When you ask average Americans what they feel are the most important amendments, you will probably receive the same responses. Freedom of speech, due process and protection from illegal searches are usually the first mentioned since we see issues regarding these amendments every day. The 8th amendment, which protects against cruel and unusual punishments, is hardly a breaking news topic nowadays. Occasionally, you will hear of prison officials abusing powers and wielding excessive force, but for the most part this amendment is well-enforced in modern society and law.
That being said, I was surprised to learn of the conditions that the transgender population of prison inmates must survive every day. Transgender inmates are forced to give up more rights and are placed in harsher conditions in prison than other inmates in order to protect themselves from physical, mental, and sexual violence. Not only are these conditions a violation of the 8th amendment, but they reveal a deep dilemma within the United States criminal justice system.
I was drawn to this topic after I watched a documentary titled “Cruel and Unusual,” following the lives of five transgender women who had been incarcerated in men’s state prisons. I had never given this topic much thought before, and probably few people have. Yet it really got me thinking about the predicament that these individuals faced. I decided to investigate more and was shocked to learn the harsh reality of an outdated prison policy.
When an inmate is detained, they are sentenced to gender-specific prisons based on the individual’s gender at birth or genitalia, not by the individual’s gender identity. This especially causes problems because many transgender inmates are pre-op when incarcerated. This means thousands of inmates in the United States who are mentally and sometimes physically female are placed into male prisons.
The prison system itself is already flawed with violence, sexual assault, rape and murder. It is estimated that one in four men are raped in prison, so it is not hard to imagine the hardships faced when bearing the physical and mental likeness of a women in a man’s prison. The presence of transgender men in women’s prisons also raises concerns over safety and prisoner welfare, but the risk of placing a transgender woman into a man’s prison is much greater and much more apparent.
The inmates in the documentary told countless stories of mental, physical and sexual abuse by fellow inmates and guards alike. In order to protect themselves against liability, many state prisons have opted to place transgender inmates in solitary confinement in order to protect them from inmate violence. This is a quick fix at best and leads to more issues regarding prisoner rights. Is locking these individuals up 23 hours a day in the best interest of the prisoner?
The effects of solitary confinement are quite damaging, as it was created as a punishment for the worst offenders. A judge ruled in 1989 that “isolating a human being from other human beings year after year, or even month after month, can cause substantial psychological damage.” It is a punishment on top of a punishment and in most cases does not fit the crime for most transgender female inmates. Taking into account the psychological effects, one must question the effectiveness and rationale of placing these inmates into solitary confinement. Yes, it physically protects the prisoner and protects state prisons from liability, but can this be classified as cruel and unusual punishment?
Another factor to consider is that many transgender women are denied the necessary hormone treatments to continue sexual reassignment. The U.S. Bureau of Prisons has a policy of providing hormone treatment to inmates at pre-incarceration levels, but it is never guaranteed that it will be administered effectively or at the correct levels. U.S. prisons have a responsibility to provide treatment for medically recognized illnesses and diseases, but Gender Identity Disorder is classified as a mental health disorder, and hormone treatment is not recognized as a medical necessity. Most people do not understand the damaging effects of being taken off hormone treatment. Again, is this cruel and excessive?
So what can we do to guarantee the safety of this prison population? There could be a separate federal facility to house transgender inmates. But this raises questions of state jurisdiction and whether transgender individuals, who are classified as suffering from a mental health disorder, should be allowed to receive an opportunity like this. After all, the prisoners, despite their circumstances, have committed a crime against society. Some might argue that they are sent to prison to be punished, and that a special, separate facility would be more of a luxury than a punishment. Also, in most states transgender individuals face no protection from discrimination in housing or work. Could going to jail be seen as a suitable alternative to finding housing and work and therefore lead to a rise in crime?
Should transgender prisoners be given hormone treatment? It is not a medical necessity and the prisoner can live an able life without it. Is it fair to give this population of prisoners special treatment compared to other inmates who are suffering from other classified mental health disorders?
There is one important consideration in developing more fair and effective treatment methods for transgender prisoners: All of these ideas will be the tax payer’s burden. The average citizen will have to pay more taxes to pay for separate institutions or to continue hormone therapy for these inmates. Yes, this is 2010, but I highly doubt that Americans are ready and willing to support the rights of transgender prisoners. So what is there to do against an obvious violation of the 8th amendment? Unfortunately, there is no clear cut answer for this problem.
In my opinion, the only possible solution at this point is better regulation of the prison system. Maybe then sexual assaults and violence against transgender inmates can be better monitored and prevented. This is a topic for which there is no right or wrong answer and no clear solution. The fact that these individuals are in prison and outside the norm of gender identity, coupled with the fact that we are a conservative society, changes our perceptions of what is fair and just for our prison population. For now, there may not be much that we can do.