Being assigned to an all-male prison was traumatic enough. But a transgender woman incarcerated at MCI-Norfolk says she has been subjected to groping and taunting by male prisoners and correctional officers who routinely harass her because she identifies as a woman.
Now, the 52-year-old prisoner, who has lived as a woman and received hormone therapy for nearly 40 years, is suing the Massachusetts Department of Correction in a bid to force the department to move her to the state women’s prison, MCI-Framingham.
If successful, the lawsuit, filed Wednesday in US District Court in Boston, could make her the first transgender woman to be housed with other women prisoners in Massachusetts, said Jennifer L. Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders.
Massachusetts, like most states, typically assigns inmates to prisons based on their anatomy, not their gender identity.
The lawsuit asks prison officials to treat transgender women like any other woman. That means addressing the prisoner by her female name and relocating her to MCI-Framingham so she will not be strip-searched by men and physically exposed to men on a regular basis.
The case is part of a growing national movement by advocates for transgender prisoners. In recent years, prisons across the country, pressured by lawsuits, have agreed to provide hormone therapy and other medical treatments, and are weighing whether to accommodate prisoners who want to buy makeup at the commissary or wear long hair.
“It’s the next thing coming down the line in the evolution of how we think about transgender people locked up and their options,” said Valerie Jenness, a University of California sociologist who has done extensive research on transgender prisoners. “Historically, prisons have used a genital basis to determine housing and now there’s starting to be a discussion of [if there] could there be alternative ways of doing this.”
The prisoner who filed the lawsuit is serving a three-to-four-year sentence for a nonviolent drug offense and told officials she was a woman when she reported to prison in October 2016. Prison officials told her she could not be moved to MCI-Framingham until she had genital surgery, the suit says.
As a result, the lawsuit says, she has been forced to live, sleep, shower, and use the bathroom with male inmates at MCI-Norfolk, where male correctional officers strip-search her and refer to her and other transgender prisoners as “wannabe women.”
“In 2017, it is a total shame that this state — with so much broader policy recognizing the humanity of transgender people — doesn’t recognize that humanity in our correction system,” Levi said. “They’re serving time for underlying offenses, but they’re not supposed to be punished for being transgender. That’s wrong.”
The correction department declined to comment on the lawsuit.
The lawsuit claims the department is discriminating against the prisoner because she is transgender, in violation of her constitutional right to equal protection. The suit also accuses prison officials of violating the Americans with Disabilities Act by refusing to move her to a women’s prison, which is a necessary part of her treatment plan for gender dysphoria, a diagnosis that describes the disconnect between one’s sex at birth and one’s gender identity.
The prisoner is identified in court papers only as Jane Doe to protect her from further harm, Levi said. Although she is incarcerated for a drug crime, the Sex Offender Registry Board lists her as a Level 3 offender with two convictions — in 1992 and 1995 — for indecent assault and battery on a person over age 14.
Levi said the 1992 case stems from when the inmate was a prostitute who unwittingly touched the genitals of an undercover male police officer. She said the 1995 case was also related to prostitution and was dismissed and should not be listed on her record. Levi said the inmate has no criminal history that reflects any dangerousness.
In prison, the lawsuit says, the inmate has been subjected to constant humiliation. When she was strip-searched during a five-day lockdown in June, the lawsuit says, male guards forced her to stand, cuffed and naked for 30 minutes, in front of the open door to her cell, exposing her body to at least a dozen male prisoners who gawked and made crude sexual remarks about her breasts.
When the inmate showers, the lawsuit says, male prisoners crowd into the bathroom to watch, making her terrified of being attacked.
Transgender prisoners are highly vulnerable to sexual assault, federal data show. A survey conducted in 2011 and 2012 by the Bureau of Justice Statistics found that about 30 percent of transgender prisoners reported being sexually victimized by other inmates or guards — 10 times the rate for the general prison population.
The survey estimated there are 3,200 transgender inmates in state and federal prisons and 1,700 in local jails. In Massachusetts, 36 prisoners have been diagnosed with gender dysphoria.
The guidelines for federal prisons state that transgender prisoners cannot be housed based on their anatomy alone but must be evaluated on a case-by-case basis, and prison officials must give “serious consideration” to where inmates believe they will be safest. But advocates say that most state and local prisons have not adopted those rules and that transgender people are almost always placed in prisons according to their genitals.
Jenness said when she interviewed 300 transgender women serving time in all-male California prisons, she was surprised to find the majority wanted to remain in male prisons. Some were just more familiar with the setting, she said, while others liked being with men for romance, companionship, and protection.
Advocates say that even though Massachusetts has enacted laws that ban discrimination against transgender people in employment and in public places such as restaurants and museums, other states have done more to extend those rights to transgender prisoners.
In 2009, the District of Columbia set up a committee of prison and medical officials to determine the proper placement for transgender inmates within 72 hours of intake. In 2014, New York opened a unit for transgender women at Rikers Island. The following year, Pennsylvania changed its housing policy to give “serious consideration” to transgender prisoners’ concerns about safety and issued a commissary list that allows transgender women to buy women’s underwear and makeup.
Michael Levenson can be reached at firstname.lastname@example.org.