In April, a transgender woman named Chelsea Gilliam sued the Maryland Department of Public Safety and Correctional Services (MDPSCS) over her treatment while she was caged in two of the city’s jails. Her lawsuit describes an all-too familiar story: Gilliam notes she was forced to live and shower in men’s housing; was denied her medication, including hormone treatments; was harassed by guards; and was sexually assaulted by another prisoner. When Gilliam was moved to a second jail she was forced into solitary confinement, “solely because she is transgender,” according to the lawsuit. The lawsuit describes this treatment as “cruel and unusual and unjustified”.
Officials from MDPSCS released a statement that said that they cannot comment on pending lawsuits but that the Department of Justice audits “one-third of the state’s correctional facilities each year.”
The audit MDPSCS referenced is meant to ensure compliance with the Prison Rape Elimination Act (PREA), which, according to a report from the ACLU, provides only minimal legal protection for trans people in prisons. While it may be true that these facilities meet state and federal standards, those standards don’t go far enough to keep prisoners safe.
The most recent audit for the Baltimore City Central Booking and Intake Center in February 2023 reported that they found no violations of state or federal policies. This statement also reports there were three allegations and zero criminal sexual harassment investigations in Central Booking in the past 12 months. This audit does not reflect what we hear weekly in bail reviews when defense attorneys describe the conditions and experiences their clients face in Central Booking.
MDSPSCS’s statement also says that the department “is not aware of any facility that has ever received a corrective action for a transgender-related issue.” However, this appears to discount the 2015 decision of Brown v. Patuxent Institution. Administrative Law Judge Denise Oakes Shaffer concluded Patuxent Institution was in violation of federal law by “failing to have appropriate policy in place to address protection for transgender inmates.”
The proposed order in Brown v. Patuxent Institution told Patuxent to create and promote “comprehensive policies and institute mandatory training regarding transgender inmates” to be in compliance with federal law. By failing to establish appropriate policy regarding interactions between employees and transgender prisoners, including house determinations, Oakes concluded that the facility was in violation of PREA.
The department’s updated “Medical Intake” policy after the 2015 decision stated, “incomplete surgical gender reassignment requires that the patient be classified according to his or her birth sex for purposes of prison housing, regardless of how long they may have lived their life as a member of the opposite gender.”
Gender is not a binary. Therefore, there is no “opposite” or “incomplete” gender. Medical procedures are not the sole qualifier to be trans; this policy intentionally rejects the multitudes of gender identities that come from social, cultural, racial, psychological, financial, and other factors. It also ignores the existence of intersex people and those with other chromosomal sex differences. A decision to undergo surgery belongs to a trans person alone. Many trans people do undergo surgery, and many do not. Restricting the rights of transgender people by including only those who have had a surgical procedure is active violence.
MDPSCS policy lists questions such as the age of recognition, state of transition, hormone treatment length, and evidence of transition, and yet still maintains that housing by gender is based on genitalia and surgery alone. None of these factors are the qualifiers of being trans: gender identity is known by a person themselves, not the medical steps they take.
This policy is known to create a huge threat to the safety of incarcerated trans people. According to the ACLU, “Any policy that mandates placement of transgender and intersex individuals based solely on a person’s genital characteristics or gender designation on state-issued identification presents a clear PREA violation.” MDPSCS’s solution to pervasive violence against trans people is to keep them in solitary confinement indefinitely — or, in the words of the United Nations Human Rights Commission, torture.
Multiple bills were introduced during the 2023 legislative session in Annapolis that attempt to address these issues. The bills tackled a variety of issues, including reporting based on gender orientation, protecting trans people in jails and prisons, and creating an ombudsman position to investigate complaints and report results to authorities. None of these bills made it out of committee due to the lack of political will of the Democratic supermajority to protect some of the most vulnerable and marginalized in our jails and prisons.
Even with proposed reforms, there is little transparency or oversight of the prison system in Maryland. It appears current MDPSCS transgender policy may be in violation of federal law with no consequence. The PREA audit intended to catch these violations reports implausibly low numbers of sexual harassment and abuse. According to the ACLU, penalties for noncompliance are weak, and easily avoided by providing non-concrete “assurances” that they are working towards compliance.
Jails and prisons put trans lives in danger every single day. There is no possibility of safety and protection through incarceration and dehumanization. In order to keep trans people safe, we need to keep them out of jail and provide them with resources to thrive.