Introduction
In order to satisfy people’s constitutional freedoms within the criminal justice system, they must be treated as equal irrespective of gender identity/sexual inclination. However, just as there lacks legal protection Trans individuals in the workplace, the criminal justice system has a history of failing to protect transgender people (Twing & Williams, 2010). The criminal justice is very complex web comprising of local, state and federal prisons, local and state law enforcement agencies, federal and state courts, and local city and county jails, as well as juvenile courts and facilities and immigration courts and detention facilities. Occasionally, Transgender people may face prejudice, contempt, and, all too often, violence and brutal treatment at all contact points with the system.
Mapping discrimination and Misconceptions against Trans folks
Research shows that transgender folks, most especially Trans women of color, are often detained on the suspected of being sex workers even under obsolete loitering rules that punish people for “walking while trans.” For instance, Natasha Martin an African-American woman, was kicked out of her mother’s Virginia house as a teenager for opting to dress in girl’s attire while she was a guy (Bellafante, 2016). As she was walking by the streets, officers in a white police van stopped and asked her who she as and if Natasha Martin was her real name. The officers also asked her if she was conscious of the fat that the area, she was walking by was known for prostitution. Immediately, she was detained following a 40-year-old legislation in the state’s penal code that gives law enforcement extensive leeway in arresting anyone they suspect of lurking for the purpose of prostitution (Bellafante, 2016).
Natasha’s case shows the discriminatory issues faced by numerous trans folks in society. Walking while trans is the term used by trans women to describe when police officers presume that anyone who appears like a transgender woman is doing sex work. However, not all trans folks take part in sex work and these acts of prejudice causes anxiety and misery among trans women who aren’t sex workers. Therefore, Even the most adamant proponent of personal responsibility should be troubled by the manner with which the criminal justice system exacerbates the misery of transgender persons already afflicted by abandonment from their families, destitution, unemployment, and instability.
Significant challenges of transgender people in the criminal justice system.
Research shows that people who identify as lesbian, gay, bisexual, transgender, or queer are overrepresented at every stage of the criminal justice system (Hamilton, 2019). They are detained, imprisoned, and placed under community supervision at much higher rates than heterosexual and cisgender individuals. This is especially true for trans persons who are subjected to exceptionally cruel conditions and mistreatment while detained.
Police Profiling
One of the main challenges facing transgender individuals is police profiling and negative interactions with law enforcement. When law enforcers, such as state and local police, implement local ordinances, they usually target low-income people and minorities, particularly transgender persons, unfairly. (Hamilton, 2019). Interactions with authorities are not just unfavorable for transgender persons in general, but they are very regularly risky for transgender women of color. According to an Amnesty International research, transgender people, as well as LGBT people in general, face greater police since they are believed to be transgressing gender standards. For instance, authorities typically think that Trans individuals, specifically transgender women of color, are sex workers. Authorities make these assumptions depending on their assumed transgender status and race, as well as the fact that they are standing, strolling, or driving in a specific area. In reality such individuals may not be engaging in sex work but police often assume that any transgender woman or man must be indulging in such acts.
Unsafe placement
Transgender individuals are generally institutionalized primarily on their exterior appearance or the sex listed on their birth certificates. To put it another way, transgender women are virtually always accommodated in male institutions, whereas transgender males are commonly housed in female facilities. According to an analysis by the California Department of corrections institutions, more than 75% of transgender individuals in male prisons identified as women and lived their lives as women before they were sent to jail (Hamilton, 2019). In correctional facilities, when transgender inmates are kept in units based on their exterior anatomy rather than their gender identity, it puts their physical safety at danger. Putting transgender women in a men’s prison not only overlooks how these women see themselves and conduct their lives, but it also significantly raises the danger of abuse and harassment from other prisoners and correctional officers. Whenever, they are are placed in institutions that are incompatible with their gender identification, their gender identity is frequently overlooked during interactions with correctional staff.
In addition, Unsafe settings also make it increasingly challenging and sometimes impossible for transgender persons to get the amenities they need, such as “gender-specific” clothes, personal care goods, and medical treatment like hormone therapy. What’s more, several correctional facilities often keep detained transgender people in solitary or seclusion following the logic of “safety,”. (Office of the Juvenile Defender, 2011). Long-term segregation or isolation of incarcerated people, on the other hand, has substantial mental health repercussions and restricts their accessibility to support and activities accessible to a wider prison population. Seclusion and isolation propel stigmatization of transgender people, which then increases antagonism.
Harassment and Assault by Facility Staff
Inmates who identify as transgender report a high number of needless inspections, particularly strip searches, that are humiliating and can put them at danger of abuse and harassment from other inmates and penitentiary personnel. Furthermore, because transgender people are typically housed in institutions that do not represent their gender identification, they may be subjected to cross-gender inspections and surveillance, rendering them highly susceptible to sexual abuse. In a 2011-2012 poll by the Bureau of Justice Statistics, more than 16% of transgender people in prisons and jails said they had been sexually assaulted by facility employees in the preceding 12 months, compared to 2.3 percent of all jailed individuals. This is consistent with the results of a poll of transgender women in California men’s prisons, which found that 14% had been sexually abused by a jail employee (Routh et al, 2017)
Lack of Access to Health Care
In correctional facilities, health care varies widely, but transgender people in these institutions have a hard time finding skilled, adequate transition-related medical services. Hormone administration necessitates continual medical supervision, as well as proper support services to aid in the gender change (Maruri, 2010). According to a 2015 survey on Transgender experiences, more than 36% individuals who were taking hormones prior to being detained were not allowed to use them while in jail, prison, or juvenile imprisonment (James et al, 2016).
Therefore, the continuity of hormone therapy is critical for transgender prisoners who have been receiving hormone replacement or sex transition at the time of arrest. While detained, however, access to hormonal therapy or surgery may be temporarily or permanently restricted. On the other hand, some officials may postpone or refuse hormonal treatment or surgeries even when it is considered clinically essential (Maruri, 2010).
Inadequate Re-entry programs
Private agencies are regularly contracted by the federal, state, and local governments to offer re-entry programs to newly released prisoners, such as skills training, re-entry psychotherapy, and housing re-entry facilities. Some persons who are about to be released are put in residential re-entry programs, such as halfway homes, where they will live for a while before being sent back into the community. However, residents and employees in community homes like this have reported discrimination and abuse towards transgender people. Furthermore, transgender individuals have been placed in residential re-entry facilities that do not correspond to their sexual identity, and their clothes has been taken away from them for breaching home rules. In this case, denying transgender persons the right to live their life honestly makes it incredibly hard for them to concentrate on the challenges of having a criminal record, such as obtaining work, finishing their school, and seeking addiction treatment.
Defining and acknowledging transgender inmates
The legal system’s treatment of transgender people in prison has set the tone for their treatment. Because of a paucity of understanding of the challenges they face, their position and needs have garnered little recognition or attention in the past. However, over the past years the supreme court has had to reevaluate the definitions of sex, gender, and gender identity in order to decide what legal rights, if any, transgender persons have and how they ought to be treated.
- Glenn v. Brumby
In Glenn V Brumby, the claimant, a transgender woman was fired from her job in the Georgia General Assembly after which she filed a lawsuit claiming unconstitutional sexual discrimination in contravention of the Equal Protection Clause. The court, citing the Title VII precedent and the Price Waterhouse, ruled that the respondent discriminated against the claimant solely on her sex by firing her because she undergoing a procedure to transition from male to female. Then jury declared that a person is deemed transgender “exactly because his or her behavior is perceived to transgress gender standards.” As a result, discrimination towards transgender people and based simply on “gender-based behavioral norms” are “irreconcilable.” Transgender people are entitled to the same rights as everyone else when it comes to harassment based on sex stereotypes. “The discrimination is of the same sort; it may vary in severity but not in kind.” The judgment went on to say that discriminatory practices based on sex stereotypes is entitled to more examination under the Equal Protection Clause, and that firing a transgender person for gender nonconformity is illegal and unlawful.
The respondent later claimed in this instance that it dismissed the claimant because she used the female bathroom. However, the evidence revealed that the respondent’s office only had single-use unisex lavatories, thus there was no proof that the respondent was prompted by lawsuit worries over restroom use. The defendant failed to give further reasons for its actions and the claimant was entitled to summary judgement.
- Smith v. City of Salem., 2004
The plaintiff claimed sex discrimination from his employer. This was after the plaintiff started expressing a more feminine appearance and informing his employer that he would ultimately undertake a full bodily metamorphosis from male to female. In this case, the court ruled that discrimination against transgender people based on gender stereotypes is illegal under Title VII. The jury also held that discriminating against a person for gender nonconforming conduct, regardless of the reason for the conduct, is a violation of Title VII. The court noted that Price Waterhouse, wherein the U.S. Supreme court ruled that Title VII shielded a woman who failed to conform to social anticipations about how females ought to act and look, “eviscerated” the “narrow view” of the phrase “sex” in previous legal precedent denying Title VII safeguards to transgender employees.
- Lewis v. High Point Regional Health Sys.,2015
The claimant, a registered medical assistant, claimed she was turned down for various jobs due to her gender identity. The plaintiff was physically male at the time of her interviews and was getting hormone replacement therapy in readiness for gender reassignment surgery in the future. The employer’s petition to dismiss the complaint was rejected by the district court because the company had only contended that sexual orientation was not covered by Title VII and that gender identity and sexual orientation are two different notions. As a result, the judge granted plaintiff’s Title VII transgender discrimination lawsuit to progress.
Conclusions
In conclusion, the criminal justice system seems to have failed transgender people in many ways. Indeed, Trans folks in the Criminal justice system suffer a variety of stresses, including a loss of liberty, the threat of violence, sexual abuse, high mental anguish, and a probable lack of resources. Transgender people experience barriers that are strongly attributable to their gender identification in addition to these pressures. In accordance with their genitalia, they are frequently placed with people of the opposite gender. During their time in prison, transgender people almost universally describe substantial discrimination and a lack of sufficient medical care. They also have difficulty getting medical care that is directly relevant to the transition process in numerous detention facilities throughout multiple states. Many of them are subjected to verbal and physical abuse from fellow inmates and staff. If they’ve started the gender reassignment, they’ll appear to have more feminized or masculinized attributes, which puts them at danger for sexual assault or discrimination. In a bid to curb these threats, correctional facilities often place transgender people in solitary confinement which restricts their movement and isolates them from the rest of the inmate population. However, while this may reduce the danger of being assaulted by other inmates, it may result in more harm and mental health issues than it prevents. It is sad that despite the Prison Rape Elimination Act’s (PREA) mandate to protect the rights of trans folks while in prison, they still continue to face elevated levels of violence and abuse in their contact with law enforcement. Therefore, much work is needed in the criminal justice system to ensure stability, justice, protection, and dignity of transgender people.
References
Ginia Bellafante (2016). Poor, Transgender and Dressed for Arrest
Hamilton, D. S. (2019). Transgender and Gender Nonconforming Individuals’ Perceptions of the Criminal Justice System (Doctoral dissertation, Walden University).
James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. (2016). The Report of the 2015 U.S. Transgender Survey. Washington, DC: National Center for Transgender Equality.
Maruri, S. (2010). Hormone therapy for inmates: A metonym for transgender rights. Cornell JL & Pub. Pol’y, 20, 807.
Office of the Juvenile Defender, April 2011. Representing Lesbian, Gay, Bisexual, Transgender, Queer, or Questioning (LGBTQ) Youth in Juvenile Court” http://www.ncids.org/JuvenileDefender/Guides/LGBTQ_Guide.pdf.
Routh, D., Abess, G., Makin, D., Stohr, M. K., Hemmens, C., & Yoo, J. (2017). Transgender inmates in prisons: A review of applicable statutes and policies. International Journal of Offender Therapy and Comparative Criminology, 61(6), 645-666.
Twing, S., & Williams, T. C. (2010). Title VII’s transgender trajectory: An analysis of whether transgender people are a protected class under the term “sex” and practical implication of inclusion. Texas Journal on Civil Liberties & Civil Rights, 15, 173-203.
Valerie Jenness, “Transgender Inmates in California’s Prisons: An Empirical Study of a Vulnerable Population,” April 8, 2009, http://ucicorrections.seweb.uci.edu/files/2013/06/Transgender-Inmates-in-CAs-Prisons-An-Empirical-Study-of-a-Vulnerable-Population.pdf.
write