Prisons

Key Points

>  Passage of the Equality Act would enshrine into federal law the emerging practice of housing men who claim female identity in women’s prisons. 

> President Biden’s executive order directing federal agencies to review sex discrimination policies suggests housing prisoners based on “gender identity”could be appropriate and lawful. 

> Housing males claiming female identity with women prisoners may be a violation of women’s Eighth Amendment rights.

> Requiring female prison staff to conduct intimate searches of male offenders claiming female identity violates women’s right to be free of a discriminatory hostile work environment.

Housing men claiming female identity in women’s prisons undermines the Prison Rape Elimination Act (PREA) and contravenes the United Nations Statement on the Treatment of Prisoners, which recognizes that people have the right to privacy on the basis of sex.

> Housing male prisoners claiming female identity with women violates multiple provisions of the Geneva Conventions.

>  Already women prisoners have been sexually harassed and assaulted in prison by men claiming female identity.

> Download and print our brochure on Women in Prisons and the Equality Act for distribution in your community.

Increasingly, men who claim female identity are being housed in women’s prisons, putting women at risk of sexual harassment and assault. Research shows that better than 85% of men who identify as women retain their male genitalia and the 2015 US Transgender Survey indicates that a majority retain their sexual interest in women.

Just prior to leaving office in 2017, President Obama issued a prison guidance directing that housing and program assignments, as well as pat-downs, should take into account

a prisoner’s “gender identity” and “views with respect to his/her own safety.” The Trump administration rescinded the guidance in 2018 after female prisoners in Texas challenged the policies in court. The Trump administration guidance called for biological sex to be taken into account, as well as “the health and safety of transgender inmates.” It is possible that President Biden will reinstate the Obama-era guidance. If the Equality Act is passed, such policies will be enshrined in federal law.

Eighth Amendment Violations

The Eighth Amendment of the US constitution prohibits “cruel and unusual” punishment of prisoners. Housing males who identify as female with women, and subjecting women prisoners to intimate searches by male staff claiming female identity, could violate female prisoners’ Eighth Amendment rights. Prison officials have a duty to take reasonable measures to guarantee the safety of inmates, including from violence at the hands of other prisoners. Prison officials can be found liable under the Eighth Amendment when the official knows of, and disregards, an excessive risk to inmate health or safety (Farmer v Brennan (1994), and when inmates are subjected to punishment which degrades human dignity. 

Given the Bureau of Prisons (BOP) is aware of the high percentage (86% in a 2012 study) of prior abuse and sexual violence experienced by women prisoners, and the propensity to violence among males (who commit better than 90% of homicides and 98%+ of rape and sexual assault), placing male inmates in female sleeping quarters, in female shower and bathroom facilities, and having biologically male staff perform physically or visually invasive tasks involving female inmates, are all potential Eighth Amendment violations.

Title VII (Of the 1964 Civil Rights Act) Violations

Permitting a biologically male inmate to request, and be granted, the right to be searched by female staff is a violation of the right of women prison employees to be free of a discriminatory hostile work environment on the basis of sex. 

Violations of the United Nations Standard Minimum Rules

Rule 11 of the United Nations Standard Minimum Rules states that “prisoners shall be kept in separate institutions, or parts of institutions, taking account of their sex.” Rule 52 states that “intrusive searches shall be conducted in private and by trained staff of the same sex as the prisoner.” Should provisions in President Biden’s executive order 13988 be adopted in BOP policy, or the Equality Act passed, both of which require treating males claiming female identity as if they were biological females, the United States would be in violation of these United Nations Rules.

Violations of the Geneva Covention

Women held in wartime conditions are entitled to be housed separate from male prisoners, to have access to hygiene/sanitary conveniences separate from male prisoners and to be supervised by female guards. The Equality Act and EO 13988 are therefore inconsistent with the Geneva conventions. While these provisions may not be directly applicable outside of armed conflict, treating incarcerated US female prisoners worse than the terms of the Geneva Convention is unconscionable.

(For an expanded discussion of the legal ramifications of EO 13988 and the Equality Act for the BOP, including citations of case law, see our paper, Bureau of Prisons and Executive Order 13988.)

Recent Cases

In Texas, four women prisoners in the Federal Medical Center Carswell in Fort Worth filed multiple complaints in 2017 about male prisoners claiming female identity. One such complaint stated:

        The Plaintiffs have been forced to share intimate facilities with men who allege they are women. These men openly express their sexual desire for the women inmates, at times, in the showers, and bathrooms, while women are naked or partially clothed.

     The men expose themselves, intentionally, for their own sexual gratification, causing the Plaintiffs to suffer disgust, embarrassment, humiliation, stress, degradation, fear, and loss of dignity.

Representing themselves, the women filed a successful motion for FMC Carswell to be included in a temporary injunction blocking enforcement of the Obama administration guidance allowing students in public schools to use restrooms based on their gender identity. Amy Whelan, speaking for the National Center for Lesbian Rights, called the women’s complaints “unwarranted” and based on “prejudices and biases.”

After the Trump administration issued its guidance, men claiming female identity continued to be housed in women’s prisons. In 2019, Janiah Monroe (aka Andre Patterson) was moved into the Logan Correctional Center, the largest women’s prison in Illinois. A female inmate alleged that she was raped by Monroe, reported the incident, and was pressured by prison officials to deny that it had happened. She says she was then punished for filing a false claim under the Prison Rape Elimination Act (PREA). The woman subsequently filed a federal lawsuit against prison officials at Logan.

Court documents indicate that more than one Logan inmate has reported being sexually assaulted by Monroe. Nevertheless, Monroe’s lawyer dismissed the original plaintiff’s rape allegation as “transphobia” and asserted that Monroe had “made a lot of friends” at Logan.

In 2020, California passed a law, effective January 1st of 2021, requiring prisoners to be asked their gender identity and pronouns upon intake, and to be housed based on their preference: gender identity or biological sex, whichever they deem safest. This latter provision indicates that prison officials do understand the implications of housing females with males. It seems unlikely that a biological female who identifies as male would request to be housed in a men’s prison.

Feminists in Struggle (FIST), Women’s Human Rights Campaign-USA (WHRC USA), and Women’s Liberation Front (WoLF) all conducted letter writing campaigns, urging their members to object to the California bill. They also sent letters on behalf of their organizations. You can read their letters by clicking on the the thumbnails below.

In March of 2021, an employee from the Washington Correctional Center for Women anonymously contacted a local radio show to report that a female inmate had been raped by a male claiming female identity who had recently been transferred there. The whistle-blower reported that the male inmate is incarcerated for a sex offense and has:

…fully functional male genitalia, a history of violence and sexual depravity in the community, and has been found guilty of sexual assault against other inmates while housed in the men’s facilities.

He is a proven sexual predator, having committed multiple crimes against women, yet the State of Washington had no problem moving him into a women’s facility and housing him with the most vulnerable in our population (our mental health unit).

There are significant differences between male and female prison populations and these have remained stable over time. For example, in 2019 100% of sexual abuse crimes by prisoners held in federal prisons, and 98% of prisoners convicted of such crimes in state prisons, were male. Of those in state and federal prison for murder and homicide, 94% and 93% respectively were male. (Prisoners in 2019, BJS; Tables 13, 14, 15, & 16).

Though we are not aware of US studies of criminality among males claiming female identity, studies elsewhere indicate that patterns of offending are similar to other males. A Swedish study that followed several hundred individuals for a median of two years after they had gender reassignment surgery found that males claiming female identity “retained a male pattern regarding criminality. The same was true regarding violent crime.”

Similarly, statistical analysis in the UK of male prisoners identifying as women found that the types of crimes they committed were those commonly committed by men, rather than those committed by women. That is, males, however they identify, commit significantly more violent crimes and sex offenses than do females. 

Housing males claiming female identity in women’s prisons, or employing them in women’s prisons, risks the safety and dignity of female prisoners. Such practices are a liability for the BOP under the 8th Amendment. They are also violations of the Geneva Conventions and the United Nations Statement on the Treatment of Prisoners. The latter recognizes that people have a right to privacy on the basis of sex, which includes separating male and female prisoners. 

Sex is defined by the United Nations as the “physical and biological characteristics that distinguish males from females” (Gender Equality Glossary, UN Women). Housing males who identify as women with women prisoners is sex discrimination. Forcing female prison staff to conduct private searches of males identifying as female is a violation of Title VII prohibitions against a discriminatory and hostile work environment.