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Biden Administration May Be Providing Protections for Transgender Inmates Reversed by Trump

The Justice Department is now reviewing its policies on housing transgender inmates in the federal prison system

The Justice Department is now reviewing its policies on housing transgender inmates in the federal prison system. According to the Associated Press, this decision came after protections for transgender prisoners were reversed during the Trump administration.

The federal Bureau of Prisons’ policies for transgender inmates came into the spotlight this past week when a transgender leader of an Illinois anti-government militia group, Emily Claire Hari, was sentenced to 53 years in prison after her role in the 2017 Minnesota mosque bombing. The 2017 attack was on the Dar al-Farooq Islamic Center in Bloomington, Minnesota.

The Transgender Executive Council within the Bureau of Prisons (BOP) will now decide where to house her in the federal prison system.

What Will the Biden Administration Do About This Issue?

A Department of Justice (DOJ) spokesperson spoke to Axios and said that the Biden administration “is committed to providing all inmates a safe and humane environment, including providing gender-affirming housing where appropriate.”

This spokesperson also stated that the current version of the BOP’s trans housing policy “was developed in order to meet the community standard of medical and mental health care, appropriately manage and support the offenders, and meet legal requirements as determined by case law, statutes and federal regulations.” However, they also said that the guidelines are now under review. They also did not mention a timeline when these possible revisions might be announced.

The Biden administration’s Transgender Executive Council has a team of 10 people, including psychologists and counselors, psychiatrists, and prison designation experts. This team helps decide placements for transgender inmates. The council will consider various factors like an inmate’s health, safety, history of disciplinary action, staffing in prisons, supports they may require, and security level.

What Happened to This Policy?

The Obama administration allowed the BOP to house inmates according to their gender identity “when appropriate,” However, President Donald Trump reversed that decision when he took office. In 2018, the Trump Administration said inmates would be housed according to their “biological sex.” In addition, transgender people would be put into gender-affirming facilities “only in rare cases.”

Hari’s Case 

Biden’s Transgender Executive Council is deciding quickly on the many aspects of Hari’s case. First, however, she must be transferred into the federal system in the next few days.

Hari requested to be placed in a women’s facility and provided with hormone replacement therapy (HRT). These requests were cited according to court documents. In these documents, she said that her dysphoria was “unbearable,” creating “inner conflict” at the time of the bombing. Prosecutors at the time decided it was just an “offensive” tactic to “use gender dysphoria to deflect from the attack.”

Other Instances

Even after Hari’s sentencing is resolved, the way her case was handled will have lasting effects for the nearly one in six trans Americans who have served time in prison. These include half of all Black trans people, like Ashley Diamond, a trans woman incarcerated in a men’s prison. She is now suing the Georgia Department of Corrections (GDOC) for the abuse she experienced during her time in prison. She was sexually assaulted more than ten times during her time in prison and was also denied hormone therapy.

The Department of Justice (DOJ) filed a statement of interest in her case, mentioning that further changes to federal policy about trans inmates could be coming. 

Diamond wrote in a May op-ed for them:

“I’m stuck in the same dorm where I’ve been assaulted 10 times already. Officials with the prison said they wouldn’t put me in a women’s facility because they essentially have a blanket ban on housing trans women in women’s prisons. They are refusing to do what they need to in order to keep me safe.”

Although the federal policy is way behind, California recently passed a landmark bill that will provide trans inmates with the right to choose which gendered facility they want to be placed. Since April, hundreds of inmates had put in a transfer request to another gendered facility. 

Safety Issues for Transgender Inmates 

Safety for transgender prisoners is paramount. According to a University of California at Irvine study in 2007, sexual assault rates against trans inmates were 13 times higher than other inmates in California prisons.

In Georgia, the DOJ has launched an investigation into the allegedly horrific conditions in state prisons, including an ongoing investigation into anti-LGBTQ+ sexual violence that prisoners and staff have committed. These include 44 murders, inhumane living conditions, smuggled weapons, and gang activity. This week, U.S. Assistant Attorney General Kristen Clarke claimed that the DOJ found “significant justification” to investigate Georgia’s prison system.

The DOJ also just investigated the state of Alabama and New Jersey over similar occurrences. New Jersey has come to an agreement with the DOJ, while Alabama was sued the previous year. 

The investigation into Georgia prisons was opened a year after Ashley Diamond filed her federal lawsuit against the state’s prison system.

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Billie Olsen

AUTHOR: Billie Olsen

Billie Olsen (she/they) is a lifestyle writer, disability justice advocate, and cozy femme located in Kelowna, BC, Canada. Their works have appeared in Metro News, Discorder, Sophomore Magazine, the Post-Feminist Post, DINE Magazine, and NerdReader.