LGBT people in prison
Lesbian, gay, bisexual, and transgender prisoners often face additional challenges compared to non-LGBT prisoners. According to Just Detention International, LGBT inmates are "among the most vulnerable in the prison population". 67% of LGBT prisoners in California report being assaulted while in prison. The vulnerability of LGBT prisoners has led some prisons to separate them from other prisoners, while in others they are housed with the general population.
While much of the available data on LGBT inmates comes from the United States, Amnesty International maintains records of known incidents internationally in which LGBT prisoners and those perceived to be lesbian, gay, bisexual or transgender have suffered torture, ill-treatment and violence at the hands of fellow inmates as well as prison officials. Historically LGBT people in the United States have been socially and economically vulnerable due to their queer status. Policy, policing and the criminal justice system have historically perpetrated violence upon marginalized populations, like the queer community. This along with criminalizing same sex behaviors have created a disproportion of LGBT people in prisons.
Coming out
Many LGBT inmates who are able, even those who are openly gay outside of prison, stay in the closet with their sexual identities while imprisoned, because inmates who are known or perceived as gay, especially lesbians and gay men with stereotypical butch or effeminate characteristics, respectively, face "a very high risk of sexual abuse".The Los Angeles County Men's jail segregates openly gay and transgender inmates, however, only if they are openly gay and if the staff that is inspecting them perceives them to be gay or trans enough for segregation. Even through attempts from gay and trans men trying to seek a safer place, the jail only segregates those that fit into their definition of gay and trans, often only accepting those they deem vulnerable enough.
Sexual assaults in prison are increasingly common: in 2011 sexual assault claims were 8,768, but 4 years later in 2015 they rose to 24,661. The data does not identify the victims nor perpetrators sexuality, but the increase in assault claims and increase in cases with evidence suggests that there is an increase in assaults against LGBT individuals. LGBT individuals are often subject to physical violence when they attempt to resist sexual abuse or sexual degradation, and can be targeted due to perceived femininity as well as if their sexual orientation is known. These individuals can be targeted because of their sexuality and attitudes towards LGBT people. In some instances, LGBT prisoners who are outed have been punished for attempting to repel an alleged aggressor, sometimes ending up in solitary confinement.
Denial of access to surgical sex reassignment on the grounds of unstable or criminal behavior condemns those who are transgender. Resulting in potential continuing identity confusion, low self-esteem, drug and alcohol abuse, self-mutilation and acting out behavior. Which further facilitates the vicious cycle of chronic dysfunction, which perpetuates criminal behavior.
Transgender issues
Many transgender prisoners need resources and support, and much work remains to be done. Some organizations that used to focus on women's issues have expanded to include transgender people and gender non-conforming people in their work. Certain actions can and do improve the lives of trans prisoners. The papers and maintain that individuals should always be addressed and placed based on their gender identity rather than their genitalia.Australia
The bill mentioned in "Transgender Prisoners: A Critical Analysis of Queensland Corrective Services' New Procedure" has shown to be largely ineffective.Italy
In 2010 it was reported that Italy was to open its first transgender prison at Pozzale, a decision welcomed by gay rights groups. The prison has not been created yet.Japan
One in 13 Japanese people identify as LGBT, or about 7.6% of the population. Japan does not criminalize same-sex sexual acts, and transgender people are able change their gender through the Family Registry if certain conditions are met. However these conditions include requiring “gender confirmation surgery, being over 20 years old, being unmarried while applying to legally change one's gender, having no minor children, and being deprived of their reproductive organ or reproductive ability” according to Amnesty International. If a person has not legally registered to change their gender before being incarcerated, they will be sent a prison that matches their gender assignment at birth. Additionally Japanese prisons are not required to provide hormone therapy for transgender inmates; since the medication isn't to treat a disease, the prisons aren't required by law to treat them. According to Amnesty International “Japan's Act on Penal Detention Facilities and Treatment of Inmates and Detainees does not have specific clauses that cover the treatment of detainees based on sexual orientation or gender identity”. However Article 34.2 of Act on Penal Detention requires that female prison officers examine female detainees, and the practice is also extended to transgender women regardless of their status with gender confirmation surgery or not.United States
Housing
U.S. prisons have a general policy of housing prisoners according to their sex as assigned at birth or genital configuration, regardless of their current appearance or gender identity. Transgender women with breasts may be locked up with men, leaving them vulnerable to violence and sexual assault, as occurred with the case of Dee Farmer, a pre-operative transgender woman with breast implants, who was raped and contracted HIV when she was housed in a men's prison. Transgender men housed in women's prisons also face abuse, often more from guards than other inmates.U.S. prisons view gender and sex as binary; this includes prison dress codes, which prevent gender-nonconforming individuals from dressing to match their gender identity. There is often little gender-confirming healthcare provided. While transgender prisoners used to be permitted to be housed according to the gender with which they identify, this rule was reversed, as announced by the U.S. Bureau of Prisons in May 2018. Now, housing is once again to be determined by biological sex.
On November 14, 2013, Harris County, Texas adopted an LGBT inmate policy, intended to protect and assure equal treatment of gay, lesbian, bisexual and transgender inmates. This allows individuals to be housed based on the gender they identify with instead of their biological sex. The policy also outlines how inmates will be searched. It includes a "safe zone project" that will endorse a "positive relationship of solidarity" connecting the sheriff's department and the gay community. Another policy states that members of the transgender community will be referred to by their chosen name, even if it has not legally been changed, both when spoken to and on their identifications bracelets. The sheriff's office in Harris County has a training and certification program for staff members to become a "gender classification specialist" and have authorization to hold discussions with inmates about gender issues.
Healthcare
Some courts in the US have ruled that hormone replacement therapy is a necessary medical treatment to which transgender prisoners are entitled. In the early 2000s, California Medical Facility, Vacaville, provided this medical treatment for male-to-female prisoners. Additionally, access to psychological counseling and to supportive underclothing like bras can help individuals live as the gender with which they self-identify.In June 2019, Layleen Polanco, a transgender woman of color, died of an epileptic seizure in solitary confinement on Rikers Island. Guards had noticed that she was unresponsive but waited 90 minutes to seek help. A year later, it was reported that 17 corrections officers would be disciplined as a result of the incident.
Demographics
In 2011, the National Transgender Discrimination Survey found that 35% of black transgender Americans believe that they have been incarcerated simply due to perceived anti-trans bias, compared to 4% of white transgender respondents. Black transgender people had higher rates of experiences of incarceration in general. It also found that black trans women were sexually assaulted in jail at a rate of 38%, compared to 12% of white trans women prisoners.Conjugal visits
A conjugal visit is a scheduled extended visit during which an inmate of a prison is permitted to spend several hours or days in private with visitors, usually family members, in special rooms, trailers or even decorated, apartment-like settings on prison grounds. While the parties may engage in sexual intercourse, in practice an inmate may have several visitors, including children, as the generally recognized basis for permitting such a visit is to preserve family bonds and increase the chances of success for a prisoner's eventual return to life outside prison. Laws on conjugal visits vary widely by country from a total prohibition to very permissive policies. In jurisdictions where there is some form of recognition of same-sex relationships, prisoners may be permitted conjugal visits with a same-sex partner. In the United States, conjugal visits are allowed only in four states: California, Connecticut, New York and Washington.Same-sex conjugal visitation by country
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Health care among LGBT Prisoners by country
According to Masen Davis, Executive Director of the Transgender Law Center, LGBT people in prisons often face barriers in seeking basic and necessary medical treatment, exacerbated by the fact that prison health care staff are often not aware of or trained on how to address those needs.United States
In May 2006, two transgender prisoners filed suit in January 2008 challenging a Wisconsin law that bars inmates from receiving hormones or sex reassignment surgery notwithstanding Principle 9 of The Yogyakarta Principles. The significance of the Yogyakarta Principles is also stressed by "Handbook on Prisoners with Special Needs" published by the United Nations Office on Drugs and Crime.As far as constitutional law is concerned, in result of Farmer vs. Brennan, in accordance with the Eighth Amendment, prison officials cannot deliberately be indifferent towards blatant abuse directed against transgender prisoners. The protection of prisoners in the Eighth Amendment also extends to medical health care. Of the transgender inmates serving in Federal or State prison, 75%-90% desire gender reassignment surgery and 85% desire hormone therapy. This " treatment is critical to maintain the health and safety of inmates, as without it, transgender prisoners may fall into deeper depression and have greater risk of life-threatening autocastration".
Solitary confinement is a potential punishment for those in prison, and it has known effects on prisoner health and mental health. LGBT prisoners face similar risks as the general population, and especially in the case of transgender individuals may be placed into solitary for their own protection. The state however does not provide treatment for declining mental health, and prisoners in solitary have a hard time getting their medications. For transgender individuals this can mean missing hormone treatments and other necessary medical care. Many prisons deny health care to transgender inmates, relying on binary medical services in gender-separated prisons. Furthermore, many are denied psychological treatment for Gender Dysphoria: distressed caused by a mismatch of gender hormones and physical genitalia.
Canada
On August 31, 2001, the Canadian Human Rights Tribunal concluded that Sections 30 and 31 of the Correctional Service of Canada contained discrimination on the basis of sex and disability in Canadian Human Rights Act. After Synthia Kavanagh, a trans woman sentenced for life in 1989 for 2nd-degree murder, was sent to an institution for males. This institution assignment occurred despite the trial judge's recommendation that Synthia, as a trans woman, serve her sentence in a facility for women. Further, Synthia was denied sex reassignment surgery and hormones. The institutional policy, at the time, only facilitated cases which addressed conditions in which, reasonably, the plaintiff would seek sexual reassignment after the period of incarceration. Due to Synthia Kavanagh's life sentence, this was not a foreseeable option. "The decision to discontinue hormones in 1990 seems to have been based on the complainant's life sentence which made her, according to Dr. R. Dickey, apparently ineligible for ultimate reassignment.... the diagnosis of transsexualism has been clearly established in this case" by expert witness testimony, throughout her trial, "She responded well to feminizing effects of cross-gender hormones and has experienced no significant side effects. As established by legal precedent and confirmed by policy in Canadian and British Columbia Corrections Service, the complainant was entitled to continue her hormone treatment".In Petitioning the Canadian Human Rights Tribunal, Kavanagh argued that "The Correctional Service of Canada has discriminated and continues to discriminate against me because of my disability and sex, contrary to Section 5 of the Canadian Human Right Act, by refusing to provide me with necessary medical and surgical treatment." Kavanagh continues to elaborate on her transition prior to imprisonment in this address, stating "since 1981 I have been diagnosed as a transsexual, which means that my gender is female but my sex is male. For 13 years, I was on estrogen hormonal treatment and lived as a woman, in preparation for my sex reassignment surgery to correct my medical disorder. In May 1990, my hormonal treatment was discontinued." After incarceration in a men's facility Kavanagh "repeatedly asked the CSC to arrange for evaluation for sex reassignment surgery, for the surgery to be performed and my consequent transfer to a women's institution." The discontinuation of hormone treatment and rejection of proposed sex reassignment surgery, paired with the continuation of periods of solitude prompted Kavanagh to respond "I believe that the CSC Policy discriminates against transsexuals, as the policy does not recognize the need for the continuation of medical treatment at the onset of incarceration, nor does the policy acknowledge the psychological need to be imprisoned with other members of one's psychological sex at the time of incarceration."
The issue of surgical reassignment has worrying implications for incarcerated transgender people. Individuals serving life sentences or other periods of prolonged incarceration may be less able to "prove" that they live socially as their gender; because this is a requirement to qualify for surgical reassignment, it constitutes a serious institutional barrier for transsexual people attempting to access gender-affirming care.
Russia
Homosexuality is no longer criminalized in Russia, but “new laws have restricted LGBT and human rights organizations, limited LGBT content on the Internet, and restricted international funding for all non-governmental organizations, including AIDS Service organizations and LGBT groups.” HIV was the first and third leading causes of premature disability and mortality in Russia, and was initially concentrated among injecting drug users and their sex partners, and recently the transmission is being reported among men who have sex with men or MSM. “Recent studies have identified significant risks for HIV and prevalence estimates of 5.5–6.0% among MSM in St. Petersburg and Moscow.” Russia requires reporting of HIV positive diagnosis, which many immigrants avoid participating in as it could prevent them from entering the country, or they could be detained and expelled from the country as well. Homosexuality or the advocacy of LGBT rights in Turkmenistan, Uzbekistan is criminalized, which causes many LGBT people to migrate to Moscow. As a result, fear of testing HIV positive and being expelled from Russia to return to their countries of citizenship where they could in turn have their sexual behavior criminalized, prevents many immigrants in Russia from accessing the health care and treatment they need.Hungary
Hungary has compulsory HIV testing, which is part of the Ministry of Health regulations, which requires prostitutes, homosexuals, and prisoners be tested for HIV. When prisoners are found to be HIV positive they are taken to a special unit in Budapest. Units for HIV positive prisoners are staffed with individuals who are trained and who understand the problems of HIV. Specialized treatment of HIV are only available at one hospital in Budapest. HIV treatment for prisoners is paid for by the NHS. These prisoners have their own cells with their own showers, a community room with games, and a social worker available to them. Post test counseling is also provided.LGBT youth prisoners in the United States
According to some studies, LGBT youth are particularly at risk for arrest and detention. Jody Marksamer, Shannan Wilber, and Katayoon Majd, writing on behalf of the Equity Project, a collaboration between Legal Services for Children, the National Center for Lesbian Rights, and the National Juvenile Defender Center, say that LGBT youth are over represented in the populations of youth who are at risk of arrest and of those who are confined in juvenile justice facilities in the United States.Many LGBT youth often experience being cast aside from their families and hostile environments while at school. The school system fails many LGBT students through their zero-tolerance policy which is meant to protect them but often results in LGBT students being arrested or given harsh disciplinary action. According to "Messy, Butch, and Queer: LGBTQ Youth and the School-to-Prison Pipeline", LGBT youth are often blamed for the harassment they receive despite the fact that they are being targeted solely upon their sexual orientation or the way the LGBT students present themselves.
Queer youth are also socially and economically vulnerable, especially in regards to high rates of homelessness. This vulnerability can lead to illegal behavior, and also over policing when homeless, creating an over representation of LGBT youth in prisons. See Homelessness among LGBT youth in the United States, and LGBT youth vulnerability.
A brief by the Center for American Progress found that each year approximately 300,000 gay, trans, and gender nonconforming youth are arrested or detained each year, 60% of whom are Black or Hispanic. These queer youth make up 13–15 percent of the juvenile incarceration system, compared to their overall population of 5–7 percent. Similar to how transgender adults are often placed into solitary confinement, allegedly for their own protection, these youth are "protected" in the same way. Often, however, it is because they are seen as sexual predators rather than potential victims. Courts also commonly assign queer youth to sex offender treatment programs even when convicted of a non-sexual crime. "As 12% of adjudicated youth in juvenile facilities reported experiencing sexual abuse in 2009” according to a report from the Juvenile Law Center.
Physical and sexual abuse
According to Amnesty International, globally, LGBT prisoners and those perceived to be LGBT, are at risk of torture, ill-treatment and violence from other inmates as well as prison officials. Amnesty International cites numerous cases internationally where LGBT inmates are known to have been abused or murdered by prison officials or fellow inmates.Statistics show that 59% of transgender women in male prisons had been sexually assaulted while incarcerated compared to the 4% of the male-identified population. Transgender women in male prisons also deal with the risk of forced prostitution by both prison staff and other prisoners. Forced prostitution can occur when a correction officer brings a transgender woman to the cell of a male inmate and locks them in so that the male inmate can rape her. The male inmate will then pay the correction officer in some way and sometimes the correction officer will give the woman a portion of the payment.
"risoners fitting any part of the following description are more likely to be targeted: young, small in size, physically weak, gay, first offender, possessing "feminine" characteristics such as long hair or a high voice; being unassertive, unaggressive, shy, intellectual, not street-smart, or "passive"; or having been convicted of a sexual offense against a minor. Prisoners with any one of these characteristics typically face an increased risk of sexual abuse, while prisoners with several overlapping characteristics are much more likely than other prisoners to be targeted for abuse."
In the United States
Gay and bisexual men are often assumed to be responsible for the preponderance of sexual assaults perpetrated in prisons as has been reflected in various American judicial decisions. For example, in Cole v. Flick the court upheld the right of prisons to limit the length of inmates' hair, claiming that allowing them to wear long hair could lead to an increase in attacks by "predatory homosexuals". In Roland v. Johnson, the court described "gangs of homosexual predators". And Ashann-Ra v. Virginia contains references to "inmates known to be predatory homosexuals other inmates in the showers".According to a study by Human Rights Watch, however, "The myth of the 'homosexual predator' is groundless. Perpetrators of rape typically view themselves as heterosexual and, outside of the prison environment, prefer to engage in heterosexual activity. Although gay inmates are much more likely than other inmates to be victimized in prison, they are not likely to be perpetrators of sexual abuse."
A related problem is that there is a tendency, among both prison officials and prisoners, to view victimization as proof of homosexuality: "The fact of submitting to rape—even violent, forcible rape—redefines as 'a punk, sissy, queer.'" Officials sometimes take the view all sex involving a gay prisoner is necessarily consensual, meaning that victims known or perceived to be gay may not receive necessary medical treatment, protection, and legal recourse, and perpetrators may go unpunished and remain able to perpetrate abuse on their victims:
According to Andrea Cavanaugh Kern, a spokesperson for Stop Prisoner Rape, the combination of high rates of sexual assault against gay prisoners and high rates of HIV infection in the prison population is "a life-or-death issue for the LGBT community".
While much of the data regards male prisoners, according to Amnesty International, "perceived or actual sexual orientation has been found to be one of four categories that make a female prisoner a more likely target for sexual abuse".
Colombia
In 2019, la Defensoría del Pueblo identified 285 cases of violence and discrimination against LGBTI prisoners. Over a third of these victims were transgender. One-eighth were Venezuelan.Segregation
For their own safety, LGBT people in prison are sometimes placed in administrative segregation or protective custody. Although homosexuality is "generally regarded as a factor supporting an inmate's claim to protective custody", homophobia among prison officials and a misperception among many guards that "when a gay inmate has sex with another man it is somehow by definition consensual" mean that access to such custody is not always easy or available.Another problem is that protective and disciplinary custody are often the same, which means that prisoners in "protective housing" are often held with the most violent inmates in highly restrictive and isolated settings—sometimes in more or less permanent lockdown or solitary confinement—that prevent them from participating in drug treatment, education and job-training programs, from having contact with other prisoners or outside visitors, or from enjoying privileges such as the right to watch television, listen to the radio, or even to leave their cells. The degree of safety that protective custody provides depends on the facilities. Protective custody can provide a secure environment that is free from violence by other prisoners or it can isolate prisoners, and position them with a higher risk of violence by a correctional officer. Although the protective custody can offer some level of protection, the harmful physical and psychological impacts of isolation show that it is an unwanted alternative to assignment in the general population.
In other cases, institutions may have special areas for housing vulnerable inmates such as LGBT people, elderly or disabled prisoners, or informers.
LGBT Prison Segregation in the United States
In San Francisco, for example, transgender inmates are automatically segregated from other prisoners. Nevertheless, according to Eileen Hirst, San Francisco Sheriff's Chief of Staff, being gay is not in itself enough to justify a request for protective housing: inmates requesting such housing must demonstrate that they are vulnerable.For financial or other reasons segregated housing is not always available. For instance at Rikers Island, New York City's largest jail, the segregated unit for LGBT prisoners, known as "gay housing", was closed in December 2005 citing a need to improve security. The unit had opened in the 1970s due to concerns about abuse of LGBT prisoners in pretrial detention. The New York City Department of Corrections' widely criticised plan was to restructure the classification of prisoners and create a new protective custody system which would include 23-hour-per-day lockdown or moving vulnerable inmates to other facilities. Whereas formerly all that was required was a declaration of homosexuality or the appearance of being transgender, inmates wanting protective custody would now be required to request it in a special hearing.
Solitary confinement
has become the prison system's preferred method to protect transgender inmates from other prisoners in cases involving sexual assault, harassment and physical violence. Advocates for transgender prisoners argue that this method only increases the harassment they receive from officers and various other staff members as reported by Injustice at Every Turn.Solitary Confinement in the United States
In the report, 44% of transgender male respondents and 40% of transgender women respondents who were imprisoned reported being harassed by officers and/or other staff members of the prison system. While in solitary confinement, transgender individuals are less likely to receive medical care.Out of the respondents in the same report 12% of transgender individuals surveyed reported being denied routine non-transition related healthcare and 17% reported being denied hormone treatment. The number was disproportionately higher when transgender people of color reported lack of transition health care and hormone treatment with American Indians reporting 36% denial and Black and/or African American reporting a 30% denial rate. The use of solitary confinement also lessens transgender inmate's access to programs and work assignments where they may be able to lessen their sentences, enter rehabilitation programs, or earn money to buy basic products such as soap and also lessens their chances to obtain parole or conditional release.
Solitary confinement has also shown to affect the mental health of transgender prisoners. With the report of filed by Injustice at Every Turn, 41% of respondents reported attempted suicide. With transgender people of color, 56% of American Indian and 54% of multiracial individuals reported attempted suicide. The report also links the over-use of solitary confinement as a factor in the high rate of suicide attempts by transgender people of color within the prison system.
In addition to the conditions themselves amounting to torture, solitary confinement usually restricts a person’s access to education, work, and program opportunities. While mental health is a key priority and emphasis for inmates subjected to solitary confinement, there are other discriminatory disadvantages that come with it as well. For example, education and work programs are often essential prerequisites to achieving good time and parole. This means that many LGBT people, who are more likely to be placed in solitary confinement, are also less likely to be paroled or released early, forcing them to serve out their maximum sentences. Activists argue that members of the LGBT community should have equal access to prison programs and services, a right protected and provided for under the Fourteenth Amendment of the U.S. Constitution.
According to Title IX of the Education Amendments, discrimination on the basis of sex is illegal. Many education programs in prisons, jails, and juvenile detention centers are funded by the Federal government and those who take funding from the government must adhere to the full tenets of these amendments. Title IX extends to protect inmates who are denied access to prison programs and resources because of their gender identity or sexual orientation. The Fourteenth Amendment asserts that all inmates should have equal access to libraries, educational programs, the internet, and corresponding resources.
Solitary Confinement in Canada
In cases where the incarcerated are assigned to prisons based on sex, rather than their gender-identity, complete segregation is often seen as the only viable way for ensuring safety. In the case of Synthia Kavanagh, she was assigned to a male institution despite explicit recommendations from the trial judge. As a result, Kavanagh was "placed in segregation over extended periods of her incarceration for the purpose of protection from self-harm or abuse by others. Segregation for prolonged periods is not only inhuman but unconducive to any prospect of stabilization or rehabilitation."Support for LGBT people in prison
As a result of the rise of awareness of LGBT persons in prisons, many organizations have developed specifically to support LGBT people in the prison system. These organizations address the various needs surrounding specific issues that LGBT persons in the prison system face. Some organizations also support family members of LGBTQ inmates.Black and Pink is an American organization that is composed of "LGBTQ prisoners and 'free world' allies" who focus on prison abolishment movement and support LGBTQ prison inmates and their families. The organization offers various services such as court accompaniment, a pen pal program, workshops and training, and support for LGBTQ persons who are experiencing sexual violence, harassment, or lack of health care.
LGBT Books to Prisoners is donation-funded, volunteer-run, non-profit support group based in Madison, WI. It sends books and other educational materials, free of charge, to incarcerated LGBT people across the United States. Since its founding in 2008, the organization has sent materials to almost 9,000 people.
The Prison Activists Resource Center also provides information for organizations that are dedicated solely for LGBT Prisoners, such as Hearts on a Wire which is a Pennsylvania based organization focused on helping Transgender individuals. Other listed resources include GLBTQ Advocates and Defenders and LGBT Books to Prisoners. These sources either provide links for possible legal assistance, or provide materials in an attempt to make the prison experience more bearable.