Correcting Past Intakes: The D.C. Jail’s policies undergo a transition.
Pamela, 42, has seen the male detention facility of the D.C. Jail too many times to count. She’s made “seven to eight” trips over the past 10 years, she says. Pamela, a transgender woman, says she’s not interested in being housed with females—she just wants to hold on to her weave, her bra, and her hormones. “They try to defeminize you as much as possible,” she says of jail staff. “They degrade you. Even if they put you in a cell block with a man, they shouldn’t have any say about how you look when you’re in there. All we want is to be treated with dignity.”
As of Feb. 20, a transgender inmate in the D.C. Jail may have a shot at it. The Department of Corrections’ new program for “Gender Classification and Housing” will allow a transgender woman to be classified according to her gender identity, regardless of her genitalia. Meaning: a transgender woman may now be housed with other women. She may wear the female uniform of a shirt and pants. Her hair may not be cut. She may shower away from the eyes of male inmates. She may even be administered hormone therapy behind bars.
The new policy will be unrivaled in its protection of transgender inmates—if any of this stuff actually happens.
• Who decides? Upon intake, a transgender inmate won’t simply be shuffled into the gendered housing of her choosing. Any new inmate classified as transgender will first undergo a complete “verification of the sex of the genitalia,” then be placed in single-cell “protective custody” until the jail figures out what to do with her. The final housing decision will be left to the “transgender committee,” a body composed of “a medical practitioner, a mental health clinician, a correctional supervisor, a Chief Case Manager, and a DOC approved volunteer who is a member of the transgender community or an acknowledged expert in transgender affairs.” Whatever the majority vote says, goes.
• Unless it doesn’t. Slipped into the policy is the following wiggle room: “If the housing assignment differs from the Transgender Committee’s written recommendation, the Warden shall justify the assignment in writing to the Director”—currently, Devon Brown.
That shouldn’t be too hard. The DOC has for many years herded transgender inmates into cellblocks based on a simple below-the-belt search. Those sex-specific housing policies became illegal in 2006, when “gender identity and expression” was incorporated into the D.C. Human Rights Act.
In 2008, Inspector General Charles Willoughby reported that the jail wasn’t complying with the act’s protections. But instead of changing policy to comply with the act, the jail got an exception. The Office of Human Rights stepped in to amend its trans policy:
Nothing…shall require an agency of the District of Columbia government to classify, house, or provide access to gender-specific facilities to transgender individuals according to their gender identity or expression if the transgender individual is incarcerated, institutionalized, or otherwise within the District’s custody.
GLBT advocacy orgs and their backers on the D.C. Council blocked the DOC exception.
Enter Peter Nickles, then the acting attorney general. In response to an Office of Human Rights complaint filed by transgender activist Jeri Hughes, Nickles wrote that the jail conformed to “the universal practice of corrections facilities across the country”—despite the fact that D.C.’s Human Rights Act places the D.C. Jail at a higher standard. Nickles then argued that the refusal to conform to the act was in the prisoners’ best interest: “The basis of this housing selection is that a person housed with prisoners with genitalia of the opposite sex, regardless of gender expression, is a target for assault, presents the risk of consensual or coerced sexual contact, and has a high probability of causing anxiety and increased incidents of fighting and abuse with other inmates.”
These words will serve the warden well when justifying decisions to the director.
• Genitalia still counts. Let’s go back to that “verification of the sex of the genitalia” thing. That process can range from the dropping of one’s pants to a full “gender determination” in the medical unit. Why the shakedown? Because in addition to “gender identity,” an inmate’s housing assignment will also be determined by her “safety/security needs,” “housing availability,” and her “genitalia.”
Darby Hickey of Just Detention International says that the DOC’s “obsession with genitalia” can get in the way of those “safety/security needs.” The genitalia clause could be a good thing—it ensures that a transgender man can remain in a female unit, where he’d be less susceptible to rape from other male prisoners more interested in his female genitalia than his male gender expression. But that scenario is unlikely: While as many as 20 trans women are housed in the D.C. Jail at any given time, the population of trans men goes unreported.
More likely is that the genitalia clause will be used to bar transgender women from female units—in other words, exactly what’s happening now. If a trans woman’s male genitalia is deemed a danger to her fellow female inmates, she could be housed with men or pushed into solitary confinement. Hickey says the fear that a trans woman is more likely to become violent is supported by bigotry, not experience. “We do advocate for segregating potential sexual predators who have a history of assault,” says Hickey. “But basing that risk on someone’s gender identity is just homophobia in the name of security.”
• All or nothing. If a transgender inmate is housed according to her genitalia and not her gender identity, she’s out of luck with other gender-specific amenities. Hicks notes that it’s still DOC policy to “restrict cross-gender expression in the name of preventing sexual assault”—meaning clothing and grooming must adhere to an inmate’s genitalia, not gender identity. Nickles has argued that trans inmates are “not required to assume an appearance at odds with their gender identities” because “uniforms issued in both male and female facilities are gender-neutral, consisting of jumpsuits in male facilities and pants and shirts in female facilities.” To clarify: The D.C. Jail issues two completely different uniforms based on gender. In the jail, that’s called “gender-neutral.”
• Who gets a bra? Undergarments will be doled out on a case-by-case basis. The policy states that “inmates under hormone therapy with secondary sexual characteristics such as breasts shall be provided appropriate undergarments such as a bra when clinically indicated by appropriate medical staff.” Yep—a doctor will determine whether an inmate’s breasts are big enough to require support. If a trans woman is housed with men, she better hope her secondary sexual characteristics make the cut; otherwise, she’ll be forced to expose her breasts each time she removes her one-piece male jumpsuit.
• No pronouns. DOC staff is now instructed never to refer to a transgender inmate by any “gender specific identifiers.” Instead, “the gender neutral term, Inmate, is to be used with the last name.” It’s easy enough for a guard to avoid peppering his speech with “Ma’ams.” Making conversation pronoun-free is more difficult. The rule suggests that it is somehow simpler for a jail employee to say “Inmate [Last Name]” every time a pronoun is required than to refer to a transgender person by the gender-appropriate term. “Inmate [Last Name]” may be better than the alternative—Hughes says that in a meeting with DOC brass, Director Brown referred to her as “Miss Hughes” but continually referred to the jail’s transgender women as “men.”
Photo by Darrow Montgomery.