The new law allows such prisoners in California to request housing in conformance with their gender identity. But in other state systems, the battle rages on, usually in skirmishes over whether a trans prisoner has had gender-conforming surgery, which most cannot afford anyway. So in states like Texas, all trans men are incarcerated with cisgender women, and all trans women with cisgender men.
A February 2020 investigation by NBC News estimated that nearly 5,000 trans prisoners were being held in prisons across the U.S. But it could confirm just 15 who were housed in conformance with their gender identity — 13 trans women held with female prisoners and two trans men held with male prisoners. In the Texas Department of Criminal Justice (TDCJ), all 891 trans women are held with male prisoners, and all 89 trans men are held with female prisoners.
The problem, advocates say, is not with the law but with its lack of teeth. Since PREA was implemented in 2012, it has required prison systems to house trans prisoners where they will feel safest. But the law also leaves prison officials broad discretion in implementing this requirement.
California’s new law, signed in December 2020 by Governor Gavin Newsom, is the culmination of a years-long effort by its sponsor in the state General Assembly, Democratic state Senator Scott Weiner. Known as the Transgender Respect, Agency and Dignity Act, it not only promises trans prisoners a choice in where they are housed, it also requires CDCR staff to record and use their preferred pronouns and honorifics.
But the issue goes beyond respect — it cuts to the heart of prisoner safety. In Texas, for example, though TDCJ forces its prisoners to view a PREA video and encourages them to submit anonymous reports of PREA violations, the results can work against trans prisoners, who are often locked in administrative segregation — “ad seg” — for their protection while their abusers are free to roam the general population and victimize others. In some cases, false PREA reports have been anonymously filed by prisoners to get enemies locked up in ad seg, costing them jobs, housing assignments, craft shop and college class attendance.
“This makes me wonder who is PREA serving,” said Mateo De La Torre, of LGBTQ prison rights organization Black and Pink, “and who is being held accountable.”
Protests against housing trans prisoners in accordance with their gender identity often include concerns about forcing cisgender women to shower with trans women. But PREA actually requires that trans prisoners be allowed to shower alone — for their own protection.
As detailed in an August 2020 Truthout report, trans women prisoners are “more likely to be sexually assaulted than cisgender men” by prisoners as well as prison staff — in the case of Black trans women, “13 times more likely.” Fifty percent of those surveyed also responded “fearing for their safety if they report harassment, discrimination or violence.”
For Carmen Guerrero, a 48-year-old trans woman sentenced to CDCR’s Kern Valley State Prison after the 1995 murder of her 38-year-old lover, Mary Perkins, the protection provided by California’s new law didn’t arrive soon enough. In 2013, she was tortured and murdered by her cisgender male cellmate, Miguel Crespo, who had promised staff he would kill her if they forced him to share her cell. He was sentenced to death for the crime in 2019.
Syiaah Skylit, 30, a Black trans woman assigned to Kern Valley in May 2019, witnessed prisoner David Brieby attack another trans woman prisoner and testified at his trial for attempted murder. Just 11 months later, after a trip to ad seg, Skylit was assigned to the same housing area as Brieby. He assaulted her on April 10, 2020.
After she filed a PREA complaint, on April 15, 2020, Skylit was attacked by another prisoner and then sexually assaulted with a baton by a guard. She filed a PREA complaint against the corrections officer, too. Like Smith, she was not offered a victim advocate or support person. As of August 6, 2020, she had not received any documentation related to the investigation. She told her lawyers, “I’m not going to make it out of this prison alive if I’m left here any longer.”
Despite the PREA prohibition against trans and cisgender prisoners showering together, San Quentin Prison officials made prisoner C. Jay Smith, a Black trans woman, suffer leers, jeers and stalking from cisgender men she was forced to shower with. Smith was raped in 2013 but was not able to see her assailant. In 2018, a prisoner exposed himself to her while housed in an adjacent cell, and she recognized him by his genitalia. Smith’s requests to staff to move one or the other of them were refused.
After filing a formal PREA complaint on March 16, 2019, Smith — like Skylit — was retaliated against by prison staff with assaults, harassment and false disciplinary charges. One of those escalated to a criminal case that was later dismissed. Smith was then transferred to another facility, where she is housed with women, but where she does not have the rehabilitative and parole-oriented programming available to her before.
Despite these outrages, Wiener says he was the one subjected to death threats for the bill he sponsored to help trans prisoners. Some came from adherents of the QAnon conspiracy theory, along with accusations that he was promoting pedophilia. But similar charges came from other public officials, including fellow state Senator Melissa Melendez, a Republican, who tweeted after former Governor Jerry Brown signed a state law protecting trans students in 2013, “Say goodbye to your daughters’ innocence and privacy.”
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