A Remedy for Male-to-Female Transgender Inmates: Applying Disparate Impact to Prison Placement

I. INTRODUCTIONOne afternoon, two guards and a sergeant entered the unit . . . . They put me in leg chains and chained my wrist to my waist. The three escorted me to a hospital bed within the infirmary . . . . I was then chained to the bed and my one-piece overalls were taken down. I was held down by the sergeant and one guard, while the other guard raped me. The men taunted, 'So you want to be a woman,' and 'we'll show you how to be a 1 woman.'This is just one account of a transgender woman being singled out for sexual violence solely because she identifies as a woman.2 A pre-operative transgender woman is a person who was born a man and still has male genitalia, but understands herself to be a woman.3 In an environment already wrought with sexual abuse and violence, transgender women are especially vulnerable to sexual harassment and assault.4 In prisons, transgender female inmates become easy targets of sexual violence both because of animosity toward the expression of their gender identity, and because many have slight and effeminate builds.5 While not all of these rapes are perpetrated by correctional staff, rape is frequently used as a form of abuse by correctional officers and is at least tolerated by prison officials who dislike transgender individuals.6This Comment argues that the current prevailing policy of placing preoperative transgender women in male prisons creates an unequal risk of prison sexual assault.7 Part II explains the role transgender rape had on shaping the Prison Rape Elimination Act.8 Part III argues that the deliberate indifference standard is currently the only remedy for transgender female inmates who are sexually assaulted, and the standard is too difficult to meet.9 This section explains the difference between disparate treatment and disparate impact.10 It further contends that disparate impact can be used by transgender female inmates only after they have been assaulted, since they must show evidence that they were singled out.11 Part IV suggests that all states should determine transgender inmate placement by using the council process and the Prison Rape Elimination Council recommendations in order to keep prison officials accountable and to protect transgender inmates.12II. BACKGROUNDA. The Prison Rape Elimination ActCongress passed the Prison Rape Elimination Act (PREA) in 2003, recognizing the prevalence of sexual assaults in prison.13 The Act created the National Prison Rape Elimination Commission (NPREC), which was charged with conducting a comprehensive study on the prison rape problem and providing recommendations.14 In 2009, the NPREC released its report, which focused on the need for better intake screening for groups more vulnerable to sexual abuse, noting that male-to-female transgender individuals have a higher risk.15 The report goes on to discuss the amount of involvement and/or participation of prison officials in transgender sexual harassment and assaults, why they participate, and the effects of their involvement.16 The NPREC recommended that prisons not rely on isolated custody to protect at-risk inmates and discouraged housing at-risk groups in segregated units.17 In 2012, after consideration of the NPREC report, the Department of Justice (DOJ) released the first-ever federal rule setting national standards for preventing rape in correctional facilities.18 The new rule requires all correctional facilities that receive federal funding to screen LGBTI inmates to determine where they should be placed.19 The rule prohibits placing these inmates in separate facilities designated by their sexual orientation, unless the facility was established pursuant to a consent decree, legal judgment, or the inmates consented.20 The rule does not allow transgender inmate placement solely on the basis of genitalia.21 The rule further instructs intake officials to consider the following factors when determining placement: (1) health and safety of the inmate; (2) potential security issues; and (3) consideration of the inmate's views regarding their safety. …