoner at the hands of another translated into constitutional

liability” (p. 834). Taken in total, the deliberate indifference test and the Eighth Amendment

currently seem to work against the safety of trans prisoners.

Arguments against trans prisoner rights are not so much focused specifically on the

prison system but rather how parts of our society view transgenderism in total. There are those

that view gender and sex as the same thing and maintain that what you are born as is what you

are regardless of any therapies you engage with, hormones you take, or surgeries you attain. If

a biological man chooses to get implants and genital reconstruction, they are still biologically a

male. Now, as I noted above, there are examples where this line of thought has drifted from the

hard-line it once was. If a prisoner has had the appropriate surgeries that define them as a

specific gender, they are typically put into that gender’s prison system. But there are those who

think this observation is meaningless. The Heritage Foundation, a conservative think tank that

attempts to direct public policy, makes the statement that transgender activists refuse to

acknowlege that saying that “people are the gender they prefer to be” is a metaphysical claim

dressed up as a scientific and medical one and that the phrase “assigned at bith” (in relation to

sex) has been showhorned into the definition in place of “birth sex” and “physical sex” by the
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American Psychological Association who had used the former phrasing up until 2005. Although

The Heritage Foundation is not making a specific point regarding the trans population and

prisons, they are speaking to the general idea of how gender and sex should be viewed, which

impacts how these individuals are treated in those systems. If this point of view were to be the

socially accepted standard then there would be more people with experiences like Dee’s within

the prison system. That would be a problem with how we view the situation today but wouldn’t

be a problem if the socially accepted understanding was that sex and gender are determined at

your birth with no deviation.

On a more impactful level, the Federal Government under the Trump presidency has

moved to change how the government views sex when discussing discrimination and

protections. Again, this doesn't speak directly about issues within the prison system but it most

certainly does impact how they would play out. Supporters argue that by drawing a hardline

between what is what actually offers more protections to the population as a whole, specifically

for women. They argue that if all a man has to do is identify as a woman then that allows them

to utilize “women's shelters, school restrooms, or participate in women's sports” (Bursch 2019).

This could also mean that they are assigned to women’s prisons, an already volatile and tense

environment. If anything, the government is making the argument that their current approach

simplifies things rather than convolute them with ambiguous definitions regarding sex, gender,

and identity.
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References

Bursch, J. (2019, June 13). HHS restores legal meaning of 'sex' - what will US Supreme Court,

Congress do? Retrieved June 02, 2020, from https://thehill.com/blogs/congress-

blog/politics/448306-hhs-restores-legal-meaning-of-sex-what-will-us-supreme-court

Corbett, E. (2019, May 24). Trump Administration Proposal Could Threaten Transgender

Healthcare Protections. Retrieved June 02, 2020, from

https://fortune.com/2019/05/24/trump-transgender-healthcare/

Green, E., Benner, K., & Pear, R. (2018, October 21). 'Transgender' Could Be Defined Out of

Existence Under Trump Administration. Retrieved June 02, 2020, from

https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-

sex-definition.html

Anderson, R. (n.d.). Transgender Ideology Is Riddled With Contradictions. Here Are the Big

Ones. Retrieved June 02, 2020, from

https://www.heritage.org/gender/commentary/transgender-ideology-riddled-

contradictions-here-are-the-big-ones

Eighth Amendment. (n.d.). Retrieved June 02, 2020, from

https://www.law.cornell.edu/constitution/eighth_amendment

Transgender FAQ. (2018, June 01). Retrieved June 02, 2020, from

https://www.glaad.org/transgender/transfaq

Erni, J. N. (2013). Legitimating Transphobia. Cultural Studies, 27(1), 136-159.

doi:10.1080/09502386.2012.722305

Peate, I. (2018). Transgender prisoners. British Journal of Nursing, 27(2), 73-73.

doi:10.12968/bjon.2018.27.2.73