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Transgender People Face Irreparable Damage as a Result of the Broken Criminal Justice System

July 10, 2017

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The strength and resilience of incarcerated transgender individuals is beyond comprehension for many in the United States. “Fag,” “bitch,” “princess queen,” sissies,” and “queer,” were all used to demean, dehumanize, and downcast Miss Young and Miss Mardris, both trans women of color incarcerated in Illinois. While these jeers may be common place for many, the difference for them was that there was no escape and no recourse for the pair as their abuser was also their jailor.

Despite the danger it could place them in, the two spoke up, reported the incident, and filed claims in federal court against the correctional officer who verbally and emotionally abused them. Both Mardis and Young assert three types of claims against the correctional officer who verbally assaulted them: one based on intentional infliction of emotional distress, one for violation of equal protection, and the last for unlawful discrimination and retaliation.

After reporting the correctional officer to prison staff, both were placed in segregation where instead of having one cellmate they had an almost biweekly influx of changing cellmates, three at a time, which placed both in more danger. The two also faced more restrictions on the use of phones, washers, showers, and the day room. Upon their return to the general population of the prison, they generally remained in their cells in order to avoid their abuser.  In the face of all of this the two managed to file federal law suits on their own against the officer and continue to represent themselves.

There are more than 2.3 million people incarcerated in the US – more than anywhere else in the world – and there are a total of 6.7 million people under correctional supervision, including probation and parole. In 2010, 91 percent of those incarcerated were men. African Americans, despite only making up 13 percent of the population, accounted for 40 percent of the total incarcerated population. African American defendants also experience higher arrest rates due to increased police presence in their neighborhoods and higher sentencing rates than white defendants for the same crimes with the same criminal histories.

The data serves as the backdrop for the two plaintiffs out of Illinois who are representing themselves in court. Advocating for justice for incarcerated transgender people implicates the rights of incarcerated people of color, incarcerated sexual assault survivors, health care rights, and other social justice causes. To advocate for transgender individuals who have been incarcerated necessitates that one also advocate for racial justice if not only because of the inherit racial disparity within the prison population itself, they cannot be mutually exclusive.

According to the 2015 National LGBTQ Prisoner Survey, the largest survey of incarcerated LGBTQ people in the United States, respondents were over 6 times more likely to be sexually assaulted than the general prison population. The report also found that every respondent had been strip searched, which is one example of sexual assault that they endure. Protecting trans people in prison requires changing prison culture and protocol to protect everyone in prison. Ensuring that transgender people are safe, have access to healthcare, and can be their authentic selves cannot occur in isolation without changing the larger systemic problems.

The American concept of incarceration does not work, from the chain gang to Rikers Island. Changing our policies of incarceration could help restructure American society. Removing non-violent offenders from prisons will lower the incarcerated population, allow for more targeted rehabilitation efforts, increase the safety of correctional officers and incarcerated individuals, allow for the state to invest in social care and education instead of correctional facilities, and prevent the ostracization of convicted individuals, allowing them to remain in their communities and with their families. Maintained at society’s expense, prisons do not reform, help, or educate the majority of those incarcerated.

As transgender women, the two individuals were first subject to a hostile environment by being placed in a men’s facility. Their wellbeing and safety were also placed in the hands of an individual who was hostile toward them and who disregarded and demeaned their identity. They then faced retribution for seeking a reprieve from their abuser by being placed in a transient unit that exposed them to crowded conditions and changing cellmates. In the aftermath of all of this, these individuals then had to maneuver through the legal system on their own.

In the last election cycle a number of politicians paid lip-service to the LGBTQ community and referenced human rights violations overseas as a motivating factor in intervening in foreign affairs. However, there is a danger that the trans community, especially trans women of color, face right here at home. In 2017 so far, 15 trans individuals–all women of color–have been murdered in the United States (in the time it took to write this piece the number has been updated four times). In spite of the dangers they face, Young and Mardris continue to overcome obstacle after obstacle to defend their right to be themselves. For the trans community, social justice advocates, and the country, the message from their case is clear: we will not be victims, complicit, or silent.

 

By Steven Johnston, Holly Law Fellow, National LGBTQ Task Force

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