Gender & Incarceration
Photo Credit: https://rewirenewsgroup.com/article/2018/08/02/members-of-congress-trump-administrations-prison-policy-could-lead-to-significant-discrimination-for-trans-people/
Incarceration rates for women in the United States have grown at twice the rate of men in recent decades. Perhaps unsurprisingly, rates are particularly disproportionate among Black and LGBTQI+ communities. Despite this explosion in incarceration, prison and jail systems often fail to effectively grapple with gendered issues.
United States prisons are currently sex-segregated in all but very few instances. While currently constitutional, critics argue this policy is inequitable. Stephanie Covington, the co-director of the Center for Gender and Justice, argues that the purportedly gender-neutral approach U.S. prisons and jails have applied is illusory. “There is no gender-neutral,” Covington says, “[i]n our society, gender-neutral is male." The “gender-responsive” approach Covington advocates involves considering the particular needs women have and supporting incarcerated women with educational programs, basic dignities like hygiene products and opportunities to earn additional privileges.
While Covington’s approach targets presumably cis women’s prisons, considering each incarcerated individual’s specific needs is similarly central to the approach the National Center for Trans Equality (NCTE) advocates. Under the Prison Rape Elimination Act (PREA), “there has to be a case by case individual determination for each transgender person as to where they’d be most safely housed” says NCTE policy director Harper Jean Tobin. The binary sex-segregation in U.S. prison and jail systems puts transgender, intersex, and gender non-conforming incarcerated persons at particular risks of violence. Under the Trump administration, the Department of Justice announced a policy of housing transgender prisoners “according to their biological sex.” A letter to the administration signed by 67 members of Congress alleges “Presumably, the agency intended to refer to a prisoner’s assigned sex at birth. . . [but signatories] are gravely concerned that the undefined term ‘biological sex’ will function in practice… to keep transgender prisoners from ever being housed in accordance with their gender identity in violation of PREA’s standards.” Some have suggested remedying this by housing LGBT prisoners in separate “pods” for their protection. However, advocates suggest this too often leads to keeping LGBT prisoners in solitary confinement, and such a system would have to be implemented voluntarily and on a case-by-case basis.
Looking broadly, the available data reveals troubling implications regarding the mechanisms for the incarceration of cis women and trans individuals. Available data on gender in the carceral system is limited, but it is clear that women are incarcerated pre-trial at alarming rates. One “quarter of women who are behind bars have not yet had a trial” and women are held in jails at disproportionate rates. While jail typically means shorter stays, it can be more expensive to make phone calls (on average, three times the cost) and more difficult to receive mail, when compared to prison. While the study makes clear the limitations of existing data to address the “intersectional impacts of sexuality and race or ethnicity on women’s likelihood of incarceration. . . it is clear that Black and lesbian or bisexual women are disproportionately subject to incarceration.” The study did not explicitly consider data on trans and gender non-conforming individuals.
For queer and trans incarcerated individuals, discrimination and poverty contribute powerfully to incarceration. According to the ACLU’s Chase Strangio,
Poverty and trauma also fuel the incarceration of cis women, many of whom are held in jails likely due to their reduced ability to pay cash bail as a result of pay inequity. Particularly troubling is the data on incarceration among girls: not only are 10% of girls incarcerated for crimes such as truancy and running away from home, which are often related to abuse, but Black, Latinx and lesbian, bisexual or gender non-conforming children are even more heavily overrepresented than are adults from the same demographics.
Ultimately, many advocates insist on tackling the problem of mass incarceration at the root. Prison Policy Institute suggests dealing with the issue of violent offenses, for which a substantial portion of women are incarcerated, rather than focusing on the “easier” issue of non-violent drug offenses. Strangio insists “[t]he most important thing is to first get people out of prison. We incarcerate too many people. . . [p]eople should be able to survive while they are locked up, released sooner, and have access to basic survival needs when they do.” Formerly incarcerated advocates opposed the building of a new jail in Austin, Texas that would be based on the “gender-responsive model,” and offer more services to the women incarcerated there. Annette Price of GrassRoots Leadership, would prefer to see diversion programs to keep people out of jails in the first place. While Price agreed that women are often unable to get the services they need under the existing system, she argues, “building a jail is not going to solve that… to me, more jails and prisons is not the answer.”