Incarcerated and Discriminated: Transgender Youth and Migrants in United States Prisons

Elliot Fonarev (3L)

It doesn’t matter what you did or didn’t do, prison is bad for everyone. It looks even worse for people of color, trans and gender non-binary people, and people with mental health issues.

– Jamila Hammami, founder, Queer Detainee Empowerment Project (QDEP)

Over February reading week, more than twenty U of T Law students saddled up in carpools and made their way to the 2016 Rebellious Lawyering Conference, or Reblaw, at Yale University. Rights Review took the opportunity to interview two panelists, Carl Charles and Jamila Hammami, on incarceration of transgender people in the United States. Here is what they had to say about youth in prisons, migrant asylum seekers in detention, and advocacy for trans justice.

Jamila Hammami, social worker and founder of the Queer Detainee Empowerment Project (Photo credit: Queer Detainee Empowerment Project)

Jamila Hammami, social worker and founder of the Queer Detainee Empowerment Project (Photo credit: Queer Detainee Empowerment Project)

An estimated 20% of incarcerated youth in the U.S. are LGBT+, although they make up only 5 to 7% of the total youth population, according to the Equality Project. “[The reason] is cyclical,” said Carl Charles, a lawyer for the American Civil Liberties Union (ACLU) who works with incarcerated trans youth. “Trans youth are often misunderstood in their homes [which] brings conflict and depression to school, [where] they’ll get suspended while also being bullied. They often end up in the foster care system, where organizations can be parochial and religious, which creates more hostility toward trans youth…[and many] end up on the street.” Charles explained that these individuals often have to engage in misdemeanor crimes or street-based sex work to survive. On the street, “they are more likely to be profiled by police, especially if they are visibly gender non-conforming, racial minorities, and lack identification that matches their gender presentation, and end up in jail.”

Once incarcerated, a major problem for trans youth is being incorrectly placed in the wrong gendered facilities, where they become targets for harassment and violence, experience discriminatory treatment, and receive more punitive punishment than their non-trans peers.

Charles recalled one 2014 case that the ACLU referred to as “Justice for Jane.” Jane, a trans Latina youth and ward of the state, was placed in an adult male facility in solitary confinement. “There was a large social media campaign and she had a great legal team to move her back into a girls’ facility. Then a fight broke out between her and some girls and she was moved to a boys’ facility […] Jane was the only one that moved to a different facility [though she didn’t start the fight]. [Measures like] these put and keep trans youth at risk.”

Carl Charles, lawyer at the American Civil Liberties Union (Photo credit: Carl Charles)

Carl Charles, lawyer at the American Civil Liberties Union (Photo credit: Carl Charles)

Similar misplacement of transgender people occurs in detention facilities for migrants and asylum seekers, according to Jamila Hammami, a social worker and founder of the Queer Detainee Empowerment Project (QDEP), which supports and advocates for LGBTQI and HIV+ detainees all over the United States. Although some states have created separate units, called “pods,” within male detention facilities for trans women and for gay men, there are no pods for trans men. Most states still place trans people in incorrect single-sex facilities, according to the ACLU.

Another major problem for incarcerated trans people is lack of access to medical care. Hammami explained, “These places aren’t equipped to take care of trans folks.” Charles thinks this is due to lack of policy: “We know that in prison facilities with no LGBT policies, discretion is up to the wardens and correctional officers and the youth will receive severely negative treatment,” he explained. Through the ACLU, Charles recently advocated for an incarcerated trans girl in a Colorado facility and was able to get her medical treatment while at the facility. Hammami has also successfully lobbied for many trans detainees to get medical care in detention, but says trans detainees often suffer medical neglect. Trans detainees are often denied or delayed assessment and treatment appropriate for gender confirmation and physical and psychological health.

Trans people whom claim asylum in the United States from other countries will very often end up in detention. Since immigration law reforms in 1996, Hammami stated, asylum seekers who arrive in the United States are subject to mandatory detention, most often without access to a lawyer. LGBT asylum seekers, often fleeing homophobic and transphobic conditions, are then held in detention two-thirds of the time at the discretion of US Immigration and Customs Enforcement Officers, according to the Center For American Progress.

Last year, Hammami was invited to speak on the conditions of LGBT and HIV+ detainees at the 2015 UNHCR-NGO Consultations. “The UNCHR audience was appalled. We found from speaking to other delegations that other countries, such as the UK, don’t put people in detention first, but rather first provide them with food and housing. They get detained only if they don’t comply with check-ins. In the US, your first step is that you go in detention, and maybe if you get out, you will get an ankle monitor.”

Hammami explained that the average time spent in detention and the cost of one’s bond can vary greatly and is determined by a judge’s discretion. “I’ve been writing to one detained woman from Latin America for 3 years [while] another woman… was released recently after 2 weeks [with a] bond of $75,000.” Hammami told us that detainees are handed high bonds and have little ability to pay them because they lack community ties. “They’re fleeing here because they’re queer and trans and may have been rejected by their families.”

Both Hammami and Charles say lawyers can help break through some of these structural barriers by encouraging trans-friendly prison policies. “Attorneys can do their trans clients a great service by thinking about the broad ways gender plays a role in their clients’ lives,” added Charles. He recommends that lawyers working with trans youth educate themselves about why trans youth are more likely to come into contact with the criminal justice system and to think about how they can help their clients access medical and mental health services and safe housing.