Reports such as the 2011 National Center for Transgender Equality- and National Gay and Lesbian Task Force-authored "Injustice at Every Turn," along with the February 2015 Movement Advancement Project study entitled "Understanding Issues Facing Transgender Americans" have both detailed extensive discrimination against members of the transgender community by the criminal-justice system.
Workshops for attorneys and judges designed to educate them on the experiences and needs of transgender and gender non-conforming youth and adults from arrest to trial have become indispensable in ensuring that transgender community members ensnared in the legal system receive equitable treatment and dedicated representation.
The Health & Medicine Policy Research Group, the ACLU of Illinois, the Transformative Justice Law Project, the People's Law Office, and the Cook County Office of the Public Defenders held two such workshops in Chicago on March 6 and March 23.
The latter took place at the Cook County Juvenile Center with a panel comprised of Transformative Justice Law Project co-founder Owen Daniel-McCarter, Senior Policy Analyst for the Health & Medicine Policy Research Group David Fischer, Program Coordinator with The John Marshall Law School Restorative Justice Project Sharlyn Grace, Cook County Public Defender Amber Miller, author and partner in the People's Law Office Joey Mogul and Senior Staff Council for the American Civil Liberties union of Illinois Adam Schwartz.
It was attended by a packed room of attorneys and judges who were provided with information including transgender 101 training, terminology, preferred pronoun usage and language as well as reviews of the 2012 Chicago Police Department ( CPD ) General Order governing "Interactions with Transgender, Intersex and Gender Nonconforming Individuals," the Supreme Court of the State of Illinois Rules of Professional Conduct and the Human Rights Act. A presentation by Schwartz outlined the rights of transgender people in prisons and jails.
The purpose of the workshop was starkly demonstrated in statistics which showed 70 percent of LGBT youth reporting police mistreatment as a serious problem, 29 to 38 percent of transgender individuals of color reporting police harassment, transgender prisoners sexually abused at nearly 10 percent the rate of prisoners in general and 59 percent of transgender inmates in California prisons reporting sexual violence over 4.4 percent of others.
"Don't ask a client what their genitals look like or if they've had 'the' surgery yet," Fischer said. "Most of us have never had our genitals asked after in casual conversation. It's not respectful, comfortable or polite. Make sure any questions that you're asking them is relevant to their defense, safety or support and not a matter of your own curiosity. Your client isn't there to teach you about their experience."
"I've had clients in adult court who have requested that I use an alternate pronoun or an alternate name than what's on their court documents," Miller noted. "It's a fight. You'll get judges openly correcting you on the record emphasizing the 'he' pronoun instead of 'she' and everything else gets lost. Sherriff's deputies I found to be the absolute worst. They would make snide comments as they were bringing the client out [to the courtroom], make snide comments as they were bringing them back and in the lock-up when you aren't around."
In terms of police misconduct, Mogul noted that current national conversations centered around racism and police violence, while important, have led to a perception that it is only straight Black men who are disproportionately targeted. "We're losing sight of the fact that women of color are as well and that includes transgender women of color in particular," Mogul said. "Nationally and locally we continue to see transgender women of color being profiled as sex workers. We continue to see transgender and gender non-conforming people physically and sexually assaulted by law enforcement officers. We've seen trans folks coerced into engaging in sex acts in order to escape further abuse or arrest and we continue to get reports from folks being subjected to illegal, invasive and humiliating strip-searches at police stations where officers are groping or exposing their genitalia either to allegedly determine what their gender is or just to humiliate them."
Mogul noted that the 2012 CPD general order did not receive a public hearing and was created through back-door negotiations. "It's somewhat of a mixed bag," Mogul said. "There's some good things in it and there are some things that are problematic. There are some guiding principles which are platitudes—what [the CPD] should do but doesn't mean they will do. When it actually comes down to determining someone's identity for the purposes of arrest, search and detainment it really backtracks. Basically the orders says that [the CPD] are going to look to a persons' government issued ID to determine a person's gender. A substantial number of transgender and gender non-conforming people do not have IDs that accurately reflect their names or their genders."
There's a bureaucracy roulette that trans people have to go through when figuring out their names or gender markers because systems and administrations do not have the same rules for doing this," Daniel-McCarter added. "To file a [name change] petition there is a pretty significant filing fee [in Cook County] of about $500. You can be granted a fee waiver under the Indigent Person's Statute but that does require going in front of a judge and showing significantly more documentation. We've had judges ask some pretty inappropriate questions of clients like 'who paid for your breast implants if you can't pay for this?' We've had some conversations [with them] and had some traction there."
Neither Mogul nor Daniel-McCarter was aware of any CPD sensitivity training in dealing with transgender individuals currently taking place.
"You'll find most police officers don't know the General Orders at all," Miller said. "This is probably yet another General Order that they probably have not read, don't follow and don't even know exists. But they're going to have to admit that they have it because it's a direct order signed by a supervisor."
"I think the CPD doesn't understand that someone should not be classified based on their gender anatomy," Mogul said. "I think the CPD are way behind on this."
Once in detention, the experiences of transgender individuals becomes infinitely more dehumanizing.
"Nationally esteemed experts went in to the Department of juvenile Justice and found serious problems with the treatment of LGBT youths," Schwartz noted referring to a lawsuit the ACLU has filed RJ V. Jones seeking to improve conditions available to young people at confined at Illinois state-run juvenile justice facilities. "There were inadequate policies regarding classification and hormone treatment. There was harassment and there was restraint on gender expression."
