"It was challenging being in a men’s prison because I faced a different level of discrimination being a trans woman, having this body, and being around all these men. The staff hypersexualized me and used my body to create policies only for me: ‘Oh, they can do that, but you can’t.’ … Prisons aren’t safe for anybody. Prisons were created to oppress and hold down and deteriorate you."
1. The Prison Rape Elimination Act
- Compliance with the Standards is determined through audits—or reviews—that take place annually and are conducted by outside agencies.8 Each year, one third of an agency’s facilities must be audited. Facilities that fail to comply with the PREA Standards risk losing required accreditations and/or a portion of their federal funding.9
- Check for information about upcoming audits in your facility. There should be contact information listed for the auditors and you can report violations directly to them.
- Whenever you write to the Inspector General or file a grievance, send a copy of that grievance to the PREA Coordinator for the agency that has custody over you. Even if you do not know the person’s name, you can send to “PREA Coordinator.”
- Incorporate Violations Into Grievances & Litigation. Even though there is no private right to sue under PREA, a violation of the PREA Standards could help to show that a prisoner’s constitutional rights have been violated.
2. Safety and Protection from Violence
"I would like for my legacy to be that I changed injustices for a multitude of people who were or would have suffered unjustly…"10
3. Medical Care
"We … all, whether we’ve been charged with a crime or not, whether we are popular or unpopular, whether we are loved or unloved, whether we are understood or stigmatized, deserve safe, quality, knowledgeable healthcare."20
- Look for policies about transgender prisoners, including policies about medical care. They may be in the prison law library. If not, you can ask staff for copies or send a public records request for all policies about transgender prisoners.
- If you were receiving hormones from a doctor prior to incarceration, have your medical records sent to the medical or health director at your facility.
- Get a copy of the WPATH Standards of Care to show the prison medical staff, or tell them where to find them (http://www.wpath.org/). Be sure to ask for care in writing, and send a copy to the health director of your prison or jail.
- Even if you are told that denials of medical and mental health care cannot be appealed, file appeals anyway. Try to get a medical staff member to respond to your appeals about care instead of correctional staff. If correctional staff answer your grievance, request at the next level that medical staff respond to your appeal since it involves medical issues.
4. Housing and Administrative Segregation
"Soltary confinement is…cruel and unusual punishment that benefits no one, and nothing about it rehabilitates anyone."45
- If you are placed in segregation and do not want to be there, file an appeal about your placement. You should also appeal anything that seems unfair about your placement, such as not being able to participate in a hearing, not being told why you were moved to segregation, not being able to participate in programming, or not being told when you can get out.
- If your placement is based on so-called safety concerns and you would feel safer in a women’s facility (as a transgender woman), request such a transfer and file appeals if you do not get one.
- As always, appeal all denials as soon as you can and within the time frames required by the grievance process.
5. Searches and Privacy
Transgender prisoners are frequently targeted for excessive, harassing, or public strip searches. Courts have recognized, however, that prisoners have a right to privacy during full body searches.53 Therefore, staff must have a good reason to do strip searches and cannot use them to harass or intimidate prisoners.54
- If you are asked to strip down in front of other prisoners, politely ask to be moved to a separate area.
- If you cannot use a private shower, ask to be able to shower at a different time than other prisoners or in a private area (as the PREA Standards require).63
- If you do not want to be searched by a staff member of a particular sex, politely ask for a different staff member to search you. You should inform staff that you do not feel safe being searched by staff members of that sex. In some prisons or jails, you may also be able to get a general order or piece of paper (sometimes called a "chrono") that says you should only be searched by women (if you are a transgender woman).
- Ask for your facility's official policy regarding searches. If not provided, it may be available in the law library or can be requested through a public records request.
6. Safely Preserving/Enforcing Your Rights
- Under the PLRA, prisoners who want to file a federal lawsuit about something that happens to them in jail or prison must first complete the internal appeals process. This means that you need to know the rules of any appeals process (sometimes called a "grievance process") in your prison or jail, including how quickly you have to file an appeal after something happens to you. In most prisons or jails, for instance, you will have to file a written complaint on a form that is provided. You have to explain what happened to you and also name any staff members who were involved. You will also have to explain how you want the prison or jail to fix what happened to you.
- If you do not file an appeal, it is very likely that you will not be able to bring a lawsuit about what happened to you. There are a few examples of courts holding that prisoners did not have to file appeals in emergency circumstances,64 where the prisoner could not get a copy of the grievance forms,65 or where the prison or jail just ignored the appeal.66 These cases are rare, though, so you should always file an appeal and be sure to keep appealing it through every level.
- The PLRA also requires prisoners to pay the full filing fee in all cases. If you do not have the money up front, you can pay in monthly installments from your prisoner account. Not having money should not prevent you from filing, but how much and how quickly you end up having to pay may have to be worked out with the court.
- The PLRA also prevents many otherwise justified lawsuits from moving forward because it says that in general, prisoners cannot get money damages unless they have suffered a "physical injury or the commission of a sexual act."67 Because of this, many courts have ruled that prisoners with psychological or emotional injuries cannot get money damages. The PLRA defines "sexual act" narrowly, requiring victims of sexual assault who are 16 or over to prove penetration or oral contact with a penis, vulva, or anus.68
- Get a copy of your prison's or jail's appeal policy. Always follow the policy exactly.
- Remember that the PLRA only applies to cases that are brought by a prisoner. This means that if you are about to be released, your case will not be controlled by most of the PLRA provisions if you file it after your release. Because other legal deadlines may apply, though, you should always try to get legal advice before you make any decisions about when or how to file a lawsuit about something that happened to you in prison or jail.
- Keep track of everything that happened to you—the names of officers, other prisoners, where things happened, when things happened, what policies are available, which are not available, etc. Even if you never bring a case in court, having details about what happened can be very important if you reach out to other people for help. If you are afraid that staff might take your paperwork, send copies to people you trust on the outside. Be aware, though, that if you are not sending information by legal mail to an attorney or legal organization, staff will likely read everything you put in letters or envelopes.
- Connect with organizations that work with transgender prisoners, including the ones listed below. You may also be able to connect with a pen pal on the outside if you feel that you need additional help or support.