Incarcerated transgender adults and juveniles experience violence and sexual abuse at the hands of inmates and staff, despite constitutional protections. This experience is shared by all transgender age groups, with both adult and juvenile populations reporting abuse, and very few being assigned to “gender-affirming housing.”
“Despite inmates’ 8th and 14th Amendment rights to be free from cruel and unusual punishment, states and the current federal government are targeting trans inmates in prisons and jails,” a policy brief from the Tennessee Equality Project (TEP) and the Human Rights Campaign reported.
Inmates identifying as transgender, gender-nonconforming, and intersex inmates make up less than 0.3 percent of the state’s prison population. The brief said at least 59 of Tennessee’s 22,5000 state prisoners are transgender or intersex.
Researchers noted that these reported numbers are “highly likely underestimates” due to fear of disclosure.
This information was compiled by the two agencies to show the potential impact of the proposed Tennessee Women’s Safety and Protection Act. That legislation would redefine the meaning and understanding of gender and identity by using “visible genital anatomy” to categorize individuals.
“[The act] dismisses intersex and nonbinary persons entirely,” the brief said. “The Act specifically forces prisons to restrict incarcerated trans women and girls to men’s housing, without exception for their health and safety.”
The bill defines females as those whose “biological reproductive system is developed to produce ova,” and males as those whose “biological reproductive system is developed to fertilize the ova of a female.”
These definitions “dismiss intersex and nonbinary persons entirely,” the policy brief said. This puts these inmates at heightened risk as prisons would no longer be required to comply with Prison Rape Elimination Act (PREA) protocol.
“Lesbian, gay, bisexual, transgender, intersex (LGBTI), and gender-nonconforming inmates were the first at-risk population addressed in the PREA standards,” the brief said.
The Tennessee Department of Corrections (TDOC) recognized LGBTI and gender-nonconforming inmates as “high risk groups for sexual abuse” in its PREA regulations. Under PREA inmates received sexual abuse assessment within 72 hours of intake to determine “if an inmate is or perceived to be” any of the aforementioned identities.
Transgender, gender-nonconforming, and intersex (TGCI) inmates were given “serious consideration” for housing assignments under PREA. Facilities were also prohibited from cross-gender body and cavity searches as well as strip searches and physical exams to determine sex and gender.
The Women’s Safety and Protection Act would not only undermine PREA practices , but inmates would also have reduced options for civil justice in these matters.
“The Act establishes rights to civil remedies for offended cisgender inmates,” the brief said. “Similar to the other gender-based segregation laws in Tennessee, trans inmates have limited legal recourse.”
TEP and the Human Rights Campaign said these policies will make the state prone to “costly litigation” in local and federal courts.