KARLA BELLO, a care assistant in Florida, had been living as a woman for years when she missed a court hearing following a series of traffic violations, failed to pay bail and wound up in a male jail. There, the guards called her “sir” and confiscated her bra and “gaff” (a piece of fabric used to hide male genitalia), leaving her feeling humiliated. Worse, she says, she was denied access to the cross-sex hormones to which she had become habituated, inducing chest pains and intense anxiety. Putting transgender women in men’s prisons can be cruel. It is also, in an already dangerous environment, perilous: research suggests that transgender inmates are much more likely than other prisoners to be assaulted.
Enjoy more audio and podcasts on iOS or Android.
A growing awareness of this, combined with activists’ call for transgender people to be recognised as members of the gender with which they identify, is leading to changes in the way trans prisoners are housed. In most cases, such inmates (the majority of whom are trans women) are incarcerated with members of their biological sex. But this month, California introduced a law allowing prisoners to request to be housed in accordance with their gender identity. Similar policies have been introduced elsewhere after transgender inmates sued for mistreatment.
Trans activists’ insistence that trans women be treated as women is also influencing federal lawmakers. On his first day in the White House, President Joe Biden issued an executive order directing agencies to consider anti-discrimination measures in which he said that “children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room or school sports.” The Equality Act, which he has promised to make law, would redefine the “sex” of the amendments of the Civil Rights Act to include “gender identity” (that is, a person’s sense of their gender regardless of whether they have taken cross-sex hormones or undergone surgery). The logical outcome of that would seem to be admitting trans women to spaces once reserved for women, from sports teams to prisons.
America needs federal legislation to protect trans people from discrimination: in many states there may be nothing illegal about a landlord refusing to rent an apartment to a trans person, for example. But policies grounded in the flawed conflation of biological sex and gender identity will lead to more problems than they solve, because they create a clash between the rights of women and those of trans women.
Prisons offer a particularly worrying example of this. There are two obvious problems with putting trans women in female prisons. The first concerns safety. Most trans women pose no threat to women. But denying the reality of biological sex ignores the fact that men are much the more violent of the two sexes. In America they commit 90% of murders and constitute 92% of the prison population. There is no evidence that trans women have lower levels of criminality than men.
California’s Department of Corrections and Rehabilitation (CDCR) says the 130-plus prisoners who have so far requested they switch prisons (out of a trans population of around 1,000) are “predominantly” trans women. (This may also be because there are fewer trans men). Inmates’ requests to move are not granted automatically; they are assessed by a panel that is mindful that some male sex offenders will claim to be trans to gain access to victims.
But even if it were possible to weed out all sexual predators—some assaults, like flashing, rarely show up in criminal records —there would remain another, more widespread problem. Women’s right to separate spaces is not only about safety; it is also about privacy. “Women have a right to disrobe out of the sight of men,” says Ann Menasche, a lawyer with Feminists In Struggle which is lobbying to change the wording of the Equality Act. In prison that may be especially important. Most incarcerated women have suffered trauma: the American Civil Liberties Union says 92% of all women in California prisons have been “battered and abused”.
No one has surveyed female inmates about their views on how trans prisoners should be housed; “no one would dare, in the current climate,” says Ms Menasche. But it seems probable that most would rather not share a cell or shower with someone with the defining sex characteristics of a man. Most transwomen have not undergone “bottom surgery”: a survey by the National Centre of Transgender Equality found that 12% had undergone vaginoplasty or labiaplasty and 11% had a orchiectomy (the removal of one or more testicle).
How to balance the welfare of trans women and women inmates? When posed this question, transgender activists, who increasingly express dislike of the term “biological sex,” deny that any such tension exists. “Trans women are women,” says Shawn Meerkamper, a lawyer with the Transgender Law Centre, which helped draw up California’s new law.
The refusal to discuss any alternative to policies that ignore the meaning of “sex” precludes the exploration of better solutions. In Britain, the fear that allowing transwomen into women prisons endangers females prompted the establishment of a separate trans wing in a women’s prison in London. But this is unlikely to be copied in America: transgender-only spaces correspond with laws that protect transgender people as a separate category rather than those that count them as members of the sex with which they identify.
Changes to the way trans prisoners are housed are likely to come slowly. Guidelines introduced in 2012 that require all federal and state prisons to ask trans inmates whether they would feel safest in a men’s or women’s prison appear to have had little effect on where they are placed. But as more trans women enter women’s prisons, the problems this will entail will spark court cases. That may prompt a rethink. In the meantime, this policy will be tested at the expense of an unusually vulnerable and voiceless group.■
This article appeared in the United States section of the print edition under the headline “Prisoners’ dilemma”