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Pichardo is a cisgender woman (meaning she identifies with the gender she was assigned at birth) who was using hormone replacement therapy to manage menopause symptoms. Because of her prescription, and possibly her appearance, Miami-Dade County Department of Corrections officials decided she was transgender, and decided to house her in a men’s facility, where she “spent 10 hours in a holding cell surrounded by leering inmates.”
The story’s author seemingly expects readers to be horrified because, when something like this happens to a cis woman, it’s “a serious indignity.” But we as a society have decided it’s acceptable and appropriate when transgender women are arrested, humiliated by prison staff, and placed in the dangerous environment of a men’s prison. Even Judge Frank Hull’s response underscores this view that trans women are really men: “Wrongfully misclassifying a biological female as a male inmate and placing that female in the male population of a detention facility was unlawful.”
However, the intentional misclassification of a transgender female as a male inmate is not only lawful, it’s the standard operating procedure in just about every state and municipality in the U.S., including Colorado, which has robust anti-discrimination laws.
In Colorado, “places of public accommodation include a restaurant, hospital, hotel, retail store and public transportation, among others.” It would be strange to make the case that prisons are somehow not places of public accommodation, and under Colorado law, protected classes include transgender status. This law was upheld in the 2013 case of a transgender student, Coy Mathis, which determined that the Fountain-Fort Carson School District had unlawfully discriminated against Mathis by not allowing her to use the girl’s restroom at her school.
The precedent set by the Mathis case was seen as a great victory for trans rights, but anti-discrimination laws are only as good as their enforcement. Anyone from a marginalized community can tell you that, at the end of the day, laws are just words on paper, sometimes capriciously enforced by those in power.
According to Mark Fairbairn, the Colorado Department of Corrections (CDOC) public information officer, “currently all male-to-female transgender offenders are housed in male facilities and female-to-male transgender offenders are housed in female facilities.” It would seem paradoxical that after the passage of such a sweeping anti-discrimination law in 2008, state agencies and places of public accommodation wouldn’t adopt policies to ensure they’re in compliance. However, according to Fairbairn, “we do not have a policy indicating transgender offenders are housed based on their gender assigned at birth. Transgender offenders are placed in facilities based upon collaboration between clinical services, the Office of Offender Services and the warden on a case-by-case basis.”
So surely there must be some cases of trans people being appropriately assigned and adequately protected from harm? “To date this has not occurred,” says Fairbairn.
To be clear, this is not a victimless oversight. In 2018, 19-year-old Lindsay Saunders-Velez, a transgender inmate who had been housed in women’s facilities as a juvenile, was transferred to a men’s facility when she turned 18, and the results proved horrifyingly predictable. Saunders-Velez was sexually assaulted by cisgender male inmates. She went through the process Fairbairn described, hoping that her particular case could be the one approved on that “case-by-case basis.”
U.S. District Judge Marcia Krieger denied Saunders-Velez’s request. Hours after the denial, an inmate entered Saunders-Velez’s cell and demanded sex. When she said no, he slammed her head against a metal bed, and “brutally raped her,” according to her lawyer Paula Grierson, who was quoted in a May 2018 Denver Post story.
Keep a cis woman in a holding cell surrounded by cis men for 10 hours and it’s obviously unlawful, but forcing transgender women to endure the extra-judicial punishment of violent assault for the entirety of their sentences is perfectly acceptable?
“Safety considerations are made for facility assignment for both the transgender offender and the population where the transgender offender would be housed,” says Fairbairn, echoing one of the most common dog whistles used in the debate about whether transgender people, specifically transgender women, deserve rights.
“Safety” appears to be the major concern, because cis people refuse to acknowledge the fundamental truth that trans women are women. The majority of cisgender people don’t just see trans women as men, but as weird, sexually deviant men, and therefore we pose an increased risk to the sexual purity and integrity of the cisgender women around us. This line of reasoning remains at the heart of the “bathroom predator” myth, used in recent years to attempt to legislate trans women’s access to public accommodations.
- Courtesy Colorado Department o of Corrections
- Saunders-Velez was assaulted in a men’s prison.
Statistically, cisgender male prison guards have raped more female inmates than trans inmates have (I found no record of trans inmates committing sexual assault in Colorado), but guards are not assigned to women’s prisons on a “case-by-case basis.” In 2017, Otero County paid $150,000 to Jennifer Hernandez, who was raped by Deputy Dominic Torres. In 2016, Susan Ullery was used as “human bait” to catch Denver Department of Corrections supervisor Bruce Bradley in a sting operation for sexually assaulting her. He resigned shortly after, facing no criminal charges.
In 2009, CDOC paid $1.3 million to a woman raped by a Corrections sergeant. U.S. Circuit Judge David M. Ebel wrote in that decision: “The right to be safe from sexual assault and rape by one of her guards turned out to be worth no more than the paper upon which [the regulation] was printed.”
So is CDOC really only concerned about protecting inmates from rape when they want to discriminate against trans inmates?
In May of 2018, the Colorado House of Representatives passed a resolution by Reps. Leslie Herod, Adrienne Benavidez and other legislators, including Pete Lee and Tony Exum, to address the issue of discrimination suffered by transgender inmates in CDOC care. The resolution ordered CDOC to establish policies to protect transgender inmates that are consistent with the Prison Rape Elimination Act and standards set out by the American Correctional Association and the National Correctional Care Health Commission.
Today, seven months after passage of the resolution, CDOC is still “finalizing a single policy to address management of transgender offenders.” Fairbairn notes that “it can take from a minimum of 90 days up to 12 months to implement a new policy.”
Rep. Herod has been working to ensure CDOC’s compliance with the House resolution. “This month [December] I asked the Department of Corrections to see their policies they have been working on,” says Herod. “To my knowledge they have not sent us over any actual documentation of any policy changes, nor have they engaged the community in a robust way... We will be working with this new administration to monitor any type of changes they are proposing, but also to make sure that we change the way that we are working with transgender people in our correctional facilities.”
Fairbairn estimates the policy will be finalized within the next 30 days, and that it will “incorporate some of the promising practices from jurisdictions mentioned in the resolution [HR 18-1007].”
“The big thing I think we are violating is the Prison Rape Elimination Act,” Herod says. “That is what we need to address. The Department of Corrections’ No. 1 responsibility is the care and custody of their inmates, and they are forgetting about the ‘care’ part.”