Protected and Served? LGBT people and people living with HIV on criminalization, cops, and prisons.

QUEER PRISON WALLS
chalk art by Margie Diddams
Photography by Margaret Jean Plews
Phoenix City Hall (02/26/2103)

From Lambda Legal:

Protected and Served?

Are government institutions properly protecting and serving LGBT people and people living with HIV? Lambda Legal conducted a national study of the experiences individuals have with police, courts, prisons and school security. A total of 2,376 people completed the survey, the results of which are reported below...

PROTECTED AND SERVED: THE POLICE

Introduction

"I was 14 years old when my adoptive sisters and I were in a severe accident. The damages and injuries were extensive. My older sister was asked who our parents were, and she told them the names of our two moms. The officer gave my sister a puzzled look and asked, 'Who is your father?' My sister responded with, 'We have lesbian parents.' The officer without hesitation told her, 'We don't recognize that in this state.' This incident only added to the horror of the terrible accident we were in. Our moms reported the incident, but nothing was done about it." —Michael, Menomonie, WI

"I was arrested and charged with prostitution at a local casino. While the case was subsequently dismissed without going to court, during my arrest, I was physically and verbally assaulted by the arresting officers and others. I was put in handcuffs so tight that my wrists swelled up and turned purple. My face was shoved into a wall while I was handcuffed. The officers threatened, mocked and demeaned me for being transsexual." —Natalie, Las Vegas, NV

As part of the Protected and Served? survey, Lambda Legal asked respondents to share their personal stories of mistreatment by police, in courts, in prisons and by school security toward LGBT and HIV-positive people. See other stories or contribute your own here.

Police officers are charged with serving and protecting the public—all of the public. Yet lesbian, gay, bisexual and transgender (LGBT) people and people living with HIV have often been given good reason to be wary of whether that responsibility includes them. Police have targeted LGBT people and the places they congregate and socialize, including certain bars and parks, for unwarranted searches, arrests and raids. Some police officers have also demonstrated prejudice and hostility based on actual or perceived sexual orientation, gender identity or HIV status.

In 2012, Lambda Legal—a national organization committed to achieving full recognition of the civil rights of LGBT people and people living with HIV through impact litigation, education and public policy work—conducted a national study exploring the issue of government misconduct by the police, courts, prisons and school security against LGBT people as well as people living with HIV in the United States. (Note that in our findings, one of the categories we use, based on self-definitions, is “transgender or gender-nonconforming [TGNC]”).

A total of 2,376 people completed the individual survey. Respondents were also given the opportunity to share their own accounts of their experiences with government misconduct and some of those stories are also incorporated into this report.

Among the survey respondents, 1682 (73% of those responding to this question) said they had face-to-face contact with the police within the past five years. Many LGBT people and people with HIV reported that they felt discriminated against when dealing with police department officers and personnel.

In recent years Lambda Legal has filed discrimination lawsuits against police on behalf of LGBT people who have experienced harassment and unfair treatment. Defendants in these cases have included:

• Westchester County Police in New York for releasing sealed information—including names, photos, towns of residence, and original arrest charges—about more than a dozen men whose charges had been dropped, as part of "Operation Overexposed," a police sting targeting gay men.
• the Atlanta Police Department for aggressively and illegally raiding a gay bar called the Atlanta Eagle. During the raid, police detained and searched the bar’s patrons, forced them to lie face-down on the floor, and subjected them to verbal abuse. Not a single patron was charged with any crime as a result of that raid.
• the Johnson City Police Department (JCPD) in Tennessee for issuing a press release that included photos of 40 men arrested in a public sex sting. Lambda Legal reviewed hundreds of news releases issued by the JCPD and found that no other release about arrests included photos. Lambda Legal client, Kenneth Giles said he lost his job because of the publicity about his arrest.

What the Study Found

"I was called a faggot and beaten up by police officers right here in the nation’s capital, then charged with assaulting them and forced to plead guilty to being under the influence of my HIV meds." —Andrew, Washington, DC

Our survey responses included many aspects of interactions with police, which broadly can be described by the following two categories: 1) Misconduct and 2) Unsatisfactory Response.
Sometimes police officers themselves harass and assault LGBT people and people living with HIV. These serious forms of police misconduct are damaging and illegal. Police harassment and assault are destructive to the lives of victims, obviously, and they are also destructive to the prospect for the police of building trust within LGBT communities and people living with HIV.

Hostile attitudes

Many respondents reported that police officers’ attitudes toward them had been hostile. Among the 1682 respondents who reported having face-to-face contact with police in the past five years, the percentages who reported hostile attitudes from officers included:

• 21% of all relevant survey respondents
• 31% of respondents age 30 and under
• 32% of respondents of color (including 26% of Native American, 27% of African American and 40% of Latina/o respondents)
• 32% of TGNC respondents (30% of transgender)
• 35% of low-income respondents
• 38% of respondents of color under 30

Harassment and assault

Harassment and assault by police are far too common occurrences in LGBT and HIV-affected communities. More than one in eight respondents (14%) who had police contact in the past five years reported verbal harassment by police, while 3% reported sexual harassment and 2% reported physical assault.

People of color, low-income people, and people living with HIV reported harassment and assault by police more frequently than survey respondents as a whole. The percentage of respondents with police contact in the past five years who reported harassment or assault by police included:
Physically assaulted by police:

• 2% of all respondents
• 4% of respondents of color
• 4% of TGNC respondents
• 5% of low-income respondents
• 6% of HIV-positive respondents

Sexually harassed by police:

• 3% of all respondents
• 5% of respondents of color
• 5% of HIV-positive respondents
• 7% of low-income respondents
• 7% of TGNC respondents

Verbally assaulted by police:

• 14% of all relevant respondents
• 21% of relevant HIV-positive respondents
• 22% of relevant TGNC respondents
• 24% of relevant respondents of color
• 25% of relevant low-income respondents

Immigration Checks and Physical Searches

Only 1% of survey respondents with police contact in the past five years who reported their race as white said that police asked them to prove their immigration status. In contrast, certain groups of respondents were more likely to be asked for proof of their immigration status, including:

• 2% of all respondents with police contact in the past five years
• 2% of TGNC respondents
• 5% of Native American respondents
• 6% of black respondents
• 8% of Latina/o respondents

(A statistically insignificant number of respondents identified as immigrants).
Black and Latina/o respondents were also much more likely than LGBT or HIV-positive people of other races to be physically searched during their police contact within the past five years, including:

• 10% of all respondents with police contact in the past five years
• 18% of TGNC respondents
• 21% of black respondents
• 21% of Latina/o respondents
• 22% of similar Native American respondents

False Accusation and False Arrest

It is important to note that our survey’s responses are self-reported incidents of false accusation and false arrest, and that those responses have not been verified by Lambda Legal. Still, these numbers indicate troubling disparities in police treatment of people who are LGBT and people with HIV according to race/ethnicity, income level and gender identity.
Those who say they were falsely accused during police contact within the past five years include:

• 20% of all respondents with police contact in the past five years
• 28% of respondents of color
• 30% of low-income respondents
• 34% of TGNC respondents

Those who say they were falsely arrested during police contact within the past five years include:

• 4% of all respondents with police contact in the past five years
• 8% of respondents of color
• 8% of low-income respondents
• 6% of TGNC respondents

Neglect of Police Misconduct Complaints

When LGBT and HIV-affected people experience police misconduct, many file complaints about their negative experiences, either with other police officers or police monitoring boards. However, among the 205 (out of 2,376 total) respondents who complained about police misconduct in the last five years, 71% said that their complaint was not fully addressed by those they reported it to.
Low-income and TGNC respondents reported higher levels of neglect of a police misconduct complaint: 84% of low-income complainants and 83% of TGNC complainants reported that at least one police misconduct complaint in the last five years was not fully addressed.

Unsatisfactory Police Response

Many respondents reported inadequate or indifferent responses by law enforcement officials to reports of property crimes and assaults. The rate of dissatisfaction was significantly higher when the person reporting the crime is low-income or a person of color. (Our survey respondents’ self-reported experiences with police are not the equivalent of an objective evaluation of the adequacy of police response to reported crimes).

Inadequate Response to Complaints of Physical Assault

Eleven percent of all survey respondents reported that they were a victim of physical assault (of all types, not just those related to their orientation, identity, or expression) in the last five years. TGNC people (35% of all TGNC respondents) and low-income people (44% of all low-income respondents) are much more likely to report having been the victim of physical assault.
Of the 238 respondents who experienced physical assault:

• nearly two-thirds (62%) reported experiencing at least one incident in which police failed to fully address their complaints about physical assault.
• HIV-positive respondents and transfeminine respondents reported having experienced police neglect of physical assault at higher rates: 73% of HIV-positive personal assault victims and 70% of transfeminine respondents say they experienced police neglect of their physical assault complaint, compared to 59% of HIV-negative physical assault victims and 60% percent of cisgender (non-TGNC) assault victims.

Inadequate Response to Reports of Property Crime

One-third of our survey respondents (33%) had been the victim of property crime in the previous five years. Of those 772 respondents, nearly half (49%) said they experienced at least one incident in which police failed to fully address their complaints about property crime.

Within this pool of 772 respondents, transgender and gender-nonconforming people (TGNC) and people of color were more likely than other respondents to report police indifference or lack of proper response to property crime. This included:

• 58% of TGNC respondents
• 59% of African-American respondents
• 62% of Latina/o respondents
• 70% of Native American respondents

Inadequate Response to Reports of Intimate Partner Violence (IPV)

More than one out of ten respondents (11%, or 251 respondents) had been the victim of IPV (or domestic violence) in the previous five years.
The percentages of certain respondent groups who experienced IPV are higher than the survey sample as a whole, including:

• TGNC people (28%)
• people of color (32%)
• low-income people (42%)
• and people under 30 (43%)

Of the 251 respondents who experienced IPV, 41% reported experiencing at least one incident in which police failed to fully address their complaints about IPV. Some respondents were even more likely to report experiencing police neglect of IPV than others. Of those who reported IPV to the police, an inadequate response was reported by:

• 48% of African-American respondents
• 49% of TGNC respondents (56% of transfeminine and 46% of transmasculine respondents)
• 54% of HIV-positive respondents

Inadequate Response to Reports of Sexual Assault

More than one out of 20 respondents (6%, or 135) had been the victim of sexual assault in the previous five years. The percentages are higher for particular groups of respondents, including:

• African American respondents (8.2%)
• Latina/o respondents (8.9%)
• TGNC respondents (15.5%)
• Native Americans respondents (16%)

Of the 135 respondents who reported that they had been sexually assaulted, 39% experienced at least one incident in which police failed to fully address their complaint. Some groups were more likely to report police neglect of sexual assault complaints than others, including:

• 45% of low-income respondents
• 46% of disabled respondents
• 52% of TGNC respondents
• 53% of respondents of color
• 60% of Native American respondents
• 62% of Latina/o respondents
• 65% of TGNC respondents of color

Overall, respondents in this survey reported much higher levels of police neglect than did respondents in a 2011 national survey by the Bureau of Justice Statistics on the general population (although the questions were not fully comparable), which found that 18% were not satisfied by the police response to a reported crime, disturbance, or suspicious activity.

Key Recommendations

Police departments should:

• include sexual orientation, gender identity and expression, as well as HIV status, sex, race and ethnicity, in nondiscrimination policies, guidelines and resolutions. While our constitution commands equal treatment of people without regard to these characteristics, including an express prohibition increases the likelihood of compliance, and makes it easier to enforce.
• ensure that Police Patrol Guides and similar guidelines explicitly include a commitment to equal and respectful treatment of people who are LGBT, people living with HIV, and people of all racial and ethnic backgrounds, including explicit procedures for the respectful treatment of transgender people. These guidelines should specifically explain that police officers will be held accountable for failing to comply. For examples, see the patrol guides and policy manuals of New York City, New Orleans and Los Angeles, all of which were adopted after intense, long-term community pressure.
• adopt or amend policies prohibiting discriminatory practices, such as profiling based on race, ethnicity, HIV status, sex, sexual orientation, and gender identity and expression — practices that disproportionately affect people of color, low-income people, LGBT people, and gender non-conforming people.
• hire and promote qualified police officers and leaders across all levels of the department who demonstrate the interpersonal skills necessary to get along with peers, instructors, supervisors, and others, and demonstrate that they are able to interact professionally, regardless of the social standing, ethnic background, culture, gender, gender identity or expression, sexual orientation, or religion of other people.
• institute “early warning systems” to flag officers who have engaged in insensitive or abusive behavior and follow up with training, discipline or reassignment as necessary. When hiring police chiefs and related leadership positions, states and municipalities should ensure that final candidates are supportive of the rights of LGBT people and people living with HIV.
• implement mandatory cultural competency training for employees at all levels of the department, with content specific to the duties of the personnel being trained. The training should address issues relevant to the LGBT community. These trainings should be led by non-police personnel and with participation and input of community members.
• implement mandatory training about HIV for employees at all levels of the department, with content specific to the duties of the personnel being trained. The training should address issues like the need for confidentiality and accurate information about how HIV is transmitted. These trainings should be led by non-police personnel and with participation and input of community members.
• incorporate nondiscrimination policies and disciplinary consequences for non-compliance into union contracts to ensure consistent implementation.
• adopt a community-based complaint mechanism where victims of police misconduct and discrimination can report incidents in a safe, welcoming environment, with options for anonymous reporting (For example, the Civilian Complaint Review Board, an independent agency in charge of monitoring New York Police Department behavior). Adopt internal complaint mechanisms that ensure that those who report misconduct, including officers, are not retaliated against, and that any retaliation by officers or commanders against either community members or other officers is severely punished.
• designate personnel or an advisory board to be liaisons with the LGBT and HIV-affected communities, whose mission includes improving communications and relationships with those communities, and increasing departmental awareness, training and knowledge of LGBT and HIV-related issues.
• capture and track complaints alleging racial and other profiling based on bias with regard to sexual orientation or gender identity or expression. Data collected should include characteristics of the complainants (including but not limited to sexual orientation and gender identity or expression) as well as the outcome of investigations and any disciplinary actions taken. Regularly report on the number of complaints of misconduct based on sexual orientation or gender identity.
• work with LGBT community advocates and anti-violence groups to maintain up-to-date training and to ensure that policies and procedures are successfully implemented.

All government agencies included in the Protected and Served? survey, including police departments, courts, prisons and schools, should adopt comprehensive non-discrimination policies that:

• prohibit bias and discrimination based on sexual orientation, gender identity and expression and HIV status;
• ensure that culturally competent services and treatment are provided to LGBT and HIV-positive detainees. Police, court, jail/prison and school staff (including but not limited to police officers, police clerks, attorneys, judges, guards, schools security guards, school-based police and school safety officers) should undergo significant cultural competency trainings about sexual orientation, gender identity and expression, and HIV status so they will be able to treat all members of the LGBT community in a respectful, nondiscriminatory manner. These trainings should have a particular focus on gender identity and expression cultural competency, to emphasize the importance of improving the treatment of TGNC people. Additionally, these trainings should address HIV confidentiality and transmission, to improve the treatment of HIV-positive people;
• provide a transparent and accessible oversight process for reporting and redressing discrimination complaints, combined with clear and enforced disciplinary procedures;
• include employment policies that can help improve the hiring and retention of LGBT employees as well as contribute to a more LGBT-friendly environment.

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PROTECTED AND SERVED?: Jails and Prisons

Introduction

As part of the Protected and Served? survey, Lambda Legal asked respondents to share their personal stories of mistreatment by police, in courts, in prisons and by school security toward LGBT and HIV-positive people. See other stories or contribute your own here.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of LGBT people and people living with HIV through impact litigation, education and public policy work.

In 2012, Lambda Legal conducted a national study, Protected and Served?, exploring the issue of government misconduct by the police, courts, jails/prisons and school security against lesbian, gay, bisexual and transgender (LGBT) people as well as people living with HIV in the United States. A total of 2,376 people completed the individual survey. Respondents were also given the opportunity to share their own accounts of their experiences with government misconduct and some of those stories are also incorporated into this report. (Note that in our findings, one of the categories we use, based on self-definitions, is “transgender or gender-nonconforming [TGNC]”).

Among the areas of government misconduct which Lambda Legal’s Protected and Served? survey sought to explore is the discrimination and misconduct experienced by LGBT or HIV-positive people incarcerated in jails and prisons.

Among the respondents in the Protected and Served? survey, 5% (or 120) reported that they had been incarcerated in the past five years. Lambda Legal’s survey did not make a distinction among different types of institutions nor the reasons for imprisonment, so these results almost certainly include responses from individuals who were held before trial as well as those imprisoned after being convicted of a crime.

While 5% of our respondents reported having been imprisoned in the previous five years, the following subgroups of survey respondents were significantly more likely to report having been incarcerated:

• respondents with disabilities (9%) were nearly twice as likely to have been in jail or prison than respondents overall.
• transgender and gender-nonconforming (TGNC) respondents (10%) and Latina/o (10%) respondents were also nearly twice more likely to have been in jail or prison than respondents overall.
• African Americans (12%), Native Americans (13%), respondents living with HIV (11%) and low-income respondents (11%) were more than twice as likely to have been incarcerated than respondents overall.
• TGNC respondents of color (20%) were four times more likely to have been incarcerated than survey respondents overall.

LGBT People and People With HIV Are Particularly Vulnerable to Mistreatment When Incarcerated

Prisons too often fail to meet general standards for fair and humane treatment, especially of prisoners who are LGBT and people living with HIV. According to the American Bar Association’s Standards on Treatment of Prisoners, correctional facilities “should protect prisoners from harm from other prisoners and staff,” “correctional authorities should respect the human rights and dignity of prisoners,” and “[n]o prisoner should be subjected to cruel, inhuman, or degrading treatment or conditions.” The standards include specific nondiscrimination provisions as to sexual orientation, gender identity and HIV-positive status.

But in many cases these standards are simply not upheld. LGBT people, particularly youths, who are detained and incarcerated are at high risk for physical abuse, psychological abuse, being denied medical care and other forms of discrimination from other prisoners as well as from guards and prison staff.

Transgender and gender-nonconforming people have faced particularly severe mistreatment by jails and prisons. As documented in joint testimony to Congress by several LGBT organizations: “Nearly all transgender inmates are placed in sex-segregated facilities based on their sex assigned at birth and not on their gender identity. Transgender women are frequently placed in men’s facilities, and transgender men are frequently placed in women’s facilities. When prison officials make these incongruous placements, inmates are singled-out for scrutiny, harassment, and abuse by other inmates and prison staff.” A 2011 study by the National Gay and Lesbian Task Force concluded, “In jail and prison, abuse and violence continues in situations where transgender and gender-nonconforming inmates often have no protection or escape.

Correctional staff are frequently cited as participating in harassment, violence, and sexual assault — a serious abuse of authority.” Transgender prisoners may also be subjected to abusive physical searches to examine their genitalia and may be left unclothed to be demeaned and put on display for guards and other staff.

To address the crisis of sexual abuse in prison, Congress unanimously passed the Prison Rape Elimination Act (PREA) in 2003. In 2013, standards written by the U.S. Department of Justice to implement PREA finally took effect. These standards apply to federal, state and local prisons and jails; states risk forfeiting federal funds for noncompliance. However, several LGBT organizations have noted that the standards fall short of the measures needed to protect the safety of rape survivors.

What the Study Found

Assault and Harassment

Survey respondents reported harassment and abuse by jail or prison staff. Of all respondents who spent time in jail or prison in the five years before the survey:

• 7% reported sexual assault;
• 12% reported physical assault (beat up, hit, attacked with a weapon);
• 27% reported sexual harassment;
• 57% reported verbal assault or harassment (shouted at, taunted, called names) by prison or jail staff.

Of the survey respondents who had spent time in jail or prison in the five years prior to the survey, respondents who were TGNC, had physical or mental disabilities, or were living with HIV were much more likely than respondents overall to report harassment and/or assault by jail or prison staff. Among TGNC respondents, people of color reported harassment and assault more often than TGNC respondents overall.
Experienced physical assault:

• overall respondents: 12%
• respondents with HIV: 18%
• respondents with physical or mental disabilities (may include HIV): 21%
• TGNC respondents: 22%
• TGNC respondents of color: 28%
• TGNC feminine respondents: 33%

Experienced sexualharassment:

• overall respondents: 27%
• TGNC respondents: 34%
• TGNC respondents of color: 37%
• low-income respondents: 38%
• respondents with disabilities: 38%
• respondents with physical or mental disabilities (may include HIV): 39%
• transgender respondents: 44%

Experienced verbal assault:

• overall respondents: 57%
• respondents of color: 65%
• TGNC respondents: 66%
• respondents with physical or mental disabilities (may include HIV): 67%
• respondents with HIV: 71%

Nearly one-third (30%) of survey respondents who experienced harassment or assault by jail or prison staff reported their negative experiences to other jail or prison staff or to a prison monitoring board. Only 2% of the respondents who reported misconduct felt that the staff or monitoring board fully addressed their complaint.

Improper Placement

Transgender prisoners face unique dangers, in no small part because most jails and prisons incarcerate people according to the sex assigned at birth as opposed to their gender identity. Transgender prisoners may also be subjected to abusive physical searches to examine their genitalia and may be left unclothed to be demeaned and put on display for guards and other staff.

• one out of three (33%) Protected and Served? respondents who were in jail or prison in the last five years identified as transgender, genderqueer, gender-nonconforming, two-spirit, or “other” gender identity (abbreviated TGNC).
• the majority (60%) of TGNC respondents who had been in jail or prison reported being placed in a single-gender section of that jail or prison that did not match their gender identity.

TGNC respondents with feminine identities reported being wrongly placed far more often than TGNC respondents with masculine identities:

• 70% of TGNC-feminine respondents reported being wrongly placed.
• 47% of TGNC-masculine respondents reported being wrongly placed.

Key Recommendations

Correctional departments and prisons specifically should:

• respect the rights of TGNC people to identify their gender identity and be placed in facilities according to their self-identification. Jails and prisons should adopt policies in accordance with the Prison Rape Elimination Act (PREA) (and similar to those of the United Kingdom) in which the preference is to place individuals according to their gender identity, with exceptions made on a case-by-case basis at the preference of the individuals being held. The PREA standards state:
  

  “Decisions about where a transgender person, or a person with an intersex condition, is housed must be made on a case-by-case basis; they cannot be made solely on the basis of a person’s anatomy or gender assigned at birth. This means that, for example, every transgender woman must be assessed individually to determine whether she would be best housed with other women instead of in a men’s facility. An individual’s views regarding their personal safety must be seriously considered.

  “These decisions must be reassessed at least twice per year to consider changed circumstances such as incidents of abuse or changes in an individual’s appearance or medical treatment.

  “All transgender people and people with intersex conditions must be given the opportunity to shower separately from other inmates if they wish, regardless of where they are housed.”

• prohibit the use of solitary confinement, which is harmful and meant as a severe punishment, as an option for routine placement of people who are LGBT or people with HIV.
  

  “Facilities too often respond to the problem of abuse by placing survivors and those most at risk in isolation. When prolonged, this isolation can amount to torture. The Standards restrict such uses of “protective custody” by requiring that all available alternatives be assessed before placing an inmate involuntarily in segregated housing. Alternatives might include relocating a perpetrator of abuse, providing heightened supervision, changing housing placement or cellmates, placement in a single-occupancy cell within the general population, or transfer from a men’s to a women’s facility or vice versa.

  “In cases where inmates must be placed in segregation or isolation, access to programs, education, and other opportunities must continue to the greatest extent possible. Moreover, segregation—when it must be used—should not last for longer than 30 days. Agencies must document the reasons for any restrictions on programs or other opportunities and any use of segregation beyond 30 days.”

• eliminate policies and procedures that provide for differential treatment or enhanced disciplinary measures based solely on an inmate’s HIV-positive status.  Inmates should not, for instance, be excluded from particular jobs or refused placement into certain programs based on their HIV status.  Furthermore, it is inappropriate to subject any individual to more severe disciplinary or corrective measures, such as placement in administrative segregation or reassignment to a higher level of security, simply because that person is living with HIV.  The policies and procedures that require such differential treatment are based on inaccurate, outdated information about HIV and its transmission and/or misguided conceptions regarding the scientifically-based approach to preventing HIV transmission that is supported by medical professionals and public health officials.
• follow PREA standards regarding searches, and train staff in conducting professional and respectful searches. PREA prohibits all cross-gender strip searches and cavity searches except in emergencies, or those conducted by a medical professional. Any cross-gender searches that occur must be documented. Transgender individuals should be allowed to make a choice at admission as to whether they will be searched by male or female officers for purposes of these requirements. No search or physical exam may be conducted when the only purpose is to determine the inmate’s genital status.
• put measures in place to ensure that transgender people and people with HIV have access to all medically necessary health care. Transgender people and people with HIV have serious medical needs that must not be denied during their incarceration. For transgender people, possible medically necessary treatments include hormone therapy and transition-related care. Jails and prisons should adopt affirmative policies and procedures to ensure that transgender prisoners have access to evaluation by a doctor and any medically necessary treatments related to gender transition, including hormone treatment and surgeries. Jails and prisons should ensure that prisoners with HIV have uninterrupted access to the medication and the range of care they need.
• implement transparent complaint review processes, so victims of misconduct have a form of recourse.
• require correctional staff to undergo cultural competency trainings about sexual orientation, gender identity and expression and HIV so they will treat all people who are LGBT or who have HIV in a manner that respects their rights and needs in a nondiscriminatory manner. Training should include a particular focus cultural competency concerning gender identity and expression to address unfounded and incorrect assumptions about the needs of TGNC people and people with HIV.

All government agencies included in the Protected and Served? survey, including police departments, courts, prisons and schools, should adopt comprehensive non-discrimination policies that:

• prohibit bias and discrimination based on sexual orientation, gender identity and expression and HIV status;
• ensure that culturally competent services and treatment are provided to LGBT and HIV-positive detainees. Police, court, jail/prison and school staff (including but not limited to police officers, police clerks, attorneys, judges, guards, schools security guards, school-based police and school safety officers) should undergo significant cultural competency trainings about sexual orientation, gender identity and expression, and HIV status so they will be able to treat all members of the LGBT community in a respectful, nondiscriminatory manner. These trainings should have a particular focus on gender identity and expression cultural competency, to emphasize the importance of improving the treatment of TGNC people. Additionally, these trainings should address HIV confidentiality and transmission, to improve the treatment of HIV-positive people;
• provide a transparent and accessible oversight process for reporting and redressing discrimination complaints, combined with clear and enforced disciplinary procedures;
• include employment policies that can help improve the hiring and retention of LGBT employees as well as contribute to a more LGBT-friendly environment.

Further Discussion

Lambda Legal Fighting Discrimination in Jails and Prisons

Lambda Legal has been at the forefront of work to protect the rights of LGBT and HIV-positive people in prisons and jails. Recent cases include:

• a 2011 win in the U.S. Court of Appeals for the Seventh Circuit, affirming a judgment for Lambda Legal’s clients in Fields v. Smith, a federal lawsuit on behalf of transgender women incarcerated in a men’s prison in Wisconsin. The suit challenged a law (with the hostile title “The Inmate Sex Change Prevention Act”) that barred medically necessary transition-related health care for transgender prisoners in state custody, in violation of the federal Constitution’s guarantee against cruel and unusual punishment.
• In Melody Rose v. Steven M. Cahee, M.D., Fond du Lac Regional Clinic, S.C., and Agnesian Healthcare, Inc., a 2009 lawsuit, Lambda Legal sued the off-site healthcare providers for a Wisconsin correctional institution on behalf of inmate Melody Rose, who needed to have her gallbladder removed. When the defendant doctor to whom she was referred found out she was living with HIV, he refused to perform the procedure, stating in his notes that he was concerned about exposing the surgical team to HIV. The case was resolved to Ms. Rose’s satisfaction in 2010.
• a 2012 friend-of-the-court brief in the U.S. Supreme Court on behalf of inmate Kim Millbrook, who was sexually assaulted twice by prison staff members at two different prisons. After the second attack, prison guards threatened to kill him if he told anyone about the assault. Lambda Legal argued that Millbrook had a valid claim to sue the U.S. government. In March 2013, the U.S. Supreme Court agreed, reversing the lower courts’ determination that the officials were immune from suit and remanding the case for further proceedings.

Isolating LGBT Prisoners and Prisoners With HIV

Because of the high risk for violence, many prisons have segregated LGBT prisoners by putting them in LGBT sections, “solitary confinement” or “protective custody,” which the PREA standards now disallow. Such segregation does not provide real protection and creates other forms of abuse by limiting access to privileges, stigmatizing prisoners, and causing psychological damage because of long-term isolation.

Until recently, some prisons had similarly sought to isolate prisoners with HIV into separate wings, or sometimes entirely separate facilities—often claiming that such action is needed to “protect” the rest of the prison population from alleged risk of infection. The U.S. Centers for Disease Control and Prevention has opposed segregation of HIV-positive prisoners as irrational and counterproductive. In 2013, after succesful litigation by the ACLU, South Carolina became the last of a series of states, mainly in the South, that abolished their policies of segregating HIV-positive prisoners from others.

Denial of Health Care

While Lambda Legal’s Protected and Served? survey did not ask about the denial of health care, transgender people and people with HIV are particularly vulnerable when it comes to accessing appropriate health care while in prison. A  2011 national survey by the National Gay and Lesbian Task Force of transgender people found that 12% of people who had been in jails or prisons reported denial of routine health care and 17% (and 30% of Black respondents) reported denial of hormones.

Prison authorities’ failure to understand the medical necessity of transition-related health care such as hormone therapy and surgeries has led to unnecessary suffering. As the National Center for Transgender Equality and the National Gay and Lesbian Task Force have noted, “denial of hormone treatment to transgender inmates … has serious health consequences. Interruptions in hormone therapy can be physically painful and damaging to a person’s physical and mental health, and the initiation of hormone therapy for those who need it is highly important.”

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Founded in 1973, Lambda Legal is the oldest and largest national legal organization whose mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

As a nonprofit organization, we do not charge our clients for legal representation or advocacy, and we receive no government funding. We depend on contributions from supporters around the country.