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
Prison, like sports (which I documented in August) is predicated on the gender binary only more so than normal life. Thus the existence of trans and intersex persons presents a problem that both of them attempted for a long time to ignore, but are now having to come to terms with.
This is a large topic, and I am sure that I have missed much, especially in non-English-speaking countries.
Prisoner is of course a term encompassing much variety. Some prisoners are in for nasty crimes, others for petty crimes that result from living as trans but unable to get any legal form of work. Others, more so in earlier years, are simply charged either with transvesting or with homosexuality.
It did seem for a while, with the pioneering examples of Shelly Ball and Synthia Kavanagh, that Canada was leading the world on the issue of trans in prisons. However Katherine Johnson was in the same prisons at the same time, and was unable to get treatment. Canada's lead was an illusion without substance, and the reactionary government of Stephen Harper (2006-15) cut off all funding.
Judges and prison administrators have 6 options re convicted trans persons:
- Locate them as per birth gender, ignore their current appearance and genitals, and put them in with the general population and ignore whatever abuse happens. This was common practice until fairly recently.
- Locate them as per their current genitals. Most North American and European prisons are now doing this. This allows post-operative women to go to women's prisons and allows trans men without phalloplasty to also go to women's prisons. However pre-op and non-op trans women are put at great risk of being abused. The young and the poor are very likely to be in this last group.
- Create separate wings or even separate prisons for trans (and possibly gay) prisoners. In the US this has evolved at Vacaville, Rikers Island and the Edna Mahan Correctional Facility, although both of the former two were discontinued in 2005. It will be interesting to see what happens with the trans-only prison at Emploi in Tuscany.
- Put trans prisoners, who elect or who complain of being raped, in 23-hour-per-day lockdown solitary confinement. Such confinement is mainly intended as punishment for violent prisoners and understandably trans prisoners put up with being raped rather than opt for this alternative. This is the policy at Rikers Island since 2005.
- To not send convicted trans person to jail unless their crime is very serious. This option was being followed by judges in the UK until the New Prison Guidelines came out last year. Not surprisingly writers for The Daily Mail were having conniptions over the practice.
- Locate them as per legal gender. The England & Wales: National Offender Management Service, Ministry of Justice issued New prison guidelines is an amazing step forward. Genitals are not to be checked. If the inmate is unable to produce a revised birth certificate or a Gender Recognition Certificate, the Gender Recognition Panel may be consulted. As per the stated fear of some that the cis women inmates could be at risk, the Guidelines carefully state: "There are some women who are guilty of violent crimes against other women and are still managed safely in the female estate. Any transsexual women with a gender recognition certificate who pose similar risks should be managed in a similar way in the female estate." Young transsexuals who have not yet applied for a Gender Recognition Certificate will have difficulty in being designated as female, but non-acceptance for NHS surgery and/or being unable to afford private surgery will not have to go to a male prison for that reason. At the same time the Guidelines allow trans men to choose to be in a women's prison. So far this approach is in England and Wales only. The non-imprisonment that was upsetting The Daily Mail has ended. This approach can easily be adopted by countries with Gender Recognition Laws: Spain, Portugal, Argentina, and probably also countries like Germany and Sweden. However it cannot be adopted where legal gender is provincially defined. We saw in the case of Tania Veilleux that Quebec's recognition of her gender was not honoured by the national Correctional Service of Canada.
In addition, as mentioned in (6) above: "There are some women who are guilty of violent crimes against other women and are still managed safely in the female estate." Some cis women are as much a threat to other women as Pilley, Hall, Masbruch and Kosilek.
I included a few items about cis women being raped by male guards. As a feminist, and as a human being, I think that it is appalling that there are male guards in women's prisons. 95% of inmates are male, and so male guards do not need to be in female prisons for their career development. The frequency of cis women prisoners being raped by male guards is a serious problem, and statistically is enormously higher than being raped by a trans woman. I google searched GenderTrender for this topic and found absolutely nothing. What do we make of that?
The US is the first county to count more rapes of men than of women. However it is very unlikely to be the only one. We certainly have no statistics on prison rape in say Brazil or Turkey. So kudos to the US for starting to discuss the problem.
It was accepted in the 19th century that cis women should be segregated from male prisoners, especially as male prisoners are so more numerous. Cis women being absent, the more aggressive and horny of the men are willing to use trans women instead, and of course trans women should either be segregated (but not in solitary confinement) or in women's prisons. That will help trans women, but of course will not solve the problem of prison rape. Without either cis or trans women, certain male prisoners, the slightly-built, the better looking, the presumed to be gay, are designated as pseudo-women and compelled into sexual slavery. With will and the co-operation of the guards this problem can be much reduced. I could not find any reliable statistics, but it seems that the problem is much less in Europe than in the US. However with the current trend to privatization the odds of the problem being solved are much reduced as it is cheaper to do nothing.
- "LGBT people in prison". Wikipedia, the free encyclopedia. en.wikipedia.org/wiki/LGBT_people_in_prison.
- "Transsexual Prisoners". National Center for Lesbian Rights. www.transgenderlaw.org/resources/prisoners.htm.
- Alana J. Davis. "Sexual Assaults in the Philadelphia Prison System and Sheriff's Vans". Trans-action, 6,2, 1968:8-17. Online at: www.wcl.american.edu/endsilence/documents/ladiesbehindbars.pdf.
- Len Clemmensen. Male gender dysphoria and criminality. University of Toronto, MA thesis, 1986.
- John M. Coggeshall. " "Ladies; behind bars: A Liminal Gender as cultural mirror". Anthropology Today, 4,4, 1988. Revised as "Those Who Surrender Are Female: Prison Gender Identities as Cultural Mirror" in Pamela R. Frese & John M. Coggeshall (eds). Transcending Boundaries: Multi-Disciplinary Approaches to the Study of Gender. New York: Bergin & Garvey, 1991. www.wcl.american.edu/endsilence/documents/ladiesbehindbars.pdf.
- Richard Green. Sexual Science and the Law. Cambridge, Mass: Harvard University Press, 1992:116-7.
- Richard Green. "Transsexualism and the law". Bulletin of the American Academy of Psychiatry and the Law, 22, 1994:511-7.
- Richard Green. "American Law Does/Does Not Respond to the Transsexual". Gendys Conference, 1994. www.gender.org.uk/conf/1994/green.htm.
- Colloquy on European Law. Transsexualism, Medicine, and Law: Proceedings. Strasbourg: Council of Europe Pub, 1995.
- Maxine Petersen, Judith. Stephens, Robert Dickey, and Wendy Lewis. "Transsexuals within the Prison System: An International Survey of Correctional Services Policies". Behavioral Sciences & the Law, 14:219–229, 1996.
- Katherine Johnson & Stephanie Castle. Prisoner of Gender: A Transsexual and the System. Vancouver: Perceptions Press, 1997.
- Ian Burrell. "Murderer to get sex swap on the NHS". The Independent, 12 March 1999. www.independent.co.uk/news/murderer-to-get-sex-swap-on-the-nhs-1079940.html.
- Richard Linnett. “Why Her Warden Calls the Lady Mister”. Hustler Magazine. May 1999. Online at: www.geocities.ws/karenspecial/tgprison.html.
- barbara findlay. Transsexuals in Canadian Prisons: An equality analysis. Lavender Law, 1999. www.hawaii.edu/hivandaids/Transsexuals_in_Canadian_Prisons__An_Equality_Analysis.pdf.
- S. Goodchild. "Prison Inspector calls for Sex Change Ops". Independent on Sunday, 13 Feb 2000.
- Jessie Shafer (ed). TRIP JOURNAL. Transgendered Residing In Prisons, 1,1, Winter 2000. http://gicofcolo.org/Upload/TIP/PDF/2000/tip_2000_winter.pdf.
- Jake Blight. Transgender Inmates. Australian Institute of Criminology, September, 2000. www.aic.gov.au/documents/A/8/6/%7BA867CA37-BCA3-4AAF-8464-1EF0352658AD%7Dti168.pdf.
- Joshua Goldberg. Trans People in the Criminal Justice System A Guide for Criminal Justice Personnel. [New Westminster, B.C.]: Justice Institute of British Columbia, Centre for Leadership and Community Learning, 2003.
- C. Peek. "Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and The Eighth Amendment". Santa Clara Law Review, 2004, 44 : 1211-1247.
- Adam Liptak. "Ex-Inmate's Suit Offers View Into Sexual Slavery in Prisons". The New York Times, October 16, 2004. www.nytimes.com/2004/10/16/national/16rape.html.
- Alex Coolman, Lamar Glover & Kara Gotsch. Still in Danger: The Ongoing Threat of Sexual Violence against Transgender Prisoners. Los Angeles: ACLU, 2005. www.justdetention.org/pdf/stillindanger.pdf.
- Janet Baus, Dan Hunt & Reid Williams (dir). Cruel and Unusual. US 66 mins 2006. See below.
- "Transgender Prisoners, Identity, and Detention: Policy Recommendations". Human Rights Watch, March 1, 2006. www.outcast-films.com/films/cu/transgender_prisoners.pdf.
- Stephen Whittle, Lewis Turner & Maryam Al-Alami. "Chapter 1.5: InEqualities InAction: The case of the Prison Service disappearing Guidelines". Press For Change & Manchester Metropolitan University, February 2007: 12. www.pfc.org.uk/pdf/EngenderedPenalties.pdf.
- "Transgender Prisoners in Canada". Vancouver Prison Justice Day Committee, July 2007.
- Lewis Wallace. "Transgendered Behind Bars". In These Times, October 31, 2007. www.inthesetimes.com/article/3372/transgendered_behind_bars.
- Kalani Key. "How I Survived Men's Prison as a Woman: Dispatches from The Pen". New America Media, Nov 14, 2007. http://news.newamericamedia.org/news/view_article.html?article_id=21b4698eedc865fdaeec8f3845097ba9.
- transgenderinmate.blogspot.ca, 2008
- Alvin Lee. Trans Models in Prison: The Medicalization of Gender Identity and the Eighth Amendement Right to Sex Reassignment Therapy. Harvard Law School. 2008. www.law.harvard.edu/students/orgs/jlg/vol312/447-472.pdf.
- Karen Franklin. "Prison pipeline for transgender youth". In the news: Forensic psychology, criminology, and psychology, March 26, 2008. http://forensicpsychologist.blogspot.ca/2008/03/prison-pipeline-for-transgender-youth.html.
- Regina Kunzel. "Lessons in Being Gay: Queer Encounters in Gay and Lesbian Prison Activism". Radical History Review, 100, Winter 2008. http://worldoftomoffinland.com/insider_trading_tof/wp-content/uploads/2010/05/queer-encounters-with-prison-activism-article.pdf.
- Benish A. Shah. "Lost in the Gender Maze: Placement of Transgender Inmates in the Prison System". Journal of Race, Gender and Ethnicity, 5,1, Fed 2010. www.tourolaw.edu/journalrge/uploads/issues/vol5issue1/shah_final.pdf.
- David Kaiser & Lovisa Stannow, "The Way to Stop Prison Rape". The New York Review of Books, 25 March 20102. www.nybooks.com/articles/archives/2010/mar/25/the-way-to-stop-prison-rape.
- Jane Fay. "Comment: Prison Service must jail transgender criminals safely". Pink News, 14 Jan 2011. www.pinknews.co.uk/2011/01/14/comment-prison-service-must-jail-transgender-criminals-safely.
- Jill Filipovic. "Is the US the only country where more men are raped than women?: The figures on rape may be uncertain, but we could lower the sexual assault rate in American jails – if we had the political will". The Guardian, 21 February 2012. www.guardian.co.uk/commentisfree/cifamerica/2012/feb/21/us-more-men-raped-than-women.
- Daniel Villarreal. "Welcome to Texas, prison rape capital of the U.S.". Dallas Voice, 22 Mar 2012. www.dallasvoice.com/texas-prison-rape-capital-u-s-10105138.html.
- Jillian T. Weiss. "Op-ed: The Complicated Rights of Transgender Prisoners". The Advocate, Oct 10 2012. www.advocate.com/commentary/2012/10/10/op-ed-complicated-rights-transgender-prisoners.
- Tali Woodward. "Life in Hell". San Francisco Bay Guardian, Online at: www.sfbg.com/40/24/cover_life.html.
- Vito Fun. "Tranny in a Man’s Jail: The New York Penal System Threw Our Friend Kira to the Wolves". Vice Beta. www.vice.com/read/tranny-in-a-man-s-jail-448-v17n6.