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Brenda V. Smith, former Commissioner of the National Prison Rape Elimination Commission (NPREC), along with the six other former members of the NPREC, signed onto a letter urging the Bureau of Prisons (BOP) to honor the original intentions that undergird the specific protections afforded to transgender individuals by PREA and reevaluate their decision to modify its housing designation policy regarding transgender inmates.

The NPREC former members wrote the letter in response to the Trump Administration’s reversal of Obama Administration prison policies created to protect transgender inmates. In 2017, the Obama Administration released a guidance memo for the BOP that provided instruction on intake and supervision of transgender inmates, including medical treatment, housing guidelines, and use of pronouns. The guidance memo included an order to use “gender identity” when determining how transgender prisoners are assigned housing. The current administration ordered the use of “biological sex” instead of gender identity in making housing determinations. The result would be that a transgender woman could be placed in a male facility because she was designated male at birth rather than considerations about her gender identity, safety and access to appropriate medical and mental health services.

“The Trump Administration’s decision to change the BOP policy for transgender inmates puts these inmates at significant risk of sexual abuse, assault, and other types of discrimination,” said Smith. “This policy is in direct conflict with Prison Rape Elimination Act (PREA) and its Standards and will likely only exacerbate the occurrence of sexual abuse and violence in prisons.”

Transgender people face abuse and violence in America’s prison system, enduring sexual and physical violence at alarmingly high rates. According to the 2015 US Transgender Survey, transgender people are ten times as likely to be abused by fellow inmates while incarcerated (as compared to the general prison population) and five times as likely to be abused by prison staff. The Obama-era guidance was designed to reduce victimization by housing transgender inmates on a case-by-case basis. The guidance permitted transgender inmates’ view of their own safety to be a given serious consideration in housing decisions.

This week, President Trump endorsed a bipartisan Senate criminal justice reform bill, the First Step Act, which includes sentencing reform and efforts to reduce prisoner recidivism. However, the Senate bill fails to include provisions for significant prison reform, protections for transgender individuals, and measures to reduce sexual violence in custody.

We encourage the Trump Administration, Congress, and prison officials to continue to adhere to PREA, screen all individuals at admission and upon transfer to accurately assess their risk of experiencing abuse, and strengthen protections for all individuals in custody, particularly transgender people who are at such high risk of abuse

“At a time in the history of our country when it appears that the progress we have achieved in diminishing the hostile and discriminatory treatment of members of the transgender community is in jeopardy, we ask the Bureau to reevaluate the prudence of maintaining the language contained in the Change Notice.”

Former Members of the National Prison Rape Elimination Commission
Brenda V. Smith is a Professor of Law and the Senior Associate Dean for Faculty and Academic Affairs.  Professor Smith is a widely consulted expert on issues at the intersection of gender, crime, class and sexuality.  She is the Director of  the Project on Addressing Prison Rape.  In November 2003, Professor Smith was appointed to the National Prison Rape Elimination Commission by the United States House of Representatives Minority Leader, Nancy Pelosi (D. CA).  Recent articles include:  Uncomfortable Places, Close Spaces: Theorizing Female Correctional Officers’ Sexual Interactions with Men and Boys in Custody, 59 U.C.L.A. L. Rev. 1690 (2012); After Dothard: Female Correctional Workers and the Challenge to Employment Law, 8 FIU L. REV. 469 (2013); and Boys, Rape and Masculinity: Reclaiming Boys’ Narratives of Sexual Violence in Custody, 29 N.C.L.Rev. 102 (2015).