Editor’s Note: Given the limited technology and communication pathways afforded prisoners, this manuscript was edited by Reed Miller of Black and Pink, Inc.
LGBTQ people are sent to prison for a wide range of convictions, with most tracing their first incarceration to their juvenile years. LGBTQ youth are disproportionately represented in the juvenile “injustice” system. Once inside, there is systemic discrimination against the incarcerated LGBTQ community and a lack of understanding concerning the need for care and treatment of certain members of the community. Within the incarcerated transgender community, evidence clearly shows high levels of abuse and non-treatment (medical, mental health, and rehabilitation programs). Considerable efforts must be made to establish policies and programs to help prevent LGBTQ children from entering the system and, in the event that they do, to ensure they have the education, access to rehabilitative programs, and trade skills necessary to survive outside of the criminal justice system later. To address issues experienced by incarcerated LGBTQ adults, a starting place is the provision of LGBTQ-inclusive programing, designed in consultation with the prisoners themselves. Many of the recommendations for the currently incarcerated populations cost little to nothing in additional funding, but they do require time and the willingness to update current programs and modify others to include the LGBTQ incarcerated community.
LGBTQ Experiences of Incarceration
There is systemic discrimination against the incarcerated LGBTQ community and a lack of understanding concerning the need for care and treatment of certain members of the community. The foci of this paper are LGBTQ youth caught up in the juvenile “injustice” system and transgender prisoners. There are significant deficiencies in targeted programing, which if implemented, could improve the life chances of LGBTQ prisoners.
In 2015, a nationwide survey was conducted of over 1,100 incarcerated LGBTQ prisoners. The resulting report, Coming Out of Concrete Closets, found that of the respondents:[1]
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71 percent dropped out of school or were expelled
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58 percent had their first arrest when under 18 years of age
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38 percent had their first incarceration when under 18 years of age
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18 percent were homeless or transient prior to incarceration
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36 percent were unemployed prior to first incarceration
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47 percent had been in relationships involving domestic abuse while incarcerated, compared to 25 percent of gays and lesbians and 31 percent of transgender people nationally[2]
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82 percent did not know of any institutional resources that could help them if they were attempting to leave an abusive relationship
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15 percent had been excluded from a program because of their gender preference or sexuality
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20 percent had access to LGBTQ books
This report shines a bright light on several critical areas of concern. Interpreting the findings, one can infer that prison administrators are overlooking important factors during the intake and classification process. With high rates of youth leaving school and experiencing arrest and incarceration, clearly we have a system in dire need of repair.
From the author’s decades of observations, many LGBTQ prisoners suffer from gender dysphoria; post-traumatic stress disorder (PTSD); and sexual abuses including rape and domestic abuse in adolescence and/or adulthood, which includes verbal, psychological, and physical abuses due to the transphobic or homophobic views of an unaccepting family or members of the community. These are all contributing factors that often lead to involvement in one or more of the various criminalized activities.
Although the Prison Rape Elimination Act (PREA) brought forth many sweeping changes within prisons and jails, its protections have fallen short. Often prison staff use the regulations as reasons to target LGBTQ prisoners for abuse, to deny protections afforded other prisoners, or to end practices the LGBTQ prison community established for their own safety. Under the federal PREA regulations, prison administrators are forbidden from segregating LGBTQ or intersex people unless it is in connection with “a consent decree, legal settlement, or legal judgement for the purpose of protecting such inmates.”[3] Many prison administrators use this very regulation to deny requests by LGBTQI prisoners to be moved into cells with other LGBTQ prisoners where they often feel safer.
LGBTQ Youth Incarceration
A report by the Center for American Progress found that “[t]hough gay and transgender youth represent just 5 percent to 7 percent of the nation’s overall youth population, they compose 13 to 15 percent of those currently in the juvenile justice system.”[4] In a study of transgender youth involved in criminalized behaviors such as sex work, 67 percent had been arrested, and 37 percent had been incarcerated.[5] Some studies suggest that such disproportionate negative interactions with law enforcement result in incarceration due to prejudice (i.e., LGBTQ youth are more targeted than their heterosexual peers). Such arrest rates are further increased when marginalized race, gender, and class identities are factored in.[6]
In a study of incarcerated girls in Ohio, researchers were surprised to discover a lack of information gathering at intake and a desire among administrators to remain ignorant regarding past victimization of the juvenile prisoners prior to their incarceration.[7] Highlighting this deficiency, the National Center for Transgender Equality prepared guidance for intake and identification procedures and risk assessments as part of their advocate’s guide.[8]
Administrators in both the juvenile and adult criminal justice systems tend to back grant-funded programs that fail to address the early-childhood traumas that elevated risk factors that helped foster the current criminalized behaviors.[9] Some studies suggest that LGBTQ youth who have been victims of abuse are at substantial risk for substance abuse and depression,[10] transience or homelessness.[11] It has long been viewed that juvenile delinquency is directly related to associations, peer pressure, and social class. Indeed, numerous findings, and my own observations, indicate that many LGBTQ youth who try to “fit in” with a heteronormative lifestyle and have only heterosexual associates present significant predictors for criminalized behavior.[12]
Trans Adult Incarceration
A joint survey conducted by the National Gay and Lesbian Taskforce and National Center for Transgender Equality found that nearly one in six transgender people in the United States has been sent to jail or prison. Transgender people of color experience incarceration at the following higher than average rates: Black (47 percent), American Indian (30 percent), and Latino/a (25 percent). Transgender women are incarcerated at around twice the rate of transgender men, 21 percent and 10 percent, respectively.[13]
Within the incarcerated transgender community, the evidence clearly shows high levels of abuse and non-treatment (e.g. by medical, mental health, and rehabilitation programs). A 2009 study found that 59 percent of surveyed transgender prisoners in California suffered sexual assault compared to 4 percent of a random sample.[14] Of transgender and gender nonconforming people, 41 percent have attempted suicide, compared with 1.6 percent of the general population;[15] tragically, these rates are likely higher within prison.
Despite these statistics, most prisons have no support groups or gender-affirming information for LGBTQ people. It is left to the prisoner to seek out this information from outside sources—if prison administrators will even permit the materials into their institutions. Often prison administrators refuse to permit LGBTQ material. This is likely due to a general belief among administrators that homosexuality is against the rules and causes problems within the prison system, so they will not support it on any level and often conflate homosexuality and transgenderism. Lawyers from the ACLU suggest that this logic was behind Kansas state prisons’ prohibition on mail “promoting homosexuality.”[16] Indeed, a third of LGBTQ prisoners surveyed reported disciplinary action for engaging in consensual sex, demonstrating that queer sex is “against the rules.”[17]
Case Study: Author’s Name Change in Missouri
The Circuit Court of Cole County, Missouri, issued an order granting a petition for legal name change for Patricia Trimble on 17 September 2018.[18] The Missouri Department of Corrections indicated that they would be willing to pay for a copy of the new birth certificate but refused to give the proper forms required to affect the change or exercise their waiver of processing fee. The author was forced to pay the processing fee to have her birth certificate altered. When the birth certificate arrives (it is still being processed as of this writing), she will then have to proceed with the process to change her name on her Social Security card. All of these are simple processes made complicated by a non-affirming agency that is unwilling to even offer guidance.
Lack of Programming for Incarcerated LGBTQ People
Many well-meaning policy makers try to combat recidivism but overlook the very policies designed to help curb incarceration in the first place, claiming insufficient resources. Failing to adequately fund programs aimed to reduce recidivism results in ever-growing prison populations and the continued building of ever more prisons at substantially greater costs.
Few prisons offer support groups for LGBTQ-based issues, and none have attempted to tailor the programs they do offer to the unique needs of the LGBTQ community. Many will even go so far as to state that it is a prisoner’s own sexuality or gender identity that brought them to prison, implying that they are hanging out with the wrong crowd. This thought pattern is discriminatory and simply leaves an entire segment of America’s prison population without effective treatment for the root causes of their incarceration. As a result, we see high rates of recidivism within the incarcerated LGBTQ community. Even when local LGBTQ organizations reach out and offer guidance and support to LGBTQ prisoners, prison administrators have been observed to disregard the efforts.
This pattern of disregard of LGBTQ prisoners contrasts with efforts around women prisoners. Long ago, prison administrators recognized that women sent to prison have unique and differing needs from men. Although the same societal, socioeconomic, and/or psychological conditions exist, it is recognized that there is a need for additional treatment options due to more frequent experiences of trauma from dysfunctional and/or abusive relationships, emotional abuse, sexual abuse, and other conditions. Yet these same administrators do not acknowledge that there is a sizeable number of LGBTQ prisoners who suffer from similar abuses as many of their straight cisgender women counterparts. This very refusal to recognize what is so obvious—so easily discovered during intake classification procedures—and the refusal to provide the incarcerated LGBTQ population with much needed services lead the author to conclude that those same administrators are guilty of discrimination in areas of education, rehabilitation, and mental health services based on an inmate’s sexual orientation or gender identity.
Existing prison programs are typically neutral with regards to gender and sex and, further, do not contain the elements necessary to address symptoms of spousal abuse, domestic violence or rape, all of which we see in shocking frequency within LGBTQ prison populations. Programs consist of classes, counseling, and vocational opportunities. Classes found at most prisons are for anger management, alcoholism, drug addiction, and the GED. Counseling is provided for various psychological disorders including PTSD, depression, anxiety, and most psychoses. In effect, these gender- and sex-neutral programs are designed to muzzle the LGBTQ prisoner, forcing them to avoid talking about their sexuality, gender identity, or same-sex relationships. When LGBTQ identities are not permitted in the conversation, discrimination based on sexuality or gender identity is an ever-present specter preventing core issues from being brought to the forefront for resolution. Further, even in existing programming, there are a shocking number of cases where LGBTQ prisoners are denied access to programs and vocational opportunities simply due to their identities.
Our prison systems rely on antiquated research models for development and implementation of programs and policies. One such model is the salient factor score, developed as a result of studies within the US Parole Commission.[19] In it, every proposed program is first weighed against the objectives of the scoring index versus similar programs. If it is concluded that the proposed program would not make a significant change to a large enough population, the program is rejected.
This logic of effectiveness pervades government decision-making processes. For example, the military uses similar assessments to determine acceptable civilian casualties prior to a mission in populated areas. Only strikes by US military expected to kill over 30 civilians required special clearance in the early months of the Iraq War in 2003.[20] More recently in Syria, soldiers were permitted to kill up to 10 civilians; additional deaths simply needed additional approval.[21] While the comparison may seem dramatic, in effect, models such as the salient factor score amount to prison administrators determining an acceptable number of LGBTQ casualties by denying programming.
Case Study: Education Support Group for Transgender and Gay Inmates at Jefferson City Correctional Center
In recent years, prisoners have led attempts to enhance programming, only to have these attempts rebuffed by prison authorities who seek to maintain the status quo. A recent incident highlights this: Recently, Dr. Sonia Dhaliwal of the Educational, School and Counseling Psychology Department at the University of Missouri – Columbia, sent a letter to the Missouri Department of Corrections. In the letter, she stated that the Counseling Psychology Department at the University of Missouri was in full support of the education support group for transgender and gay inmates at Jefferson City Correctional Center. She proceeded to offer that the group be facilitated by two of the department’s doctoral students. Rather than approve this request—and take her up on this generous offer—it was forwarded to the offices of the director of Corrections. After almost a year of silence, the generous offer was declined without so much as a letter or phone call to the university explaining why.
Conclusion and Recommendations
Criminalized LGBTQ Youth
With such a large percentage of LGBTQ prisoners having first been incarcerated within the juvenile justice system, it seems only logical to put forth considerable efforts to establish policies and programs to help prevent children from entering the system and, in the event that they do, to ensure they have the education, access to rehabilitative programs, and trade skills necessary to survive outside of the criminal justice system later. Our LGBTQ children cannot continue to be treated as some form of a disposable commodity, simply to be thrown away for being raised in an unaccepting home or for having made bad choices.
Policy Changes Must Be Made within the Education System at the K–12 Level
While many children are accepting of their LGBTQ friends and classmates, school administrators and parents, often with outdated and archaic values and prejudices, may still facilitate extreme harm toward LGBTQ students, while instilling unfounded prejudices in non-LGBTQ children. Thus, it is recommended that strong legal protections be applied by including sexuality and gender identity as categories of legally cognizable discrimination. This would force educational institutions to apply nondiscrimination policies that protect the LGBTQ students or risk losing federal grant funding. Furthermore, funding must be increased to organizations and programs that provide services to at-risk LGBTQ children before they end up in the juvenile justice system. These organizations should all provide counseling and mental health referrals for those most in need. Funding also must be made available to help pay for mental health and substance abuse services as well as the development of mentorship programs within our communities. It is imperative that everything is done to help keep our children out of the hands of the juvenile justice system. Finally, schools must work hand-in-hand with local LGBTQ organizations in order to better understand the sometimes unique needs of our LGBTQ children and refer at-risk students to local mentoring programs.
Laws Must Be Passed Ensuring that Children within the Juvenile Justice System Are Housed in Improved Facilities
To meet the needs of incarcerated LGBTQ children, facilities housing children within the juvenile justice system must be:
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Fully funded in areas of education (with special emphasis on special needs children) and certified within their state as a fully functioning and accredited educational center with the ability to prepare students for college
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Equipped to provide vocational training to ensure that those who cannot return to school or to their homes can support themselves without resorting to criminalized economies
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Connected with federal housing grants accessible to emancipated juveniles, so that upon release they have the best chances for reintegration into society
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Staffed with certified and licensed psychologists trained to offer treatment and counseling to LGBTQ children and given the authority to report instances of discrimination based on sexual orientation or gender identity
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Equipped to provide treatment and counseling for physical, sexual, and emotional abuse as needed
Change takes time, but without change we stand to lose a large percentage of our community to the very system that seeks to silence us. While our community leaders put forth changes in legislation and policy, we have to give ourselves and our resources to those organizations who so selflessly and tirelessly work to keep our children off of the streets, helping them to escape sex work, drugs, homelessness, and prison. Once a child is incarcerated into the juvenile justice system, the likelihood of that child ending up in prison as an adult increases dramatically.
Incarcerated LGBTQ Adults
If there is to be the expectation of successful reentry into society upon completion of sentences, changes in classification and rehabilitative programs must be modified to be inclusive to LGBTQ prisoners. Prisoners must be consulted throughout the development of the programs to maximize effectiveness. Continued exclusion of LGBTQ prisoners simply does not satisfy or address the root causes of the criminal actions marginalized individuals are often forced into.
Prisons Conditions Must Be Improved for LGBTQ Adults
To ensure that prisons are equipped to fully rehabilitate LGBTQ adults, provision of the following training and resources must be prioritized:
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Rehabilitation programs that are LGBTQ inclusive and provide specific programs dealing with issues identified by incarcerated LGBTQ prisoners
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Training for staff to help identify LGTBQ prisoners who may suffer from the effects of domestic violence or abusive relationships and counseling and therapy for those who have suffered from such abuses. Such resources should be informed by the guidance of established LGBTQ organizations
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A national reporting system to report instances of discrimination within the prison systems as it relates to programs that may receive full or partial funding from the federal government
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Interviews of prisoners in order to revise the current regulations governing PREA to make it harder for institutional administrators to use the PREA standards to further suppress LGBTQ populations. Such revisions should address the faults in PREA implementation and focus on defining and interpreting PREA provisions in a manner consistent with supporting LGBTQ prisoners
Often when changes are proposed, administrators decry lack of financial resources for implementation, opting for the status quo instead. Many of the recommendations listed here for the currently incarcerated populations cost little to nothing in additional funding, they but do require time and the willingness to update current programs and modify others to include the LGBTQ incarcerated community. If there is any hope of truly supporting LGBTQ prisoners, such resources must be invested.
References:
[1] Jason Lydon et al., Coming Out of Concrete Closets: A Report on Black and Pink’s National LGBTQ Prisoner Survey (Black and Pink, October 2015) [PDF file].
[2] Taylor Brown and Jodie Herman, Intimate Partner Violence and Sexual Abuse among LGBT People (The Williams Institute, November 2015) [PDF file].
[3] 28 Code of Federal Regulations § 115.42.
[4] Jerome Hunt and Aisha C. Moodie-Mills, “The Unfair Criminalization of Gay and Transgender Youth,” Center for American Progress (blog), 29 June 2012, https://www.americanprogress.org/issues/lgbt/reports/2012/06/29/11730/the-unfair-criminalization-of-gay-and-transgender-youth/.
[5] Robert Garofalo et al., “Overlooked, misunderstood and at-risk: Exploring the lives and HIV risk of ethnic minority male-to-female transgender youth,” Journal of Adolescent Health 38, no. 3 (2006): 230–6.
[6] Laura Garnette et al., “Lesbian, Gay, Bisexual, and Transgender (LGBT) Youth and the Juvenile Justice System,” In Juvenile Justice: Advancing Research, Policy, and Practice, F.T. Sherman and F.H. Jacobs, eds. (Hoboken, NJ: Wiley, 2001), 156–73.
[7] Joanne Belknap, Kristi Holsinger, and Jani Little, “Sexual Minority Status, Abuse, and Self-Harming Behaviors among Incarcerated Girls,” Journal of Child & Adolescent Trauma 5, no. 2 (2012): 173–85.
[8] Jody Marksamer and Harper Jean Tobin, Standing with LGBT Prisoners: An Advocate’s Guide to Ending Abuse and Combating Imprisonment (Washington, DC: National Center for Transgender Equality, 2014) [PDF file].
[9] Regina A. Arnold, “Processes of Victimization and Criminalization of Black Women,” Social Justice 17, no. 3 (1990)” 153–66; K.A. Dodge, J.E. Bates, and G.S. Pettit, “Mechanisms in the cycle of violence,” Science 250, no. 4988 (1990): 1678–83; Mary E. Gilfus, “From Victims to Survivors to Offenders: Women’s Routes of Entry and Immersion into Street Crime,” Women & Criminal Justice 4, no. 1 (2008): 63–89; C.S. Widom, “The cycle of violence,” Science 244, no. 4901 (1989): 160–6.
[10] Michelle Birkett, Dorothy L. Espelage, and Brian Koenig, “LGB and Questioning Students in Schools: The Moderating Effects of Homophobic Bullying and School Climate on Negative Outcomes. Journal of Youth and Adolescence 38, no. 7 (2009)” 989–1000; Stephen T. Russell and Kara Joyner, “Adolescent Sexual Orientation and Suicide Risk: Evidence from a National Study,” American Journal of Public Health 91, no. 8 (2001): 1276–81; Stacy Salomonsen-Sautel et al., “Correlates of Substance Use Among Homeless Youths in Eight Cities,” American Journal on Addictions 17, no. 3 (2010): 224–34; N. Eugene Walls et al., “Correlates of Cutting Behavior among Sexual Minority Youths and Young Adults,” Social Work Research 34, no. 4 (2010): 213–26.
[11] Garofalo et al., “Overlooked, misunderstood and at-risk”; A. Nesmith, “Predictors of running away from family foster care.,” Child Welfare 85, no. 3 (2006): 585–609; Salomonsen-Sautel et al., “Correlates of Substance Use Among Homeless Youths in Eight Cities”; Walls et al., “Correlates of Cutting Behavior among Sexual Minority Youths and Young Adults.”
[12] Danielle A. Soto, “Sexual Orientation, Gender & Adolescent Involvement In Delinquency” (master’s thesis, Bowling Green State University, 2007).
[13] Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (Washington: National Center for Transgender Equality, National Gay and Lesbian Task Force, 2011) [PDF file].
[14] Valeria Jenness, Transgender Inmates in California’s Prisons: An Empirical Study of a Vulnerable Population (Irvine, CA: Center for Evidence-Based Corrections, Department of Criminology, Law and Society, University of California, Irvine, 2009) [PDF file].
[15] Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.
[16] Steve Bittenbender, “Kentucky prisons mail policy on homosexuality under review – official,” Reuters (blog), 21 March 2016, https://www.reuters.com/article/us-kentucky-prison-homosexuality-idUSKCN0WN25L.
[17] Lydon et al., Coming Out of Concrete Closets: A Report on Black and Pink’s National LGBTQ Prisoner Survey.
[18] IN RE PATRICK E TRIMBLE #39226 (E-CASE) (Cole Circuit, Missouri October 17, 2018), 2018 USA CaseNet 18AC-FC00392.
[19] Don M. Gottfredson, Leslie T. Wilkins, and Peter B. Hoffman, Guidelines for Parole and Sentencing: A Policy Control Method (Toronto: Lexington Books, 1978).
[20] Sharon Otterman, “The Calculus of Civilian Casualties,” The Lede (blog), 6 January 2009, https://thelede.blogs.nytimes.com/2009/01/06/the-calculus-of-civilian-casualties/.
[21] Ali Watkins, “This Is How The U.S. Decides How Many People It Can Kill In Syria,” BuzzFeed News, 28 February 2016, https://www.buzzfeednews.com/article/alimwatkins/syria-civilian-casualties-policy.