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04 November 2012

Notes towards the history of trans persons in prison: Part I

Part I: to the conviction of Oscar Wilde
Part II: to Stonewall
Part III: to Farmer v. Brennan
Part IV: to the Synthia Kavanagh Human Rights Case
Part V: to the National Offender Management Service, New prison guidelines, 2011
Part VI: Comments & Bibliography

Until the 1970s homosexuality and transvestism were hardly differentiated in legal contexts, and indeed cross-dressing was often taken to demonstrate homosexuality. Thus trans people were often convicted under anti-sodomy laws.
Punishment by incarceration was unusual before the 18th century. Accused persons would be held until their trial. Afterwards if found guilty they would be executed, mutilated, put in the stocks or pillory, transported, fined or exiled, but not usually imprisoned.
Women were not usually confined in separate prisons until the later 19th century.
There are several strands in this history:
  1. The coming and going of laws explicitly against homosexuality and/or transvestity. However in times and places where there were no such laws – the major example being those countries which adopted the Napoleonic Code – trans persons were still arrested under such charges as breach of the peace, affronting public morality etc. Actual laws against transvestity are rare, the main examples being France's Law of 1853 and those of many US Municipalities. The India Law of 1871 made Hijras illegal no matter how they dressed.
  2. The separation of women prisoners into separate prisons or at least separate wings. After this happened, the more aggressive and horny of male prisoners took to designating some of the remaining inmates as substitute women and demanding sexual services from them. Trans women were obvious candidates, and also gay men, but also attractive straight men.
  3. Some trans persons were able to continue as their identity gender for some time after being arrested.
  4. From the 1960s inwards, trans persons had either started transition before being arrested, or intended to start. Prison authorities have been reluctant to grant permission for this.
  5. In recent years most prison authorities have accepted current genital status as the criterion for which prison an inmate is sent to.
  6. Other than under England's New Prison Guidelines, 2011, only a handful of pre-op inmates have been able to be sent to a prison congruent with their gender identity. The choice of these seems to be designed to infuriate feminist groups in that most of them were actually convicted for violence against, even murder of, women.
Abbreviations. HMP=Her Majesty's Prison; USP=United States (Federal) Prison; CMF=California Medical Facility.

The bibliography is at the end of the final part.

Part I: to the conviction of Oscar Wilde

1232. Papal Inquisition founded. Homosexuals were a frequent target.
1483. Spanish Inquisition founded. Between 1540 and 1700, more than 1,600 people were executed for sodomy.
1532. Holy Roman Empire makes sodomy punishable by death.
1533. The English Buggery Act signed by Henry VIII Tudor. Unnatural sexual act against the will of God and man to be punishable by death. "the offenders being hereof convicted by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realm. And that no person offending in any such offence shall be admitted to his Clergy". However the first man convicted of buggery alone, Nicholas Udall, Headmaster of Eton, had his sentence commuted to imprisonment, and served less than one year. The Act was re-enacted 3 times, and then in 1541 'for ever'. 1548 restated by the new king Edward . 1558 Elizabeth reinstated the 1533 Act.
1569. Mexican Inquisition founded. Homosexuality was a prime concern and the Inquisition inflicted stiff fines, spiritual penances, public humiliations and floggings for what it deemed sexual sins.
1620. Brandenburg-Prussia criminalized sodomy, making it punishable by death
1721. Anstasius Lagrantinus Rosenstengel in Halberstadt was charged with wearing men’s clothes, going with the Pietists, frequent desertions and perjuries, sodomizing his wife, stealing from his wife and converting for monetary gain. He was beheaded.
1746. Charles Hamilton, quack doctor, was arrested, publicly whipped and imprisoned in Glastonbury for marrying several women.
1776. USA. One of the first legislative acts undertaken by each of the newly independent US states was to adopt a "reception statute" that gave legal effect to the existing body of English common law to the extent that American legislation or the Constitution had not explicitly rejected English law. Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state's constitution, and some by court decision. British traditions such as the monarchy were rejected by the U.S. Constitution, but many English common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. Significant elements of English common law prior to 1776 still remain in effect in many jurisdictions in the United States, because they have never been rejected by American courts or legislatures. Thus the 1533 Buggery Act became US Law.
1777.  Ann Marrow convicted at Guildhall for wearing men's clothes and marrying three women. He was ordered to stand pillory, where he was blinded, and served six month's in jail.
1780.  John Taylor was imprisoned in Newgate for debt.
1791. France. New criminal code after the Revolution contained only 'real crimes' and not 'phoney offenses created by superstition, feudalism, the tax system, and despotism (ces délits factices, créés par la superstition, la féodalité, la fiscalité et le despotisme)" '. Thus blasphemy, heresy, sacrilege, witchcraft, sodomy and transvestity were no longer crimes. This change stood in the Napoleonic Criminal Code of 1810.
1794. Prussia abolished death penalty for sodomy.
1795. Poland was occupied by Russia, Prussia & Austria and the 3 nations' anti-sodomy laws were applied.
1798. England & Wales. No woman sentenced to be publicly pilloried or whipped after this date.
1806. England & Wales. More executions for sodomy than for murder.
1805-1835. England & Wales. 3% of executions were for sodomy, 21% for murder; the rest for property crimes.
1813.  Lars Molin was caught again thieving, and sentenced to life at the fort of Carlsten, Sweden. He was pardoned in 1839.
England & Wales. Pillory abolished except for subornation and perjury.
1817. England & Wales. All flogging of women formally abolished.
1816-1840s. England. The General Penitentiary at Millbank (Now the site of the Tate Gallery) became an alternative rather than a prelude to transportation. One of its pentagons was reserved for women.
1822. A sexual scandal erupts after 30 female prisoners were placed at the Emu Plains prison farm, NSW, with the intention of preventing 'unnatural crimes'.
1830. Brazil. Imperial Penal Code based on Napoleonic Code has no references to sodomy, homosexuality or transvestity.
1832. Tsar Nicholas I added Article 995 to Russian Penal Code forbidding sodomy. Persons convicted were to be stripped of their rights and relocated to a Siberia for four to five years.
1835.  James Pratt & John Smith were the last two men hanged in the UK under the 1533 Buggery Act
1836. George Wilson was arrested in Baltimore for horse stealing. The prison authorities flogged him again and again as he refused to be a woman.
Mary Jones, New York, sentenced to 5 years in a man's prison for robbery.
1837. England & Wales. Pillory completely abolished.
1848. Columbus, Ohio, Municipal law against cross-dressing. The first of many US cities to do so. (This and many similar taken from Stryker, Transgender History: 32-3.)
Among the many revolutions of 1848 was a prison riot at Riom, Auvergne, which was triggered when the guards separated a male couple.
1851. Chicago. Municipal law against cross-dressing.
1853. France. Article 471, 15 of the Penal Code of 10 June passed under the Second Empire criminalized transvesting in public spaces and balls.
1853. England & Wales. Penal Servitude Act provided for imprisonment as an alternative to transportation. This was required as Australia increasingly objected to receiving transported felons.
Brixton Prison, London, built 1820, was a women's prison 1853-69. During this period it was for women who preferred imprisonment rather than penal transportation to Australia, and for female inmates who were pregnant.
1856. Wilmington, Delaware & Springfield, Illinois. Municipal law against cross-dressing.
1858. Ottoman Empire decriminalized sodomy.
Newark, New Jersey & Charleston, South Carolina. Municipal law against cross-dressing.
1859. Sardinia's Penal Code punished male homosexuality.
1860. India. Section 377 of the Penal Code criminalizes all carnal intercourse against the order of nature with any man, woman or animal, with a maximum punishment of life imprisonment. This became the model for legislation throughout the British Empire, and was repeated in the Penal Code of many countries with the same section number.
United Italy, except for the Two Sicilies, adopted Sardinia's sodomy laws,.
Kansas City, Missouri. Municipal law against cross-dressing.
1861. UK. The Buggery Act was replaced by The Offences Against the Person Act. Buggery was no longer a capital crime and thus the death penalty for buggery was finally abolished. A total of 8921 men had been prosecuted since 1806 for sodomy with 404 sentenced to death and 56 executed.
Houston, Texas. Municipal law against cross-dressing.
1862. Toledo, Ohio. Municipal law against cross-dressing.
1863. Memphis, Tennessee & San Francisco. Municipal law against cross-dressing.
1864. St Louis, Missouri. Municipal law against cross-dressing.
1867. London barman Thomas Walker accused of stealing.  Discovered to be female-bodied in remand prison when refused to take a bath.    Forced into female clothing and sentenced to three months with hard labour. 
1870.  Amelia Gourlay was arrested on suspicion of soliciting. Enquiries found that she was male-bodied, and as a woman wanted for two murders. She was compelled back into her male persona, and guillotined.
1871. The acquittal of Boulton and Park established that cross-dressing was not a crime in English Law.
Homosexuality was criminalized throughout the German Empire by Paragraph 175 of the Reich Criminal Code;
India. Criminal Tribes Act (Act 27) called for the registration, surveillance and control of certain tribes, including Hijras.
Mexico adopted the Napoleonic Code in 1871 following the French Occupation, so in theory sodomy, homosexuality and transvestity were all legal. However their version of the code contained Article 787: The punishment of greater arrest and a fine of 25 to 500 pesos will be imposed on he who affronts public morality or good habits ... Immodest will be considered as: any action that in the public eye is classified as contrary to modesty.
1870s. US opened first separate prisons for women
1877. Minneapolis, Minnesota. Municipal law against cross-dressing.
1879. Oakland, California. Municipal law against cross-dressing.
1880. Dallas, Texas. Municipal law against cross-dressing.
1881. Nashville, Tennessee. Municipal law against cross-dressing.
1882. San José, California. Municipal law against cross-dressing.
1883. Tucson, Arizona & Columbia, Missouri. Municipal law against cross-dressing.
1884. Peoria, Illinois. Municipal law against cross-dressing.
1885. England. 1885 Criminal Law Amendment Act: Section 11 "Labouchere Amendment". Evidence of buggery was no longer a requirement for a conviction of Gross Indecency.
Butte, Montana. Municipal law against cross-dressing.
1886. Denver, Colorado. Municipal law against cross-dressing.
1889. Italy decriminalized homosexuality.
Lincoln, Nebraska. Municipal law against cross-dressing. Kansas City, Missouri. Second municipal law against cross-dressing.
1890. Omaha, Nebraska. Municipal law against cross-dressing.
1892. Cheyenne, Wyoming. Municipal law against cross-dressing.
1894.  Amadee Chatelle, Stratford, Ontario, convicted of killing a little girl. He was hanged the next year.
Frank Blunt , Wisconsin, was sentenced to the penitentiary for one year for stealing $175.
1895.  Ferdinand Haish, San Francisco, was jailed for wearing women's clothes of the latest fashion.
Milton Matson arrested for endorsing checks made out to Luisa Matson. He was 2 weeks in the County Jail in San Jose until a telegraph arrived for Luisa Matson, which created general confusion and he was released.
Oscar Wilde convicted of Gross Indecency and sentenced to 2 years hard labour in Wandsworth and then Reading Prisons.

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