Image: Left-to-right. Attorney General Jeff Sessions, male-to-female Donna (Peter) Langan and Lindsay Saunders-Velez.

By Stefan M. Kløvning

Washington, Justice System – As one of the last policy decisions of former President Barack Obama, male prisoners were permitted to move to women’s prisons if they claimed to sexually identify as a female from January 17, 2017. This decision has been overturned in a recent revision of the legislation by the U.S. Department of Justice, called the Transgender Offender Manual. The revision paper, which builds on the earlier version and highlights the edits, can be read here.

The decision that transgenders were allowed to change prison on grounds of sexual identification wasn’t the only – or primary – matter of the legislation, but it still had important implications. The specific wording was ‘[t]he TEC will recommend housing by gender identity when appropriate,’ and was replaced by a list of bullet points of factors important to consider when determining the housing of inmates. The main change was biological sex now being determined as the main factor in the placement of prisoner, though other factors would also be considered, such as the health and safety of the individual and his/her adequacy for the specific housing.

Obama got a round of backlash from critics after implementing the new legislation, primarily for giving men with criminal background the ability to transfer to women prisons just because he suddenly claims to ‘feel’ to be of the opposite gender. Though the probability of males faking it only to get into the female’s prisons is debatable, the possibility highlights a risk factor for the female prison population. In other words, as many people who claim to sexually identify as the other gender hasn’t undergone genetically cosmetic surgery, those with a criminal background who transfers could be prone to sexually assault the female prisoners there. As there unfortunately is a plethora of rape cases in all-male prisons, the danger could be even worse when among those of the opposite sex. Another argument is that it could pressure biological women who sexually identify as men to transfer to men’s prisons, which would pose an even bigger danger on them.

In the few months of experience with this legislation, what empirical evidence have we gathered to test the validity of these arguments? According to DallasNews, there are 473 federal inmates in the U.S. who are transgender. The small quantity makes the probability of such cases being actualized rather small, but still there have been instances both talking in favor and against the DoJ’s decision to alter the legislation.

Many women prisoners seems to have a problem with male-to-female prisoners transferring to their prison. Three women in FMS Carswell, for instance, demanded the Bureau of Prisons to remove all transgender inmates from the facility. Plaintiff Rhonda Flemming, who once went on a hunger strike for the facility to remove the transgenders inmates there for ‘political reasons’, claimed that ‘My bodily rights are being violated by the Defendants housing men in the prison. I am being humiliated and degraded every day so that men that identify as women can be comfortable.’ Later in 2017 she reasoned further that she doesn’t hate transgender people, but only that she has a ‘preference for the safety of women in prison.’

A different case, however, shows another side of the story. Twenty-year-old male-to-female transgender Lindsay Saunders-Velez was raped after being housed in a ‘disciplinary pod occupied by men who had previously prepositioned her or threatened to rape her,’ the Denver Post reports. This happened hours after a federal judge failed denied her request to stop the Calorado prison from housing her there. Saunders-Velez’ attorney, Paula Griesen, was furious, exclaiming that ‘they threw a 20-year-old kid in the shark tank knowing what would happen. This is outrageous.’

With these different stories highlighted, we get a perspective of how difficult the situation regarding transgender inmates can be. Should Saunders-Velez have been allowed to transfer to an all-female prison? Some would advocate that, but a better question is perhaps whether the changes made by AG Sessions’ D.o.J. will make such occurrences more common. If the bullet points are followed accurately, it’s more likely that it wouldn’t. The second point states explicitly that ‘The TEC will consider the health and safety of the transgender inmate, exploring appropriate options available to assist with mitigating risk to the transgender offender, to include but not limited to cell and/or unit assignments, application of management variables, programming missions of the facility, etc.’ The federal judge who denied her request not to be thrown into the ‘shark tank’ didn’t seem to consider her health and safety when making the decision, but would likely (and hopefully) have made a different decision if he did.