The United States incarcerates more people per capita than any other country in the world—up to 20 percent of the world's prisoners.
One in three transgender women can expect to be incarcerated in their lifetime. Fifty-seven percent of Black trans people have been incarcerated at some point in their life. Whether they are pre-or-post-operative, in the Cook County jail, in a downstate penitentiary or in a Federal Prison, the chances are that a trans-woman will be placed in a male facility. Once in prison, their choices are isolation or to be subject to physical and sexual violence both from other inmates or correctional officers. Standards of health care for them are minimal.
In the Cook County Jail, most trans-women are placed in Division 6- a medium security men's facility with limited interaction with the general population or in Division 9—a super-maximum security facility in which the inmate is placed in 23-hour-per-day-isolation.
In the past, in states like Wisconsin, trans individuals have been denied access to hormones or gender affirming surgery because the state government believes that such treatments are cost prohibitive or will make male inmates "uncomfortable."
On Dec. 7, the Center on Halsted featured Owen Daniel-McCarter, an attorney with the Transformative Justice Law Project of Illinois and the TransLife project of the Chicago House. McCarter addressed constitutional law as it relates to the transgender community. The presentation was part of a Lavender University nine-month speaker series featuring top academics and activists in the LGBTQ community.
In addressing why so many trans people ( particularly trans women of color ) do end up in jail, Daniel-McCarter laid a good part of the blame at the foot of continuing and inordinate police profiling of transgender people along with systemic Transphobia and a lack of understanding about the transgender community on the part of law enforcement officials, states attorneys and even judges. "The kind of policing and discrimination that transgender women receive is related to police profiling of them," Daniel-McCarter said. "Walking while trans, driving while trans, hailing a cab while trans can all be construed as prostitution."
Many trans people, alienated from their families and denied basic housing and medical needs, might engage in survival crime: low-level drug trades or drug possession, retail theft, prostitution, loitering and trespassing. "They start as small A or B misdemeanor crimes but, after your third charge, they can become felonies," Daniel-McCarter noted. "Suddenly, you are doing time downstate."
Public defenders are overburdened with cases, said Daniel-McCarter. They don't have the time to think about the nuances of a trans-person's particular situation. Thus many trans-prisoners simply plead guilty in order to avoid a long trial process during which they will spend time in isolation. "We have a slew of documented case law that says long term solitary confinement is a violation of the constitution," Daniel-McCarter said. "We know that there are permanently damaging affects to a person's psyche."
Landmark cases such as Farmer v. Brennan and Fields v. Smith have successfully challenged the treatment of transgender prisoners as violations of the Eighth Amendment forbidding "cruel and unusual punishment" as well as the Equal Protection clauses of the 14th Amendment.
In the Seventh Circuit Court there are three cases that have all dealt with Eighth Amendment requirements regarding treatment for transgender people. "We have built a lot of case law around the validity of gender identity disorder," Daniel-McCarter said. However, he believes that this can be just as damaging. "If you are incarcerated and you have never been diagnosed with GID, then you don't have the diagnosis you need to begin treatment," he noted.
Fields addressed Wisconsin's "Inmate Sex-Change Prevention Act" which came about when the public became aware that transgender women in prison were receiving HRT ( hormone replacement therapy ). "It is clear that the only reason this act was passed was disdain for transgender people." Daniel-McCarter said.
Prisoners who were receiving hormones were suddenly pulled from treatment. "That is a very different type of action on the part of the government," Daniel-McCarter said. "It's one thing to say 'I'm never going to give you this thing you were asking for' and it's another thing to say 'I'm taking it away' basically overnight."
In March 2012, after a six-year battle, the act was struck down. "Even though this is a win for transgender people, the language [the court] used is disheartening," Daniel-McCarter said. "It's been hard to enforce the decision because it is so vague."
A 2011 policy enacted in the Cook County Jail established a gender identity committee to review transgender detainees in that facility and determine their status- whether they should have access to hormones, or in the case of trans-women, items such a bra. "I kind of think of them as a magical group of fairies like in Cinderella." Daniel-McCarter said.
Daniel-McCarter and the TJLP—a legal organization that provides holistic, life and gender-affirming legal services to criminalized transgender people—believe that the solution can only come when viewed through a movement to create lasting alternatives to punishment-based institutions through community empowerment, community- led education, radical activism, transformative justice and liberation as necessary alternatives to the prison system.
"We need to have solutions." Daniel-McCarter said. "Not to do so is a violation of human rights."
For more information, visit www.tjlp.org .
Videos at the link:
Owen Daniel-McCarter on transgender prisoners , Lavender University 12-7-2013 Part 1 of 2: Owen Daniel-McCarter on transgender prisoners , Lavender University 12-7-2013 Part 1 of 2 .
Owen Daniel-McCarter on transgender prisoners , Lavender University 12-7-2013 Part 2 of 2: www.youtube.com/watch .
