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"Conservative New York County Enacts Progressive Transgender Prisoner Policy"

The New York Sheriffs’ Association consulted on the new policy. Most notably, it provides that trans women must presumptively be housed in the women’s unit unless there is a specific, individual security risk. Even then, the prisoner must be notified of the reason and given the opportunity to appeal the decision.

“We know that it is a workable policy that can easily be implemented in any county in New York state and throughout the nation,” said David Brown, legal director of the Transgender Legal Defense and Education Fund (TLDEF), which partnered with the New York Civil Liberties Union Foundation to secure the settlement.

With a total population under 100,000, Steuben County has no elected representatives to the state Assembly who aren’t Republican, and the county hasn’t voted for a Democrat for president since Lyndon B. Johnson won in 1964. Then came Jena Faith.

The 43-year-old military veteran had begun gender dysphoria treatment in 2012 and started hormone replacement therapy the following year. In 2014, she underwent an orchiectomy — the removal of testicles — and legally changed her name to Jena.

After each of her first two arrests in late 2017, Faith spent two or three days in SCJ, housed with other women without incident. Like other women, she was assigned to a single cell and showered in an individual stall with doors that prevented anyone else from seeing her.

Then she was booked into SCJ again on April 28, 2018, for allegedly using counterfeit money to buy pizza, beer, and chicken wings. Faith’s request for housing with women was initially granted, and no one expressed discomfort with her presence or reported any inappropriate conduct.

But after three days, the jail’s physician, Dr. Bruce Mackellar, transferred Faith to a men’s unit. He claimed that unnamed women had reported to staff — who were also unidentified — that Faith had watched them shower. He also claimed that SCJ had video evidence of this, which he threatened to publicly release if Faith ever sued for discrimination. As for her medical treatments for gender transition, Dr. Mackellar said that her “orchiectomy had removed her testicles but not her penis,” according to court filings. Faith was not allowed to appeal or file a grievance against the decision.

After a short stay in a single cell in the men’s medical unit, she was moved to the general population of a men’s unit, where a 6 foot, 6 inch registered sex offender began harassing, touching and sexually propositioning her. He sent her disturbing love letters that she gave to guards. They responded by transferring her to the general population of another men’s unit, where a violent gang member subjected her to verbal abuse and harassment openly in front of guards, who did nothing. Soon, a group of four guards also began referring to Faith as male and emphasizing the use of male pronouns.

Faith hid in her cell, leaving only for showers and meals. SCJ medical staff refused to administer her scheduled estrogen injections for the remainder of her stay in the jail until she was finally released on May 25, 2018.

Represented by a team of eight lawyers, Faith brought suit in state court on August 22, 2019, alleging that Steuben County Sheriff James Allard, SJC and its superintendent, Major Matthew Whitmore, as well as Dr. Mackellar and five other “Doe” defendants had all violated New York’s Human Rights and Civil Rights laws, provided negligent training and supervision and denied her due process and equal protection of the law.

“I felt that I should have been respected as being a woman,” Faith said referencing a New York law that protects non-incarcerated transgender people. “They can’t discriminate against you, but when you’re in jail they can do whatever they want, and I thought that was wrong.”

The case was quickly settled, with defendants agreeing to pay damages and implement the new policy for transgender SCJ prisoners, other key provisions of which provide that:

• transgender people have access to transition-related medical care, such as hormone therapy, while in custody;

• employees can be disciplined and even terminated or referred for criminal prosecution for substantiated claims of misconduct against transgender prisoners;

• searches must be conducted by staff of the same gender as the trans person’s gender identity; and

• transgender prisoners must be given access to clothing, toiletries and grooming standards consistent with their gender identity.

“Safety risk due to a person’s sexual orientation, or gender identity or expression are not a normal or acceptable part of their time in custody, and will not be tolerated,” the policy declares.

This is especially important for transgender people, who are over nine times more likely than the general population to be sexually assaulted by other prisoners, according to a report by the National Center for Transgender Equality.

Trans women also are nine times more likely than other prisoners to be victims of sexual harassment or assault, according to the federal Department of Justice’s Bureau of Justice Statistics. The federal Prison Rape Elimination Act (PREA) also identifies transgender inmates as being at “risk of victimization and abusiveness.”

This high risk is exacerbated by the disproportionately high transgender incarceration rate. According to a joint study by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, 21 percent of all trans women have been incarcerated during their lives, compared with a 5 percent incarceration rate among the general population. The number jumps to 47 percent for Black trans women.

“I’m just tired of the mistreatment and they need to know that it stops now,” declared Faith when asked how she felt about the settlement. “No more hatred against the community.” See: Faith v. Steuben County, State of NY SCt No. E2019-1208CV (NY SCt, County of Steuben, 7/22/2020). 


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Related legal case

Faith v. Steuben County, State of NY