Center for Human Rights and Humanitarian Law

As advocates, communities, and organizations continue to champion the rights of LGBTQ+ populations nationwide, incarcerated LGBTQ+ remain among the most vulnerable populations in the carceral system.  A history of systemic discrimination, harmful policing policies, and discriminatory implementation of legislation that target queer and trans people—especially those who are poor and of color—suggests an explanation for how LGBTQ+ people are disproportionately more likely to engage with the criminal legal system.  Once in prison, LGBTQ+ prisoners face astoundingly high rates of sexual abuse by prison staff and other prisoners.  According to the 2015 U.S. Transgender Survey, transgender individuals are ten times more likely to be sexually assaulted by their fellow inmates and five times more likely to be sexually assaulted by prison staff than the general prison population.  Prisoners who have survived assault in prison also risk retaliation from facility staff and other prisoners if they disclose their attack. 

Incarcerated TGNC individuals also face other vulnerabilities related to their health and medical care.  For transgender offenders who were undergoing hormonal therapy or gender affirming surgery at the time of arrest, access to needed medications and procedures can be temporarily suspended.  Additionally, facilities may deny them access to gender-appropriate clothing or other medical necessities.  TGNC prisoners seeking to file a grievance with their facility are often met with a lack of oversight and motivation on the part of administrators to adequately respond to their issues.  If a facility fails to respond to a particular grievance issue, justice for the prisoner is stalled as the prisoner must first exhaust all administrative remedies with the facility before filing a claim in court.  Exhausting these remedies proves difficult due to the esoteric and unsystematic way in which these procedures are laid out.  The burden is on the prisoner to successfully maneuver an often adversarial grievance process, and then successfully maneuver an often inaccessible legal process on their own to access their basic human rights.      

Prison Litigation Reform Act (PLRA)
The PLRA is legislation that was passed by Congress in 1996 as an attempt to limit the number of cases brought by persons in custody. Among other things, the PLRA requires that a person in custody exhaust all administrative remedies before filing a claim in court. While policies differ across states and in some jurisdictions across facilities, the exhaustion requirement must be met. Our Project facilitates this by simplifying policies and providing questionnaires to help guide drafting grievances. 

Prison Rape Elimination Act (PREA)
PREA is legislation that was passed in 2003 to address high incidences of sexual assault in corrections facilities. In 2013, the Commission mandated by the legislation promulgated regulations that aimed to curtail sexual assault around the country. Although the regulations only applied to the Bureau of Prisons, Congress attached financial incentives for States to implement the regulations in their prison policies. The PREA regulations include specific safeguards for transgender persons in custody. Our Project uses the PREA regulations to bolster advocacy letters on behalf of the individuals who write to the Project. 

Deliberate Indifference (DI)
Deliberate Indifference is the standard by which courts decide if a facility is liable for the injuries sustained by persons in custody. To meet the standard for DI, an individual must know that the facility had actual knowledge of the danger and failed to address it, which resulted in the injury that the person in custody sustained. Our Project aids in identifying instances of DI by sending advocacy letters on behalf of transgender PIC to facilities.

LGBT Bar Talk: How can legal professionals support transgender prisoners?  Whit Washington has the answer. 

the lgbt bar

According to the National Center for Transgender Equality, trans Americans are more than twice as likely to be incarcerated than their cisgender peers due in large part to harassment, profiling, and abuse by law enforcement professionals. Incarcerated transgender and gender non-conforming (TGNC) individuals face unique challenges within the prison system, from a lack of gender-affirming medical care to increased rates of sexual assault. Moreover, when trying to get their needs addressed in court, TGNC prisoners often face the daunting task of having to represent themselves without the assistance of counsel. Enter Whit Washington, a young attorney working to change the way prison facilities treat TGNC inmates on both a macro and micro level.

Whit Washington is an Equal Justice Works Fellow and the project manager for the American University Washington College of Law Center for Human Rights & Humanitarian Law’s Project for Transgender Incarcerated Survivors (“the Project”), sponsored by Uber Technologies, Inc., and Littler Mendelson, P.C. Through the Project, Whit provides direct services that address the needs of incarcerated TGNC individuals, particularly those who have been sexually assaulted or who are having issues accessing their medical needs. Gender-affirming medical needs include but are not limited to clothing that matches an individual’s gender identity and hormone replacement therapy. They describe what they encounter in their work as an “unhealthy mix” of sexual assault cases and complaints of lack of access to gender-affirming medical care. Whit does not litigate on behalf of complainants; instead, they provide resources and grievance assistance for incarcerated TGNC folks to more effectively represent themselves. For example, to assist with complaints of failure to provide gender-affirming medical care, Whit is creating a comprehensive list of citations from successful medical necessity legal arguments to quotations from the Diagnostic and Statistical Manual of Mental Disorders (DSM). For complaints of sexual assault, Whit sends victims resources including the federal Prison Rape Elimination Act (PREA) standards to assist in building and substantiating their claims.

Since beginning the Project in October 2017, Whit has found that the most difficult aspect of their work is navigating the bureaucracy and lack of transparency inherent in the prison system. Facilities often stall the grievance process, with little oversight to prevent this obstruction. This problem is particularly salient in relation to the rampant sexual assault of TGNC individuals in custody: although PREA obligates facilities to track complaints of sexual assault, facilities sometimes underreport.  To this end, Whit plans to draft a report comparing the official facility PREA reports of sexual assault with the issues reported by the individuals who contact the Project.

Through the Project, Whit has made tremendous strides toward helping TGNC prisoners access the information they need to successfully plead their cases in court. However, Whit says that working on behalf of full equality for transgender prisoners is a Sisyphean endeavor. Whit encourages everyone interested in serving this community to educate themselves further, to get involved, and to volunteer.  As Whit observes, “We do not have the moral authority to judge folks on what they have done when we ourselves are not moral in how we treat them once they are incarcerated.” TGNC lives are on the line, and nothing less than the morality of the American judicial system is at stake.

“We do not have the moral authority to judge folks on what they have done when we ourselves are not moral in how we treat them once they are incarcerated.”

Whit Washington, Equal Justice Works Fellow