Proposed protections for transgender and intersex federal inmates are poised to be a sticking point in congressional negotiations to reauthorize the Violence Against Women Act, which lapsed in mid-February.
The addition, which would codify existing federal regulations, directs the Bureau of Prisons to “consider on a case-by-case basis whether a placement would ensure the prisoner’s health and safety.” Some advocates told National Journal that the change could mitigate Trump administration actions that, they argue, undermine protections for transgender prisoners.
VAWA supports criminal justice and community-based responses to sexual assault and domestic violence through grants. While the money has been appropriated for fiscal 2019, the law has yet to be reauthorized. The last time VAWA was reauthorized in 2013, protections for LGBT individuals were added so they were guaranteed access to the services that assist victims of violence and assault.
The new iteration of VAWA, which House Democrats unveiled last week and want to put to a vote in the first week of April, includes the additional requirement for the Bureau of Prisons and directs them to consider the “prisoner’s own views with respect to their safety.”
“Transgender people in prison are exposed to horrific rates of abuse by both staff and their fellow inmates, facing physical and sexual assault at much higher rates than their counterparts,” said House Judiciary Committee Chairman Jerrold Nadler during the committee’s markup of the bill Wednesday.
The 2015 U.S. Transgender Survey found that transgender inmates were five times more likely to be sexually assaulted by staff and over nine times more likely to be sexually assaulted by inmates.
But some Republican members have put gender-identity-based protections included in VAWA in the crosshairs. In February, Senate Republicans pressed for a clean reauthorization of the bill until the end of the fiscal year, temporarily removing the potential to add this or any other changes to the bill. Sen. Joni Ernst is working with Sen. Dianne Feinstein on reauthorization of the bill.
Rep. Louie Gohmert, a member of the House Judiciary Committee, offered an amendment to the VAWA-reauthorization bill that would “remove the gender-identity language from the bill,” he said during the committee markup. The amendment would have also struck the directive to the Bureau of Prisons and instead of considering the prisoner’s own views of their safety, the language would have considered “the health and safety of the other prisoners at the facility.”
Additionally, the sex of a transgender prisoner would not have been determined by the “sex with which they identify,” but by the “prisoner’s biological sex.”
Nadler argued that the proposed provision in the bill would just codify existing federal regulations, but that Gohmert’s amendment would prevent that and undo the regulatory protections. “There’s no good reason to roll back protections that have been afforded for many years to transgender federal inmates,” he said.
Experts and advocates said the proposed protection in VAWA would put into statute federal regulations that were released in 2012 under the Prison Rape Elimination Act. Putting these regulations into law would place “one clear set of standards at least—at the federal level, at least for the Bureau of Prisons—and it would help hopefully kind of set a standard for the country,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality.
Other advocates said putting this into statute would reinforce the standard and put it out of reach of the Trump administration, which has taken action to roll back Obama-era policies when it comes to the placement of inmates. In the Transgender Offender Manual, the administration changed the guidance last year so that it would consider the “biological sex” of an inmate as the initial determination for housing the prisoner.
“The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases,” stated the new guide.
Chase Strangio, staff attorney with the American Civil Liberties Union’s LGBT & HIV Project, said, “having something explicit like this in statute makes it even harder for the Trump administration to disregard.”
But he added that lawmakers would have to add enforcement tools to ensure these standards are being followed. “Technically the [PREA] regulations bar the directive that the Trump administration came out with for placement in the BOP, so it’s not like it was effective in stopping that,” he said. “So sure, a statute would be another way to offer that protection, a way that technically the administration couldn’t just undo through the executive, but we’re seeing all sorts of ways that these standards are ignored.”
Rep. Sheila Jackson Lee, who has been instrumental in the new reauthorization effort, said including the standard in VAWA is “just a simple process of protecting a human being who is vulnerable.”
“We realize prison is a very difficult place; it’s a difficult place for men, it’s a difficult place for women,” she told National Journal. “This is a very unique population and the VAWA bill is about protecting people. It is gender-neutral now in the 2019 bill; we’re proud of that. We had testimony just last week when one of our witnesses, a judge, indicated that when they have people come before them that have been abused who happen to be in the LGBTQ community, there’s no one there trying to act like they’re utilizing protections that do not adhere to them.”