By Jael Humphrey
Staff Attorney for Lambda Legal
Q: My friend was recently incarcerated in prison in Florida and I’m worried about her safety because she’s transgender. Are there laws that can protect her?
A: Unfortunately, the situation your friend is in is all too common — prisons incarcerate a transgender woman in a male, rather than a female, facility where she is at constant risk of sexual abuse and other violence. When someone is incarcerated, their health and safety becomes the responsibility of the state. But not all prisons protect the people in their custody, tolerating a culture where staff threaten, beat or sexually assault some people in custody or permit other incarcerated people to do so, just because they are transgender.
If your friend is threatened or abused, it is important that she file as soon as possible an “administrative grievance,” or complaint, that puts the facility on notice that she believes her rights have been violated. Under the Prison Litigation Reform Act, a federal law passed in 1996, people in custody who wish to file a lawsuit in federal court must first exhaust all administrative remedies available to them, sometimes within very short deadlines.
This step is crucial, because correctional facilities use the failure to exhaust administrative remedies as a reason to ask courts to throw out cases filed by people in their custody.
If she first exhausts, she may be able to sue in federal court. In October of last year, Lambda Legal filed a federal lawsuit on behalf of Passion Star, a transgender woman currently in the custody of the Texas Department of Criminal Justice, arguing that TDCJ officials are deliberately indifferent to her safety. Passion is in constant danger of sexual assault, but TDCJ officials have ignored or made her problems worse, even though she has filed dozens of grievances, complaints and requests to be placed in safekeeping.
The Prison Rape Elimination Act, a federal law to eliminate sexual abuse of people in custody, has provisions to protect incarcerated transgender people, if it is implemented fully. Among other things, the PREA standards instruct prison officials to screen and separate particularly vulnerable people — such as transgender women in male facilities — from likely aggressors and make individualized housing decisions prioritizing gender identity and safety, not merely genital characteristics.
While most states are working to implement PREA, some states — like Texas, Florida and Indiana, instead decided to pass up funding earmarked for the prevention of sexual assault. Perhaps not coincidentally, Texas is home to five of the 10 prisons with the highest rates of reported rapes in the country.
Sign our petition urging Texas to fully implement and abide by the Prison Rape Elimination Act. See more at here.
For more information about transgender prisoners in crisis, see here.
If you have questions, or feel you have been discriminated against because of your gender identity, sexual orientation, or HIV status, contact Lambda Legal’s Help Desk at 1-866-542-8336, or see here.