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THE GENDER LINES ARE MARKED WITH
RAZOR WIRE: ADDRESSING STATE PRISON
POLICIES AND PRACTICES FOR THE
MANAGEMENT OF TRANSGENDER
PRISONERS
Sydney Tarzwell*
The dominant binary understanding of gender is a powerful
coercive force: individuals are pressured to conform to cultural ideals
of "male" or "female" from the moment they are assigned a "sex" on
their birth certificate. Refusal or inability to conform to gender
expectations that align with one's assigned sex can have drastic
repercussions. Transgender individuals' face pervasive social and
B., Princeton University (2000); J., Columbia Law School
(expected 2007); Submissions and Notes Editor, Columbia Human
Rights Law Review (2006 - 2007). I would like to thank Dean Spade for
his role in inspiring and supporting this project. I would also like
to thank Alex Lee, Melissa Elwell, Caitlin Daniel-McCarter, Davim
Horowitz, Franklin Romeo, Naureen Shah, and Nicole Altman for their
contributions and insights. Finally, I would like to thank those
correctional staff who were willing to speak candidly, and most
especially the prisoners who have refused to be silenced.
- I use the terms "transgender," "gender transgressive," and "gender non-
conforming" to refer to persons "whose identity or lived experience do not conform
to the identity or experiences typically associated with the sex assigned to that
person at birth." Franklin H. Romeo, Beyond a Medical Model: Advocating for a
New Conception of Gender Identity in the Law, 36 Colum. Hum. Rts. L. Rev. 713,
713 n (2005). These broad and fluid terms include, but are not limited to, people
who identify or live some or all of the time as a gender other than that assigned
at birth, people with intersex conditions, transsexuals, genderqueers,
transvestites, drag kings and queens, women displaying "masculine"
characteristics, men displaying "feminine" characteristics, and "anyone whose
performance of gender calls into question the construct of gender itself." Kate
Bornstein, Gender Outlaw 121 (Vintage 1995). These categories encompass those
GENDER LINES
describes the gendered nature of punishment in United States
prisons and demonstrates how, in the absence of policies addressing
the specific needs of transgender prisoners, prison is likely to be a
"virtual torture chamber"
4
for gender-transgressive
individuals. Part
I addresses how current
case law views two primary issues for
transgender prisoners-placement and access to gender-affirming
medical care-through the lens of the Eighth Amendment "deliberate
indifference" standard, and concludes that Eighth Amendment
jurisprudence is insufficient to address the crisis of transgender
prisoners. Part II describes and critiques the policies and practices of
fourty-four state prison systems regarding placement and medical
care for transgender prisoners. Part III consists of policy suggestions:
provisions that, if adopted in a department of correction's
administrative regulations, would ensure safer and more sensitive
placement of transgender prisoners, broaden the range of gender-
affirming medical care available, and broaden the population of
transgender prisoners eligible for gender-affirming medical care.
I. CRISIS: TRANSGENDER PRISONERS
In almost every state, the official record of an individual's
birth sorts that individual into one of two categories: male or female.
Most people take for granted that this initial categorization is an
appropriate first step in life. Men and women who successfully and
contentedly play the gender roles assigned to them at birth may have
little occasion to question the gendered nature of bathrooms,
pronouns, and sexualities. But for those who do not grow comfortably
into their assigned genders (i., those who identify with the "other"
gender, those who exist as "a little of both," or those who reject
traditional gender altogether), the gender binary can be suffocating
or dangeroius.
5
While many Americans have begun to accept "men" in
traditionally female occupations,
6
many still react with fear, anger,
- Alexander Lee, Gendered Crime & Punishment: Strategies to Protect
Transgender, Gender Variant & Intersex People In America's Prisons, 4 GIC TIP
J. 1, 7 (2004) (quoting Rosenblum, supra note 3, at 517).
- I use the term "gender binary" to describe the cultural scheme that
acknowledges only two genders-male and female-and that labels each
individual as one or the other at birth. The gender binary is generally based on
the belief that chromosomes, gonads, primary and secondary sex characteristics,
identity, and social roles are or should be more or less consistently male or female
within any individual.
- Stephen J. Rose & Heidi I. Hartmann, Institute for Women's Policy
2006]
170 COLUMBIA HUMAN RIGHTS LAW REVIEW [38:
and violence to "men" in women's restrooms.
7
Because of pervasive transphobia and bias, transgender
individuals are disproportionately ostracized from mainstream
society, channeled into criminalized economies, arrested, and
sentenced to prison.
8
While prison can be a brutal experience for any
prisoner, the hyper-gendered prison experience is especially
traumatic for transgender individuals. "Trans" as a prefix signals
both crossing and changing.
9
Transgender individuals-individuals
who are both crossing and changing gender categories-are
incompatible with a system that relies on rigidly demarcated gender
boundaries to function. In the absence of policies specifically
addressing the needs of transgender prisoners, such prisoners are
likely to face the denial of gender-affirming medical care'
1
(resulting
in physical and psychological pain, and a feeling of loss of identity),
as well as harassment and assault. The Eighth Amendment
jurisprudence that guarantees some protection to transgender
Research, Still a Man's Labor Market: The Long-Term Earnings Gap iv (2004),
available at iwpr/C355.pdf (noting that eight percent of men
work in traditionally female career occupations).
- See, e., Goins v. West Group, 635 N.W 717 (Minn. 2001) (denying
the sexual orientation discrimination claim of a male-to-female transgender
employee who was not permitted to use the employee restroom facilities that
were designated for women).
- Unfortunately, the "nearly universal failure" of prisons to document and
record the incarceration of transgender individuals means that no reliable
statistics exist about the size of the transgender prison population. Lee, supra
note 4, at 4.
. 9. Debra Sherman Tedeschi, The Predicament of the Transsexual Prisoner,
5 Temp. Pol. & Civ. Rts. L. Rev. 27, 29 (1997) (noting that "trans" has the
following definitions: "on the other side of, over, across," "so as to change
thoroughly," and "above and beyond, transcending").
- I use the term "gender-affirming medical care" to refer to medical
treatment that is sought for the purpose of changing one's physical gender
expression in a way considered inconsistent with the sex one was assigned at
birth. Such treatment often includes hormone therapy and surgeries. It should be
noted that the same treatments are often sought by non-transgender individuals;
therefore, identifying gender-affirming medical care necessarily includes
judgments about which gender category an individual belongs to and which
physical expressions are appropriate for that gender. I use the term "sex-
reassignment treatment" to describe gender-affirming medical care because the
term is common in prison policies. Prison officials and prison policies also
commonly use the term "sex-reassignment surgery." In the course of this
research, the term was generally used to describe some sort of genital surgery for
sex-reassignment purposes.
172 COLUMBIA HUMAN RIGHTS LAW REVIEW [38:
presumably a "rehabilitative" system, may inappropriately label
these young people as sex offenders, forcing them to wear sex
offender
jumpsuits
and attend sex
offender therapy
groups.
14
Compliance with gender norms is sometimes seen as part of
rehabilitation: if transgender youth cannot or will not remedy their
gender transgressions, they will necessarily fail to complete the
rehabilitation process required for release.
15
These early barriers to full economic participation are
compounded by discrimination in the workforce. As one transgender
legal activist has written, "[aiccess to participation in the U.
economy has always been conditioned on the ability of each
individual to comply with the norms of gendered behavior and
expression .... A transgender man,
7
for example, can expect to be
turned away from job interviews if his identity documents describe
him as "female" or reveal a "female" name. If he is hired, he may be
harassed or terminated when his transgender status comes to a
supervisor's attention.
8
Seventy-six percent of the US population
currently lives in jurisdictions where this kind of discrimination is
legal-jurisdictions where gender identity discrimination has been
excluded from anti-discrimination laws.
1 9
Those trans-friendly laws
that do exist are under-enforced.
20
Additionally, transgender
individuals may be reluctant to increase their earning potential by
pursuing higher education because of fears about revealing birth
name and sex (and thus, transgender status) on paperwork.
2
'
Gender-motivated violence (and fear of gender-motivated violence)
Defense & Education Fund, Out of the Margins: A Report on Regional Listening
Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender,
and Questioning Youth in Care 80-101 (2006), available at
cwla/programs/culture/outofthemargins.pdf.
Spade, supra note 12, at 11.
Id.
Id. at 5.
That is, an individual who was registered as female at birth but who
lives and identifies as male.
- Spade, supra note 12, at 3 (citing Oiler v. Winn-Dixie Louisiana, Inc.,
2002 WL 31098541 at *1 (E. La. Sept. 16, 2002) (discussing the firing of a
grocery store loader and truck driver for cross-dressing off the job)); see also
Minter & Daley, supra note 2, at 13.
- National Gay and Lesbian Task Force, Populations of Jurisdictions
with Explicitly Transgender-Anti-Discrimination Laws (2003), available at
thetaskforce/downloads/TransIncPops.pdf.
Spade, supra note 12, at 17.
See Minter & Daley, supra note 2, at 13.
GENDER LINES
further removes transgender individuals from full participation in
the economy and in society in general.
22
Transgender individuals are thus disproportionately likely to
live in poverty. Ironically, people living in poverty are often forced to
interact with gender-normative programs and sex-segregated
facilities that are hostile or unresponsive to the needs of transgender
people.
23
While many transgender people are effectively excluded
from the legitimate economy,
24
one alternative-the welfare system-
is operated with a punitive attitude, and access is conditioned on
obeying conservative notions of gender.
25
Homeless and domestic
violence shelters are often sex-segregated and subject individuals to
humiliating violations of privacy.
6
These problems persist even in
jurisdictions with anti-discrimination laws protecting against gender
or gender-identity discrimination. Such laws often include statutory
or judge-made carve-outs for sex-segregated facilities.
27
Advocacy
- See, e., Remembering Our Dead, gender/#
(last visited Oct. 12, 2006) (an online memorial for victims of transgender-based
violence).
- Jails, homeless shelters, group homes, drug treatment facilities, foster
care facilities, domestic violence shelters, juvenile justice facilities, and housing
for the mentally ill all tend to be sex-segregated. Spade, supra note 12, at 12.
- City and County of San Francisco Human Rights Commission,
Economic Empowerment for the Lesbian Gay Bisexual Transgender
Communities, Findings (2000), sfgov/site/uploadedfiles/
sfhumanrights/docs/econ#P140_20179.
- Spade, supra note 12, at 7. Spade notes that racist and sexist images of
African-American "welfare queens" were instrumental in generating political
support for the Personal Responsibility and Work Opportunity Reconciliation Act,
which, he argues, presumes that poor women are responsible for their poverty
and that coercion into marriage and work outside the home is the appropriate
remedy. Additionally, while gendered home-based work is assigned no value in
the welfare context, tax breaks reward work within the home among other
economic classes. Id. (citing Holloway Sparks, Queens, Teens and Model Mothers:
Race, Gender, and the Discourse of Welfare Reform, in Race and The Politics of
Welfare Reform 171 (Sanford F. Schram, Joe Soss, & Richard C. Fording eds.,
2003), and Susan James & Beth Harris, Gimme Shelter: Battering and Poverty, in
For Crying Out Loud: Women's Poverty in the United States 57-66 (Diane Dujon
& Ann Withorn eds., 1996)).
- See Spade, supra note 12, at 9 (citing Marie Kennedy, Roofless
Women's Action Research Mobilization, A Hole In My Soul: Experiences of
Homeless Women, in For Crying Out Loud: Women's Poverty in the United
States, supra note 25, at 41, 41-56).
- See, e., Goins v. West Group, 635 N.W 717 (Minn. 2001) (holding
that the designation of restroom use on the basis of biological gender rather than
gender identity comports with anti-discrimination laws because it applies
20061
GENDER LINES
affirming medical care is often a prerequisite to participation in a
culture heavily invested in the gender binary.
34
In many states, for
example, transgender individuals may be able to obtain identification
documents consistent with their lived genders, but only with proof of
sex-reassignment surgery.
35
This is not to suggest that transgender
individuals seek gender-affirming medical care solely or primarily to
access legal protection, but that limited recognition of lived gender is
available only to those transgender individuals able to overcome the
many barriers to accessing gender-affirming medical care.
In addition to being denied access to the legitimate economy
because of gender expression, many transgender individuals are
further marginalized because they are disabled, immigrants, and/or
people of color.
36
The effect of these multiple and complex layers of
oppression is that transgender individuals are disproportionately
forced into criminalized economies in order to survive.
37
The
persistent lack of legal job opportunities funnels transgender
individuals into both sex work and the illegal drug trade.
38
Sex work
and the illegal drug trade are likely to expose individuals to HIV
infection, adding another layer of potential discrimination and
harassment.
39
The criminalization of prostitution and the ongoing War on
Interpretation and Critique, 29 Social Problems 266, 275 (1983) (noting that one
gender clinic refused to take Puerto Rican clients because the doctors did not
believe they appropriately met gender norms).
- Romeo, supra note 1, at 736 (stating that "[how-income gender
nonconforming people are placed in a particularly precarious situation: while
their lives are more likely to be entangled within systems that strictly regulate
their gender presentation, they are significantly less likely to be able to access
trans-friendly healthcare and will therefore have limited recourse to legal
protections based on their gender nonconforming status").
- See Julie A. Greenberg & Marybeth Herald, You Can't Take It With
You: Constitutional Consequences of Interstate Gender-Identity Rulings, 80 Wash.
L. Rev. 819, 836-43 (2005).
Lee, supra note 4, at 4.
Id. at 5.
Lee notes that there is a strong correlation between sex work and the
drug trade: sex workers report using drugs in order to help cope with the effects
of sex work; others have reported that they engage in sex work to support their
drug addiction. Id. (citing Kristin Clements, M.P et. al, HJV Prevention and
Health Service Needs of the Transgender Community in San Francisco, Int'l J.
Transgenderism (1999), available at symposion/ijtlhiv-risk/
clements.
- Rosenblum, supra note 3, at 540-42.
20061
176 COLUMBIA HUMAN RIGHTS LAW REVIEW [38:
Drugs increase the likelihood that transgender individuals engaged
in these professions will have contact with the criminal justice
system.
°
Stereotypes of transgender women as sex workers and
"quality of life" sweeps by law enforcement that target the
marginally-housed and homeless also increase transgender
individuals' exposure to the criminal justice system.
4
' Anti-
transgender bias among legal professionals often results in
inadequate representation by counsel.
2
Many programs and facilities
that provide alternatives to incarceration (including drug treatment
facilities) are sex-segregated and refuse to admit transgender
individuals. Those that do admit transgender individuals sometimes
treat them so poorly that transgender individuals are effectively
denied services' These factors, combined with the social factors that
push transgender individuals into criminalized economies, ensure
that transgender individuals are disproportionately likely to be
arrested and sentenced to prison.
B. The Status Quo: Prison is a "Virtual Torture Chamber" for
Transgender Individuals
As a homosexual/transsexual prisoner standing at five foot,
four inches tall and weighing under 130 pounds, I find
myself at the mercy of other prisoners. Within three
months of my arrival to prison, I found myself sexually
enslaved by a single domineering prisoner and forced to
perform sexual favors in exchange for my 'protection' due to
the deprivation of reasonable safety.
After requesting Protective Custody asserting claims of
prison rape and sexual slavery, I was blatantly denied
Protective Custody on repeated occasions and forced from
one prison to the other, where I was continuously raped,
extorted, and sexually assaulted at the hands of other
prisoners.
- Seantain
Cook, transgender
prisoner,
Arizona"
Upon incarceration, transgender individuals find themselves
Lee, supra note 4, at 5-6.
Id. at 10.
Spade, supra note 12, at 4, 14.
Dean Spade, National Prison Rape Elimination Commission testimony
(2005), available at nclrights/prison-spade08l9O5.pdf.
- Stop Prisoner Rape & ACLU National Prison Project, Still in Danger:
The Ongoing Threat of Sexual Violence against Transgender Prisoners 4,
available at spr/pdf/stillindanger.pdf (last visited Nov. 14, 2006).
178
COLUMBIA HUMAN RIGHTS LAW REVIEW [38:
punishments for breaking the rules.
49
Female prisoners often
experience verbal harassment, unnecessary pat-downs, and rape at
the hands of staff.
5 °
Corrections Officers leverage their control over
the goods and services available to prisoners to coerce female
prisoners into sexual bartering. Moreover, female prisoners report
retaliation in nearly all cases in which grievances are reported.
51
The
sexual misconduct of prison staff is disproportionately directed at
lesbian and transgender prisoners,
5 2
and the negative effects are
exacerbated because gender-transgressive individuals are often
excluded from support networks formed by other prisoners.
53
Women's prisons are often sites of medical neglect and
malpractice: practitioners believe that prisoners are lying about or
imagining their conditions to gain access to drugs or attention.
5 4
Transgender individuals are more likely to feel the effects of medical
neglect because they are more likely to enter prison with health
problems: the effects of prostitution and drug use, the side effects of
gender-affirming medical care (and withdrawal when these
treatments are denied), or health needs left unaddressed because the
individuals could not bear to face the disdain of medical
professionals.
55
- Men's Prisons
Men's prisons are hyper-masculinized in a way that is
equally inappropriate for transgender individuals. As described by
prominent legal scholar Kenneth Karst, the ideology of masculinity
is:
the belief that power rightfully belongs to.. .those who
Id. at 9 (citing Human Rights Watch, supra note 47).
Id. at 10 (noting that anecdotal evidence shows most of the abuse
suffered by transgender prisoners in women's prisons is at the hands of white
male correctional officers). But see Christine Peek, Breaking Out of the Prison
Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa
Clara L. Rev. 1211, 1242 (2004) (suggesting that half of the sexual attacks in
women's prisons occur at the hands of other prisoners).
Lee, supra note 4, at 9 (citing Human Rights Watch, supra note 47).
Id. at 8.
Id. at 10.
Id. at 10-11.
Id. See also Callen-Lorde Community Health Center, Transgender
Health Services Page, callen-lorde/services/trans.html (last visited
Sept. 8, 2006).
GENDER LINES
display the traits traditionally called masculine. This belief
has two corollaries. The first is that the gender line must be
clearly drawn, and the second is that power is rightfully
distributed among the masculine in proportion to their
masculinity, as determined not merely by their physical
stature or aggressiveness, but more generally by their
ability to dominate and to avoid being dominated.
5 6
In the prison setting, individuals who have been socialized as men
are denied constructive outlets for the performance of dominance:
they are identified by number rather than name, and are reliant
upon prison staff for their most basic needs.
5 7
Prisoners must thus
find other outlets for expressions of mastery. Masculinity is
commonly
expressed through
sexual violence
in the prison
setting.
58
Sex and bodies are "the coin of the realm."
5 9
Within this framework,
femininity and weakness are reciprocally referential: those prisoners
displaying "feminine" traits are more likely to be victimized.
60
And
because masculinity is so dependent upon the gender binary, sexual
violence is focused upon those who transgress gender boundaries.
Feminine-appearing transgender prisoners are disproportionately
subjected to transphobic and homophobic slurs, beatings, and sexual
assault, including rape.
6 1
Prison staff reinforce the hierarchical atmosphere of
dominance. Staff often respond inadequately to rapes reported by
homosexual prisoners, because they assume that the sex was
consensual.
6 2
Many transgender prisoners are misunderstood to be
homosexual males participating in acts of consensual sex and are
therefore equally likely to be denied justice and adequate medical or
- Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the
Armed Forces, 38 UCLA L. Rev. 499, 505 (1991).
- Lee, supra note 4, at 6 (citing Christopher D. Man & John D. Cronan,
Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a
Backdrop for 'Deliberate Indifference,' 92 J. Crim. L. & Criminology 127, 130
(2002)).
Id.
Id. at 7 (quoting Christian Parenti, Lockdown America: Police &
Prisons in the Age of Crisis 187 (2000)).
Id. at6.
Id. Additionally, prisons don't supply prisoners with condoms, on the
belief that prisoners are not or should not be having sex. Therefore, sexual
assault within prison often leads to HIV infection, or the transmission of other
diseases. Infection increases a prisoner's stigmatization. Peek, supra note 50, at
1229-30.
- Lee, supra note 4, at 7.
2006]
GENDER LINES
hormone treatment is felt to be a very invasive loss of
sovereignty over one's own body, and can be extremely
psychologically
damaging.
69
This denial of gender autonomy can have serious
consequences: refusal of hormone therapy has led some male-to-
female transgender prisoners with testes to self-castrate in attempts
to stop the flow of testosterone into their bodies.
7 °
Withdrawal from
hormone treatment also has physical and chemical/emotional effects.
Prisoners denied female hormones have reported experiencing
painful reduction of the tissue around the breasts, vomiting, and
depression,
7 1
In addition to denying access to hormones, prison
systems almost universally bar access to sex-reassignment surgery.
7 2
C. Eighth Amendment Jurisprudence: Deliberate
Indifference to Serious Medical Need
Transgender individuals are an overrepresented minority in
state prisons, where they are punished harshly for their gender
transgressions. While the Eighth Amendment may be invoked to
redress the most egregious abuses, it falls short of demanding
humane placement and medical treatment for transgender
individuals. Eighth Amendment jurisprudence has failed to recognize
that appropriate placement for transgender prisoners may require an
option besides general population or administrative segregation, and
has provided only a token guarantee of gender-affirming medical care
Lee, supra note 4, at 15 n.
See, e., Supre v. Ricketts, 792 F 958, 960 (10th Cir. 1986) (noting
that "[aifter continued attempts at self-mutilation, plaintiffs testicles became
severely injured and were removed by a physician .... "); White v. Farrier, 849
F 322, 323 (8th Cir. 1988) (discussing prisoner who was denied female
hormones and attempted to castrate herself on four different occasions, using a
razor, a sharpened metal cup, glass from a smashed television set, and glass from
a radio).
- See Phillips v. Michigan Dep't of Corr., 731 F. Supp. 792, 794 (W.
Mich. 1990).
- See, e., Gina Barton, Prisoner Sues for Right to Sex Change,
Milwaukee J. Sentinel, Jan. 23, 2005, jsonline/story/
index?id=295581 (citing expense and fear that transgender prisoners would
be willing to experience the horrors of prison in order to gain access to state-
funded surgery, and quoting Walter Meyer, Professor at University of Texas
Medical Branch, and President of the Harry Benjamin International Gender
Dysphoria Association).
2006]
182 COLUMBIA HUMAN RIGHTS LAW REVIEW [38:
(and then only for a narrow segment of the transgender population).
73
The Eighth Amendment protects prisoners from the infliction
of cruel and unusual punishments.
7 4
In Estelle v. Gamble, the
Supreme Court elaborated: "deliberate indifference to serious
medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment."
75
42 U.S. §
1983 (and Bivens claims, the federal counterpart) provides a civil
remedy for violations of prisoners' Eighth Amendment rights,
76
but
case law interpreting this remedy has placed several barriers
between
transgender
plaintiffs and
damages or
injunctive relief.
77
The Estelle standard has been interpreted as requiring a two-prong
evaluation: both an objective inquiry into the seriousness of the
prisoner's situation and a subjective inquiry into the prison official's
state of mind.
7 8
While transgender prisoners have been somewhat
successful in establishing that they have serious medical needs, it
has been more difficult to prove that prison officials have been
deliberately indifferent to those needs in the context of either
- While this Note attempts to address the experience of transgender
prisoners identifying as male and those identifying as female, the majority of
reported cases addressing placement and medical care have been brought by
plaintiffs identifying as female. See, e., Farmer v. Brennan, 511 U 825 (1994);
Brown v. Zavaras, 63 F 967 (10th Cir. 1995); Lamb v. Maschner, 633 F. Supp
351 (D. Kan. 1986). This may be connected to the fact that men are incarcerated
at higher rates than women (see U. Department of Justice, Bureau of Justice
statistics, ojp.usdoj/bjs/crimoff.htm#prevalence (last visited Nov.
14, 2006) ("Women were 6% of state prison inmates in 2001, up from 6% in
1995")); transgender individuals considered to be "men" by prison system may be
incarcerated at higher rates than transgender individuals considered to be
"women."
U. Const. amend. VIII.
Estelle v. Gamble, 429 U. 97, 104-07 (1976) (concluding that 17
appointments with medical personnel over a three-month period, as well as
prescriptions for medication for back injury, high blood pressure, and heart
problems, did not constitute deliberate indifference to serious medical need)
(internal quotations and citation omitted).
- 42 U.S. § 1983 (2000); Bivens v. Six Unknown Agents of Fed. Bureau
of Narcotics, 403 U. 388 (1971) (providing a federal court claim for the
vindication of Eighth Amendment rights against federal officials).
Peek, supra note 50, at 1211.
See Farmer v. Brennan, 511 U at 846 n; id. at 847 (holding that "a
prison official may be held liable under the Eighth Amendment for denying
humane conditions of confinement only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it").
184 COLUMBIA HUMAN RIGHTS
LAW REVIEW [38:
inmates fill many clerical positions and reports are thus unlikely to
remain confidential. A prisoner who is labeled a "snitch" can expect
to face violent retaliation.
84
The Farmer test also creates an incentive
for prison officials to ignore problems: the less they investigate, the
fewer recorded facts support an inference that a risk exists.
85
Prison
records of those incidents that are reported may not be available to
prisoners, and are controlled by prison authorities who could benefit
from their destruction.
86
Litigation is also difficult because prisoners are required to
exhaust administrative remedies before turning to the courts for
assistance.
7
This exhaustion requirement increases opportunities for
a complaining prisoner to be identified as a "snitch"-a fact which
discourages reporting, which in turn decreases the likelihood of
proving prison officials had knowledge of threats. The result is an
obligatory period of continued-and usually escalating-
victimization while the prisoner exhausts administrative remedies.
88
Once the prisoner's complaint reaches a court, sentiment within the
legal community that prisoners' claims generally lack merit, and the
fact that prison officials tend to receive the benefit of the doubt on
issues of credibility, serve as additional barriers to success.
89
Although prisoners have an Eighth Amendment right to be
protected from serious risk of harm, courts have been unwilling to
fashion acceptable placement remedies. In Lamb v. Maschner, a
transsexual plaintiff requested transfer to a women's prison, or
alternately that she be protected from sexual harassment and
molestation by means other than administrative segregation. The
Lamb court rejected her demand for transfer
9°
and concluded that
Peek, supra note 50, at 1235, 1243.
Because Justice Souter specified that failure to investigate threats
would not immunize prison officials, refusal to investigate may not shield prison
staff "on the ground" from liability, but may serve to insulate higher prison
officials. Id. at 1244-46.
- Id. at 1235, 1244. On remand, Farmer continued to have difficulty
gathering the evidence necessary to support her assertion that prison officials
knew she was transsexual and that she would be at risk. The district court again
granted summary judgment for the officials; the circuit court reversed and
chastised the district court, stating that its tolerance of delays allowed
destruction of evidence. Id. at 1235-36.
Prison Litigation Reform Act, 42 U.S. § 1997e (2000).
Peek, supra note 50, at 1245-46.
Id. at 1244-45.
Lamb v. Maschner, 633 F. Supp 351 (D. Kan. 1986). The Kansas court's
GENDER LINES
she had no right to any placement option other than administrative
segregation or general population, stating "[plaintiff does not have a
constitutional right to choose his [place] of confinement and prison
officials may move
a prisoner for any
reason or no reason
at all."
9
'
Lamb was cited in Farmer v. Carlson, in which a Maryland
court rejected Dee Farmer's argument that her extended placement
in administrative segregation constituted cruel and unusual
punishment.
92
The Farmer court concluded that placing a twenty-
one-year-old transsexual into the general population at a high
security institution would pose a significant threat to security in
general, and to Farmer specifically, and that therefore a four and
one-half month stay in administrative segregation was an
appropriate use of segregation and not cruel or unusual.
93
Courts
seem unwilling to explore the possibility that placement in either
general population or administrative segregation may be cruel and
unusual punishment for transgender prisoners, instead concluding
that if one option is unconstitutional, the other must be
appropriate.
4
language assumed plaintiffs gender to be male and demonstrated both
transphobia and investment in the maintenance of the gender binary:
A male prisoner cannot be housed in a women's prison. Even
though a transfer may relieve plaintiffs anxieties, clearly a
violation of the women's rights would be at issue. Prison
authorities must be given great deference to formulate rules
and regulations that satisfy a rational purpose and segregation
of the sexes is a rational purpose.
Id. at 353.
Id.
Farmer v. Carlson, 685 F. Supp. 1335, 1343-44 (M. Pa. 1988).
Id. at 1342, 1345. The Farmer court also determined that Farmer had
no protected liberty interest in being confined in the general prison population
rather than in restrictive segregation. It also found that since Farmer was not a
member of a protected class, she could not make a colorable equal protection
claim based on sex (for which purposes the Court stated that Farmer was a male)
or age discrimination. Id. at 1341, 1344.
- In his concurrence in Farmer v. Brennan, Justice Thomas noted that
"oddly enough" Farmer had now argued both that placing her in solitary
confinement was unconstitutional and that leaving her in general prison
population was unconstitutional. Farmer v. Brennan, 511 U. 825, 861 n.
(1994) (Thomas, J., concurring). But arguably and in some contexts, both
placement options can be unconstitutional for transgender prisoners. See
Tedeschi, supra note 9, at 44.
20061
38Colum Hum Rts LRev 167 - reading on transgender in prison
Module: Hate Crime and Sexual Violence (912M3)
University: University of Sussex
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