The Criminalization of Transgender People in the Time of Trump
Updated: Oct 18
Over the course of the last decade, transgender people have become victims of a volatile political battleground. Transgender people are those whose gender identity differs from the sex they were assigned at birth. Since the beginning of the Trump Era, the nation continues to witness startling incidents of discrimination. In July 2017, the Trump Administration announced a discriminatory ban on transgender service members. The following year, the New York Times received a memo stating that the Trump Administration sought to redefine gender as a biological, unalterable condition determined by genitalia at birth. Such actions have stirred great controversy and sparked outrage across the nation as blatant attacks on the transgender community in America. The question remains as to how these discriminatory actions will affect the trans community across the nation.
In light of the Trump Administration’s recent attempt to redefine, and essentially erase transgender individuals’ identities, should the attempts be successful, this would devastate the few protections the transgender community currently has. Prior to the attempt to redefine gender to deliberately exclude trans people, the transgender community was already in an immensely vulnerable legal state and more likely to be victimized within the criminal justice system. According to the 2011 National Transgender Discrimination Survey, not only are transgender people subject to discrimination across the societal spectrum like housing, healthcare, education, and employment, but also within the criminal justice system approximately twenty-two percent (22%) of respondents who interacted with police reported harassment by police, and people of color reported higher rates of harassment. For example, Bianca Feliciano, while walking in a suburb in Chicago, was suddenly stopped by police where officers refused to accept her ID and repeatedly harassed her by stating that she is not a female, and subsequently threatened her with physical violence. In addition, physical and sexual assault in jails and prisons poses a dangerous concern for transgender individuals. Sixteen percent (16%) of respondents who had either been to jail or prison reported being physically assaulted and fifteen percent (15%) of respondents reported being sexually assaulted.
The 2013 Policy Review and Development Guide by the National Institute of Corrections reported that prior to the Prison Rape Elimination Act (PREA), transgender individuals in prisons across the nation were highly vulnerable to sexual abuse – specifically when housed with males. Additionally, sexual assault is thirteen times more predominant among transgender inmates, whereas fifty-nine percent (59%) of respondents reported being sexually assaulted. The preceding statistics are demonstrative in that transgender individuals are at perilously higher risk of being victims of assault, and extremely vulnerable. In 1994, the Supreme Court ruled that prison officials cannot be “indifferent” to the sexual abuse where a transgender inmate was the victim of a violent rape. The Court further explained that officials are liable for such crimes when “the official knows of and disregards an excessive risk to inmate health and safety”. Farmer v. Brennan, 511 U.S. 825, 843 (1994).
In addition to challenges within the corrections branch of the criminal justice system, legal proceedings have also posed an additional hardship on the transgender community. Specifically, a lack of respect by both attorneys and court officials alike – such as disregarding a transgender individual’ s correct pronoun or name. Furthermore, a survey by Lambda Legal reveals that transgender or non-conforming respondents who had been in a court setting over the past five years, approximately thirty-three percent (33%) of respondents heard a legal official make negative remarks about their gender identity. For example, an Oklahoma judge stated that transgender people are fraudulent for trying to take the name of the opposite gender and cited bible verses to support her opinion. In Ohio, a judge barred a transgender teen from changing their name, citing that “children do not always know what is best for them during childhood”. The survey also demonstrated that transgender people of color experienced a twenty-one percent (21%) increase from the 33% of negative comments by court officials. In addition to discriminatory comments, twenty-six percent (26%) of respondents reported their gender identity being raised in legal proceedings when it was not appropriate, and an additional twenty-one percent (21%) had been “outed against their will in court”.
While the transgender community faces a flurry of openly and extensive discriminatory measures, significant strides have been made to extending protections of transgender people. In 2016, the Obama Administration issued federal guidance banning the discrimination of transgender students in school. However, the Trump Administration rescinded the guidance in early 2017. Nevertheless, according to the Movement Advancement Project (MAP), sixteen states and the District of Columbia have anti-discrimination laws in place for transgender and non-conforming identities. On November 5, 2018 Massachusetts voted to uphold a law that forbids gender identity discrimination in public places. California has anti-discrimination provisions in the laws governing employment, housing, and public accommodations in place for transgender people. Illinois also has anti-discrimination laws in place that span over housing, public accommodations, credit and lending, and policies for state employees. A landmark victory on November 6, 2018, when Democrats gained control over the House, could potentially mean advancing transgender protections across the nation. As of November 7, 2018, Attorney General, Jeff Sessions resigned at the request of President Trump. While Sessions is no longer a part of the Trump framework, acting Attorney General, Matthew G. Whitaker shares Sessions’ conservative values. Nevertheless, with Democrats causing an upset in a formerly Republican-dominated Senate and House, even with a new presiding conservative Attorney General, transgender issues now have the potential to regain visibility and hopefully become a key legislative focus for protection.