Over 6,000 transgender individuals are estimated to be incarcerated in state and federal facilities in the US. In a penal system segregated by assigned sex at birth, prisons are quite literally designed to not respect the rights of incarcerated transgender people. Only a few special housing units for trans inmates exist in the country, with most trans people behind bars abandoned to contend with heightened discrimination and violence. Even in California, which at least on paper has some of the most progressive laws on trans prisoners’ rights in the country, the problem of disproportionate punishment and vulnerability is widespread. Journalist Lee Romney and A.D. Lewis, an attorney with the Prison Law Office, join Rattling the Bars to discuss the reality of transgender prisoners in California and around the country.
Studio/Post-Production: Cameron Granadino, David Hebden
Transcript
Mansa Musa: Welcome to this edition of Rattling the Bars. I’m your host, Mansa Musa. The preemptive to the Declaration of Independence famously states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These truths do not apply to the estimated 5,000 transgender people residing in US prisons and another 1,200 who are incarcerated in the federal system. And what is self-evident is the inhumane treatment of these prisoners who identify themselves as being transgender.
Joining me to talk about the inhumane treatment of transgender prisoners are Lee Romney and A.D. Lewis. Welcome to Rattling the Bars. Tell our viewers and listeners about yourselves.
Lee Romney: I’m Lee Romney and I’m a longtime journalist. I spent 23 years at the Los Angeles Times, and when I was there I developed a bit of a specialty intersecting mental health and criminal legal systems. So looking at folks who are incarcerated either because of mental illness or folks who suffer from prison conditions that take a real toll on mental health. That’s how I started this reporting. It’s going to be part of a larger podcast that I’m working on with a former public defender called November In My Soul.
We have already taken a look at the era when being LGBTQ was enough to label you a criminal and mentally ill. Then, for our contemporary episode, we looked at, what’s the situation now. How do these biases still play out? And trans women, especially – All transgender people in prison have extremely difficult circumstances that they have to manage – But for trans women and especially Black trans women, it’s extreme. They’re over-criminalized to begin with then once they get into prison, the conditions are really egregiously harsh. So that’s where we were coming from when we started looking at this.
Mansa Musa: Okay. A.D.?
A.D. Lewis: Yeah. My name is A.D. Lewis. I’m an attorney at the Prison Law Office, which is based in Berkeley, California and I run and founded our trans-specific project, which is called Trans Beyond Bars. Our class action cases focus on a couple of different things; One is people with disabilities and the second is medical care. The third is access to mental health care inside. So I work with trans people across all of our cases about issues that impact them. And thanks for having us on. I’m really excited to be here.
Mansa Musa: Okay. So let’s unpack this because it was you, Lee, y’all did a story on California’s recent legislation. The Bureau of Justice Statistics estimated that there are over 3,200 transgender people in US prisons and 1,827 in local jails nationwide. However, this might be an underestimation. In 2020, NBC News found that there were 4,890 transgender people locked up in state prisons alone.
All right. This is a unique population in and of itself. Both of y’all can answer this: Talk about how the federal and state prisons where transgender prisoners find themselves have traditionally treated them. How have they been traditionally treated, men and women that identify themselves as transgender?
A.D. Lewis: This is A.D. Historically, federal prisons, state prisons, and local county jails have housed everyone, regardless of gender identity, based on the external appearance of their genitals. Gender identity has never really mattered in housing for folks inside. So if trans people have had certain types of gender-affirming surgeries where their external genitals match their gender identity or match what people think their gender identity should be, then yes, of course, there have been trans women who have been housed in women’s facilities over time, who people have not known were trans women. Same thing for trans men. There have been trans men who… And for the listeners, when we talk about trans women, we’re talking about people who are women who are assigned male at birth, but who are women. And when we talk about trans men, we talk about people who are men but were assigned female at birth, who are at various ages of their medical transition.
So yes, there absolutely have been trans people who have been housed based on their gender, but it’s not because of their gender, it’s because of the expectations of prison officials, about the role of genitals and housing placement. That is historically how this has happened. Now, what has shifted in recent years, both at the federal level as well as state prisons, as well as local county jails, is that some places have begun to house very, very, very small numbers of people based on their gender identity, not based on whether someone’s had surgery, even though many people have had surgery. And so now we’re seeing more states move towards what’s called gender congruent housing or gender-affirming housing where people are not based on the sex they were assigned at birth, but instead, they’re actually being housed based on their gender identity. In California, we know of a couple dozen people between 24 and probably 35 right now who are housed in a gender congregant setting.
There are very few anywhere else, single digits in almost every other state. Some places, especially at the county jail level, have trans-specific housing units where people can opt-in to going into a trans-specific wing. LA has one of the most famous ones, but there are other county jails and some state prisons that have LGBTQ-specific units or even trans-specific units that people can opt into and go there if they want. Historically, that’s how it’s going and by and large, that’s still how it’s going. That’s reflective of what’s happening. There are little pockets of more affirming policies, but again, those have not been implemented at large. They’re not impacting all people and they certainly are not applied fairly across everyone. Again, like many things in prisons and jails, we can see the exact same disparate impacts amongst race, disability, et cetera. And who gets to benefit from these policies?
Mansa Musa: Right, right. And Lee?
Lee Romney: Yeah. That’s great context. I would add that the with Federal Prison Rape Elimination Act, which went into effect with specific guidelines in 2012, you cannot house someone solely based on their genitalia. It says that. The response to that has mostly been okay, well we’ll examine these on a case-by-case basis. And a case-by-case basis has basically maintained the status quo for the most.
So people look at California and think, oh my gosh, California is so out there, but California was not the first to start implementing this… What did you call it, A.D.? Gender congruent housing. Not the first. But in some ways, the law that did pass here was the most expansive in its intent. A lot of work went into it. But then we see that what’s actually happening on the ground is it’s been very slow, implementation has been super slow. There are at least 300 people, mostly trans women in men’s facilities, but also several dozen trans men in women’s facilities who are still waiting to even have a hearing. And they haven’t been informed even what the status of that is.
So they’ve made their request clear under this law then it’s like everything froze in its tracks. So they started implementing, and then there’s this huge backlog, and then we took a deep dive to look at, well, for those who have been transferred to the Central California Women’s Facility, how’s it been going?
Mansa Musa: We were talking off-camera. I was incarcerated for 48 years and I went into the system in the ’70s. I opened up by talking about how this is a unique population and the conscience of society in terms of recognizing LGBTQ and recognizing people’s right to identify themselves however they deem and get support in regard to that. But I noticed that when I was in prison, the attitude of the prison administration was, we’re going to put you where you’re at. Survival of the fittest, you have to do whatever you have to do to survive. We’re not going to protect you, we’re not going to relate to your decision. We are going to say that as far as we are concerned, you got a sentence and you going to be punished.
That’s why I was asking in terms of the treatment, because I was reading Solitary Watch and they were saying that for the most part, most institutions are putting transgender men or women into solitary confinement as a form of isolation, as opposed to recognizing their right to choose to be who they want to be and be protected like everybody else. Is this something that y’all observed in y’all research or A.D., in your conversation with transgender men and women?
A.D. Lewis: Absolutely. So for the folks who don’t spend much time in jails or prisons, there are lots of different types of restrictive housing conditions. One is solitary confinement or administrative segregation. Other types are called protective custody, SNY yard, or sheltered living. There are all these euphemisms for what is essentially solitary confinement, and it goes by many names and it has many different sets of conditions. But by and large, trans people, especially in county jails, actually experience high rates of restrictive housing. Across the county jail cases, we have, I don’t even know how many county jail cases we have, but probably nearly 10 in every single one of those settings, trans people are in restrictive housing conditions where they are not allowed out of their cells for 21-23.5 hours a day.
So every trans person in a county jail who is out as trans, basically, that I know of, does not get out of their cell for more than three hours a day, including in places where we’ve sued in. So again, there are some exceptions like the Los Angeles exception, et cetera, but across the nation and county jails, this is very common that trans people are completely isolated literally in another setting of the jail, or they’re in their house based on the sex assigned at birth or their external genitalia. And even within that, it’s like PC within PC within PC.
Sometimes they literally call it that, right? So sometimes they call it “protective segregation” or “protective custody segregation.” And then sometimes they’re allowed to have cellmates and sometimes they’re not. And so again, with county jail, we see a high level of segregation. In the prison context, it really depends and so it’s really related to classification numbers and points, and I’m sure a lot of your audience will know that as well. But trans people also get RVRs and get written up and accumulate points at much, much higher rates than other people.
They’ll get points for saying things like, no, my legal name is this, I changed my name, you have to call me by my legal name, or you have to use my right pronouns because that’s a rule. It’s also a rule under PREA, and they’ll get written up for telling the officer what the law is. And I’m sure this happens to people who are incarcerated all the time, but trans people, it seems like to me in California, are starting to accumulate points at incredibly high rates. And so we’re seeing trans people get 1-500 points in a year. We’re seeing people accumulate points very quickly for basic dignity things; Here’s my name, here are my pronouns.
So the prison in California at least, is not putting people in solitary confinement because they’re trans, but a large number of trans people are in extremely restrictive settings because of their points and because of their classification status. And some individuals are also in restrictive custody settings like solitary confinement because they’re trans. So that also happens but that’s not reflective of… There are 2,000 trans people in CDCR. They don’t lock those 2,000 people down because they’re trans but a lot of them are effectively locked down for lots of different reasons related to their trans identity.
Mansa Musa: Okay. And Lee?
Lee Romney: Yeah. So that’s right on point with… When I started looking into this, a lot of these nuances were new to me. And so that’s why it was, as we were hearing about them, it was really important that we focused on one person, mainly in our main piece. And then we did this other feature of voices of transgender prisoners, which makes it clear that what she, Syiaah Skylit, experienced is extremely common. And so some of the people who I spoke with over the past year did go to solitary confinement, which I know CDCR likes to say it’s not called that, but we call it that because they’re isolated, that’s what it is. Some of them went when they were assaulted, and then it was enemy concerns, so instead of the others going in, they went in.
And so that is, oh, hey, it’s for your own protection ’cause now you have enemy concerns and we can’t move you to this yard, we can’t move you to that yard, so you’re going to have to stay here. And then the RVRs complicate the issue because people are racking up a lot of RVRs for… Say somebody calls you horrible names and threatens you and another prisoner, another incarcerated person, and then you respond, well, you are more likely to get written up for that verbal response.
There’s one person who goes by Foxy who has been in solitary confinement for more than two years and has been write-up-free now for two years but is still in the PSU, the psychiatric shoe, all this time. And it all comes down to the first three weeks. So Foxy was assaulted, ended up in solitary, was told, well, you’re a man, so you could have hurt these other people, went in and then was taunted, and when she responded, she got sometimes three write-ups in a day. So the first three weeks racked up like 17 write-ups. It completely impacted her score. And even though she’s been write-up-free for all this time, has been isolated and has gone to mental health crisis beds multiple times as a result. We all know, your audience knows the impacts of solitary. That’s not news. It takes a huge toll. So we’ve seen that.
And then the other main thing that we saw involves consensual sex, consensual intimacy. So it’s really important for people who don’t spend a lot of time thinking about trans issues to know that gender identity is completely separate from sexuality or sexual orientation. And the law even says you can’t deny someone a transfer because of their sexual identity or their genitalia. And so a lot of the trans women who transferred into CCWF, have relationships with women. And so they come into a prison where relationships are extremely common. And so some of the things that were happening there is there were cisgender women who were afraid like, oh no, are these really men? Are they coming here to hurt us? Because staff and outside groups were repeating that for months before they even started arriving. They’re faking it. They’re coming there to hurt you. These were all these false narratives that were pumped up.
Meanwhile, there have been a lot of cisgender women who are really interested in, they’re interested in pairing up. And so like for anyone, they say, of course, sex is against the prison rules, but it’s always prevalent and it’s not equated with assault. It has nothing to do with that. And so at CCWF, we found a high number of people who might’ve been even getting close to another incarcerated woman who happened to be cisgender and immediately written up, even walking together on the track, maybe holding hands, things that people do all the time, immediately written up for behavior which could lead to illegal sexual acts. And then even though other, for the most part, cisgender women don’t tend to be put in solitary for that, but the trans women have been, so they, they’ve been put in solitary for that and often the partner hasn’t.
Mansa Musa: All right, let’s talk about this here. Okay, so Governor Gavin Newsom has signed the Transgender Respect Agency Dignity Act. Explain what that is, how it’s being used or implemented, and why. Tell our audience how this particular act is being used.
As I said before, I did four and a half years in super-max in the Maryland system. For the most part, they had a lot of transgender individuals, men or women, men specifically, housed in the super-max. But explain if this act that he put into effect, was designed to try to correct the injustice and try to give them some type of equity. Or is this fluff and lip service to the problem as opposed to correcting it? And you can go first, Lee, and then you, A.D.
Lee Romney: Okay. Well, the intentions were absolutely to try to address the underlying issues. And there was a lot of work, it was like three years of work that went into crafting this legislation, and it was very inclusive. There were high-level CDCR people who were absolutely involved and committed to making this work, making it a model, doing what aligns with what we understand in medicine, psychology, and society to be the best current understanding of what gender identity is. And the former Inspector General also did these extensive surveys with incarcerated people across the prison system to hear from them. There was a big coalition that A.D. is involved with now that became involved after that law was already on its way.
So there was really thorough input. And it does some really key things around… It mandates that staff use their chosen pronouns and [crosstalk 00:21:14]. So we know that some people, not all staff are the same obviously, some are trying but many are openly hostile and still not doing that. It also affects your search preference. So you can designate on a form what your search preference is. They still have it in a very gendered language like “male inmate search preference.” This is what they call it but essentially it lets you say, I am a woman and want to be searched as a woman. So you’re essentially allowed to choose the gender of the guards, your preference for the gender of the guards who search you.
And then the most important thing is housing. It doesn’t say they have to approve every single one. There are still mechanisms in there for CDCR to deny people’s requests to be housed in what they feel is a gender-affirming situation. But it says you can’t be denied because of your genitalia, you can’t be denied because of your sexual orientation. You can’t be denied for behavior that exists already at the facility where you’re going. So they can’t say like, oh, you’ve been getting in fights. Well, people get in fights who are cisgender at the facility. So they can’t deny you because of that. And they are supposed to designate if they refuse you, exactly why. So they haven’t been complying with that part of it.
So on paper, it actually looks pretty good. I’ll let A.D. talk about where things are falling through the cracks.
Mansa Musa: Okay. A.D.?
A.D. Lewis: Yeah. So where things are falling through the cracks, we already talked about this a little bit, which is that so many people have requested to be, again, rehoused under this law. They’ve asked for what’s called an “institutional classification committee review” which is the housing review committee in the state prisons here in California and people have been waiting for years. And part of the negotiation that happened with this bill is that this bill has no enforcement mechanism.
So it doesn’t say if this law’s broken, you can sue under this provision. It has no right to sue. This means a couple of things: One, it’s incredibly hard to grieve. And so when people grieve, oh, I’ve been denied. I haven’t been given an ICC committee meeting, there’s nothing to grieve because there’s been no action taken, right? So they’re denied on their grievance for that. If they try to go to court, they can bring a discretionary writ, called a writ of mandamus, but the court doesn’t have to look at those. And then even if they somehow managed to make it up to get an aggrieved appeal, which I’ve only seen a couple of people get an aggrieved appeal on this, they can ask for a discretionary review from this thing called the Departmental Review Board, which it’s unclear who even sits on this committee. I couldn’t get CDCR to even tell me who sits on the committee. But I’ve written them letters asking them to review people’s stuff, and they haven’t responded to me for over a year.
So again, people are falling through the cracks on very simple, in my opinion, basic due process things like, can I grieve that you didn’t give me a hearing? Can I grieve what you decided in the hearing? Can I go to court and make this law be enforced? The other tricky thing about the law, and this is really specific to California, is that it got passed as part of the penal code, as part of the rights of people who are in jails and prisons. So it’s in the section of the penal code that’s about the civil rights of people who are incarcerated.
However, the state prison system says, well, we only follow Title 15. We don’t follow the penal code here. The penal code doesn’t matter. So this was particularly chaptered and the penal code, which again is the rights of people who are incarcerated, including in CDCR, CDCR says, we don’t follow that law. We only follow Title 15. You can imagine the level of administrative confusion and burden that’s going on but also that makes it impossible for advocates like myself to meaningfully advocate for people because we try every single mechanism, but it’s all discretionary. And it seems to me like this is pretty clearly a massive administrative failure to actually implement the law.
Again, they’ve only looked at maybe 60 people and hundreds have requested to be reviewed. They’re also not following the rules around how they deny people and what they deny them for. And even when asked, why are you denying people? CDCR can’t tell attorneys or advocates why, they can’t even point to a reason. We’re really concerned about who’s getting denied, and the rates at which Black trans women in particular are getting denied or not even being reviewed. So yeah, there are a lot of concerns with it. It’s great on paper. It’s fantastic. I could not think of a stronger law that I’d want to get passed.
Mansa Musa: I want our audience to focus on this, that we’re talking about human beings. We’re talking about human beings. We’re talking about people who made a decision to identify themselves based on what they believe about themselves. If they were in society, they wouldn’t be subjected to this harsh treatment that they’re being subjected to in the prison system. But more importantly, I want our audience to understand that when you go to prison, the concept of prison is that you got crime and punishment; You commit a crime and you’re being punished. The punishment is the sentence that you receive. The punishment is not where you go and what goes on when you go into the system. But because I choose to identify myself as a man, but you identify me as a female, and then you tell me that I don’t have the right to have to be identified as such and be treated as such. But more importantly, you say, because I make this decision it gives you the right to mistreat me. And we need our audience to recognize, no, it doesn’t give you the right to mistreat anybody.
But talk about it as it relates to people who say that they believe that transgender prisoners receive preferential treatment and shouldn’t be treated any different than anyone else. When you got the naysayers saying, why would we give them preferential treatment? What do y’all say about that? Or this is preferential treatment that they received. What would y’all say about that?
Lee Romney: Okay. So the first thing I would say is when you look at the data, the statistics, and when you hear people’s actual stories about what they endure, and I’m going to focus on trans women who are housed in men’s facilities for starters, that’s where it’s most egregious. They are getting assaulted and they are getting raped by other prisoners and by guards at astronomically high rates.
So one study, it’s a little dated now, but it was a really thorough study that looked at California, and trans women in men’s facilities were 13 times more likely to be sexually assaulted. Everyone who I’ve spoken to endured hell in men’s prison, constant assaults. If you are trying to transition and you’re on hormones that causes some muscle weakness and that also sometimes means that you can’t protect yourself. So people end up effectively going back into their shell or really effectively almost like temporarily de-transitioning to try to stay safe. And then there are these cycles like that. And when you do that and you’re not able to express your true identity, that can really take a severe psychological toll.
Mansa Musa: Yeah, trauma, traumatic. Yeah.
Lee Romney: So people who are looking in a narrow way at preferential treatment, the biggest concerns that have been raised by naysayers, there’s a part of the law that says that you can ask to have a bed move if you don’t feel safe. And so that has generated some cries of, hey, that’s not fair. Why can’t we all do that? That was written into the bill because of the lack of safety and tolerance and all of that.
A.D., you can fill this in, but I, in my reporting, did not really see any examples other than, yes, that’s in the law, but trans women were still being denied access and entry to rooms by other incarcerated people in those rooms. See, the main prison where they send people from men’s facilities is CCWF, where they have dorm-style housing. So as many as eight to a room. And every single trans woman who I’ve spoken with said they were denied. People would say, no, we’re not taking you in this room. And so the notion that they’re getting some special right, it doesn’t hold up and is so profoundly negative. But A.D., you can probably fill that in.
Mansa Musa: A.D.?
A.D. Lewis: Yeah. So this idea that trans people get special rights is what a lot of people call them like, well, we’re all incarcerated. Why do these people have the choice of where to live? I don’t get to choose where I want to be housed. Why do these people get the choice of where they want to be housed? While it’s a good question, it’s an interesting question, it gets asked a lot, but what I always ask back is, do you think trans people are harmed in the same ways, at the same rate, as non-trans people? And so again, look at all the data. Trans people, especially trans women, are being sexually assaulted, physically assaulted, sexually trafficked, and coerced into all different stuff in prison. And of course, prison is violent and horrible for everyone who’s there.
People get coerced into all types of stuff all the time in prisons. And trans women have much, much, much higher rates of it. And so the importance of bills like this, the Transgender Respect Agency and Dignity Act, is that it gives trans people the choice of where do I think I might be more safe. And it’s not necessarily… If anyone knows women and women’s prisons, people know that women’s prisons are full of people who are also not particularly nice. The politics there are like other politics. Women’s prisons have not been better for trans women in some ways. But again, it’s this idea that I get that the type of violence or the type of experience that I’m having in a men’s prison is subjecting me to a unique and sexualized and gendered form of violence that is deadly to trans women.
I’ve had a number of trans clients who have been murdered, and who have died in men’s facilities either as a result of unknown causes or as homicides. Some people think this is an issue of special rights. I literally see it and have experienced it from my clients as a site of literal life and death, where if trans women were in a gender congregate facility or had the option to do that, that it would’ve kept them safer, not that it would’ve made their life great or easy. Women’s facilities also have politics. It’s really complex there too. The same thing for trans guys. Trans guys aren’t particularly well-loved or well-liked at women’s facilities either. They’re really experiencing some intense discrimination and a lot of gender policing, et cetera, from guards and other incarcerated folks alike. And from the trans men I’ve talked to who are at men’s facilities, they’re liking their time more than they were at the women’s facilities. So again, I don’t think there are special rights. It’s reflective of these sex-segregated spaces, and that when people step outside of certain types of gender norms, they’re really, really harshly targeted.
This law is giving people the option to be housed in a setting that may be safer for them. And I call it gender congruent, which is the PC way to call it, but I honestly think about it in terms of safety. Where do people think they’ll be safest? And this law gives them the choice to make a decision about their own safety because the prisons can’t ever provide them with any safety, really. But the point about the conditions that are not being the punishment, this is the exact thing that the Supreme Court said in this case called Farmer v. Brennan, which is about an incarcerated trans woman who was sexually assaulted. And the Supreme Court said sexual violence and rape is not part of the penalty. And that’s actually trans people getting sexually harmed inside is the reason why a lot of Eighth Amendment case laws exist.
Mansa Musa: As we wrap up, Lee, how do our audience get in touch with you or stay in touch with what’s going on with you? And then you A.D.
Lee Romney: Okay, great. Yeah. Well, probably the best way for me is my email. I’m independent now, so it’s my full name, leoraromney@gmail.com, which is L-E-O-R-A R-O-M-N-E-Y@gmail.com. I’m open to hearing from anyone and everyone.
Mansa Musa: Okay. And A.D.?
A.D. Lewis: You can write our office. It’s Prison Law Office, General Delivery, San Quentin, California 94964. And you can write to me, A.D. Lewis, or you can email me at adlewis@prisonlaw.com.
Mansa Musa: All right. Thank y’all for coming. Y’all really rattled the bars today. We want our audience to know that we’re talking about human beings. We’re not talking about people that are looking for preferential treatment. We’re talking about people that were sentenced to a crime. The punishment was the sentence that they got, and the only thing they wanted was to be able to be treated like human beings, not because of their sexual identity or how they choose to identify themselves, that they should be subjected to being abused, misused, or treated as anything other than human beings.
Thank you very much for coming and joining us today, Lee and A.D. And we ask that you continue, our audience, to support Rattling The Bars and The Real News, because guess what? We are actually the real news. Thank you.
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