Introduction

Meeting the needs and protecting the rights of LGBTI people in various custodial settings presents both challenges and opportunities for society’s institutions, including law enforcement and corrections.

Purpose and Intent of this Guide

This policy guide will assist correctional administrators, medical and mental health staff, training coordinators, line staff, and policymakers as they craft policies to address the treatment of LGBTI individuals in custodial settings. It may also help agencies that are paying greater attention to the needs of LGBTI individuals as they work to implement the PREA Standards, which require correctional agencies to safely screen, classify, and house LGBTI inmates as well as those who have intersex conditions. By integrating information about LGBTI individuals into policies, practices, and organizational culture, agencies will be better able to meet the needs of these inmates and increase the skill level of staff who work with this population on a daily basis.

This guide includes information that will help adult correctional facilities and juvenile justice agencies to assess, develop, or improve policies and practices regarding LGBTI individuals in their custody. The guide is not meant to be a quick reference for writing policies appropriate for all agencies and facilities. It is intentionally vague on “how-to” advice and “plug-and-play” policy guidance. Guides for writing policies exist in many forms.^[1] Rather, the purpose of this guide is to (1) define agencies’ obligations to LGBTI populations, both legally and in accordance with PREA Standards; (2) begin a dialogue within agencies regarding the safety and treatment needs of LGBTI populations; and (3) guide agencies in asking good questions about practices and implementation strategies for meeting the needs of LGBTI populations.

Part of the mission for all correctional agencies is to provide safe and secure environments for all individuals in their care and custody. State and federal law imposes legal obligations on correctional and juvenile agencies for the treatment of all persons in custody, with specific provisions for LGBTI populations. Agencies need policies to define and clarify the appropriate treatment of LGBTI individuals in their custody and meet all constitutional and other obligations to provide humane treatment to those in their custody. Additionally, strong policies can help mitigate the risk of liability to the agency and its staff in the event of an incident or litigation.

Chapter 1 of this policy guide discusses general terminology and the reasons that agencies need policies. It discusses the terminology necessary to understand issues of sexual orientation. Having a basic understanding of these terms helps us understand the issues and concerns of LGBTI individuals and the challenges they face in custodial settings. Understanding and proper use of terminology are at the core of developing policy and practice as they relate to LGBTI inmates and youth. In addition to this general discussion of terminology, there is a full glossary of terms in Appendix A. It is important to remember that these terms are evolving and can vary depending on who is using them. However, the glossary is consistent with the PREA Standards, and this set of definitions is used in this publication. Chapter 2 addresses the needs of juvenile justice agencies in creating policies for LGBTQI youth in custody. Chapter 3 discusses the needs of adult correctional settings (prisons, jails, and community corrections facilities) in developing LGBTI policies for inmates or residents. The appendices include a glossary; a case law digest; resources that address LGBTI issues along with resources for LGBTQI youth and adults; sample policies for prisons, jails, community corrections, and juvenile agencies; and training matrices.

Issues in Providing Care and Safety for LGBTI Individuals in Custody

During the past three decades, an increasing number of individuals have openly identified as lesbian, gay, bisexual, or transgender, and many young people are actively questioning their sexual orientation and gender identity. In addition, society has developed an increased awareness of people living with intersex conditions. Today, individuals who are—or are perceived to be—LGBTI are a part of nearly all segments of society, including those who are inmates and staff in correctional settings. Given the unique circumstance of LGBTI people under the jurisdiction of both adult and juvenile criminal justice systems, as well as those who are housed in immigration detention, correctional authorities must be able to ensure the safety of LGBTI people in their custody.

In 2011, there was considerable change in legislative and policy decisions concerning LGBTI issues. Anti-bullying initiatives, such as the It Gets Better campaign, have raised public awareness about the struggles of LGBTQI youth.^[2] School administrators responded in turn, displaying a heightened sensitivity toward LGBTQI youth.^[3] Schools enacted zero-tolerance policies and other anti-bullying measures aimed at eradicating violence and aggression toward LGBTQI or other gender-nonconforming students.^[4] Same-sex marriage advocates cheered the Obama administration’s decision to no longer defend Defense of Marriage Act (DOMA) cases.^[5] During the 2012 election season, voters were challenged to expand LGBTI rights, and they rose to the task; Maine, Maryland, and Washington joined Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia in approving same-sex marriages.^[6] Furthermore, Minnesota residents rejected a ballot measure to amend the state constitution to define marriage as a union between a man and a woman.^[7] Lastly, Wisconsin voters elected Tammy Baldwin as the first openly gay U.S. senator.^[8]

Unfortunately, a lack of knowledge about LGBTI people, coupled with little guidance for correctional institutions on how to maintain safety and how to respectfully communicate with this population, has resulted in significant challenges for LGBTI people in custody. The nature and severity of these problems were at the forefront of PREA’s enactment, the proposed Standards developed by the NPREC, and the final Standards issued by the DOJ.

In April, 2007, the Center for Innovative Public Policies, Inc., through an initiative with the NIC, collaborated with The Project on Addressing Prison Rape to sponsor the meeting “Working with Lesbian, Gay, Bisexual, Transgender, and Intersex Populations in Corrections Systems: Identification of Issues and Resources, Development of Recommendations.”^[9] The meeting brought together a diverse group of stakeholders, subject-matter experts, and corrections officials to identify challenges, propose solutions, develop recommendations, and identify resources for agencies with LGBTI populations.

During the meeting, the group identified approximately 30 separate challenges; the resulting unpublished report also made a number of important recommendations for improving the treatment of LGBTI adults and youth in custody.

A primary recommendation was to develop a policy guide for correctional agencies on the issue. The concept of this policy guide was born from that recommendation; the guide seeks to address the needs identified during the 2007 meeting by providing policy and practice recommendations that will help correctional staff who work with LGBTI adults and youth in custody.

The final standard makes the following applicable to prisons, jails, and community confinement facilities: (1) transgender and intersex inmates must be given the opportunity to use the toilet and shower separately from other inmates; and (2) it is prohibited to place LGBTI inmates in a dedicated unit or facility solely on the basis of LGBTI identification, unless such placement is pursuant to a legal requirement for the purpose of protecting such inmates.^[10]

Evolving Terminology and Definitions

To address the needs of LGBTI individuals in custodial settings, it is necessary to have a full understanding of the basic and appropriate terms that individuals use to present themselves. The most basic concepts are “gender identity” and “sexual orientation.”

Gender Identity

Gender identity is a person’s internal, deeply felt sense of being male or female, distinct from his or her sexual orientation. Everyone has a gender identity and, for many, their gender identity is consistent with their assigned sex at birth and their physical anatomy.

A transgender person has a gender identity that is different from his or her assigned sex at birth. A transgender woman is a person whose birth sex is male but who understands herself to be female and desires to live her life as a female; a transgender man is a person whose birth sex is female but who understands himself to be male and desires to live life as a male. A transgender person may publicly express his or her gender identity while very young, middle aged, or even elderly. Transition is the term that is often used to describe the time period when transgender people start publicly living their lives in accordance with their gender identity. Transition often includes a change in dress, hairstyle, and physical appearance; the use of a new name; and a change in pronoun (from “he” to “she,” or vice versa). During transition, many transgender people will also begin to undergo medical treatments (such as hormone therapy or surgery) to change their physical bodies to better match their gender identity; however, not all transgender people undergo medical treatments.

Some people’s gender-related appearance, characteristics, and behaviors—gender expression—cross genders or include aspects of both masculinity and femininity. The term gender nonconforming can be used to describe people whose gender expression is outside of societal assumptions for how men and women are expected to behave or appear.

Many transgender people experience high levels of distress that result in depression, anxiety, low self-esteem, and even suicide ideation.^[11] For some, the high level of distress develops into a condition known as either gender identity disorder (GID) or gender dysphoria.^[12] In 2012, the American Psychological Association (APA) announced its intention to remove the term “GID” from the forthcoming Diagnostic and Statistical Manual, fifth edition ,and replace it with gender dysphoria.^[13] The term “gender dysphoria” is used in this guide, except in circumstances where specific court holdings have turned on a GID diagnosis.

Heterosexual people who are gender nonconforming, or do not conform to gender stereotypes, are often perceived by others to be LGBTI and face many of the same risks of maltreatment in custodial settings as LGBTI people do.

Sexual Orientation

Sexual orientation refers to a person’s romantic and physical attraction to members of the same sex or a different sex. There is a continuum of sexual orientation, from exclusively heterosexual or “straight” (attraction to members of a different sex) to exclusively homosexual or “gay” or “lesbian” (attraction to members of the same sex), along with degrees of bisexuality (attraction to same-sex and different-sex people). People who are not sexually attracted to anyone are asexual. An asexual individual can still experience relationships but may not have feelings of sexual attraction or the desire to act on these feelings if they do occur.

Intersex

People who are intersex or have intersex conditions^[14] are born with external genitalia, internal reproductive organs, chromosome patterns, or endocrine systems that do not fit typical definitions of male or female. The medical conditions causing these variations are sometimes grouped under the terms “intersex” or disorders of sex development (DSD).^[15] It is estimated that 1 in 2,000 babies is born with an intersex condition.^[16] Although most people with intersex conditions do not identify as transgender, due to their unique bodies or their gender expressions, many experience abuse and harassment in correctional settings similar to the type of abuse transgender people experience.

Use of Terminology and Acronyms

Often, acronyms are used to refer to individuals who are “sexual minorities.” The most common acronym is LGBT—lesbian, gay, bisexual, and transgender—and is often used to identify the full community of individuals who do not consider themselves heterosexual or who are transgender.

Some people also use “Q” to include individuals who self-identify as “queer” or “questioning” or both. The term questioning refers to the active process in which young people explore their sexual orientation or gender identity or both and question the societal assumption that they are heterosexual or gender conforming. Many LGBT people go through this process of questioning before “coming out” (or telling other people that they identify as LGBT). It is important to note that not all people who are questioning, especially young people, will later identify as LGBT.

The PREA Standards do not use an acronym, but instead use the terms gay, lesbian, bisexual, transgender, and intersex.^[17] The PREA Standards also use the term “gender nonconforming” to encompass “any person whose appearance or manner does not conform to traditional societal gender expectations.”^[18]

In this guide, the acronym LGBTI is used to refer to the whole community of people who are sexual and gender minorities—lesbian, gay, bisexual, transgender, and intersex individuals. Additionally, the acronym LGBTQI (lesbian, gay, bisexual, transgender, questioning, and intersex) is used in this guide to reflect the process of questioning that often occurs in adolescence.

The American Counseling Association “opposes the promotion of ‘reparative’ therapy as a cure for individuals who are homosexual.” The American Psychoanalytic Association believes that “[p]sychoanalytic technique does not encompass purposeful efforts to ‘convert’ or ‘repair’ an individual’s sexual orientation.”^[19]

Core Principles for Understanding LGBTI Individuals in Custody

Just as corrections officials must develop an understanding of core terms used by LGBTI people, there are also core principles that can help officials better understand sexual orientation and gender identity. These core principles are based on well-developed research and principles developed by medical and mental health professionals.

Awareness and Self-Identification

Research in the area of adolescent development demonstrates that both sexual orientation and gender identity are established at a very early age.^[20] The latest research shows that children are disclosing their sexual orientation to others at younger ages than in previous generations.^[21] Not all youth who have same-sex attractions, experiences, or relationships self-identify as lesbian, gay, or bisexual.^[22] For some, it can take many years to understand and become comfortable with their identities, and some people do not come out until much later in their lives.^[23]

Substantial research indicates that gender identity is “hard-wired”. Do not assume the child or youth is confused about their gender identity. They most likely are not. This is not about current or future sexual orientation. Sexual Orientation is unrelated to Gender Identity.^[24]

Do No Harm: The Necessity of Medical and Mental Health Care

Health professionals agree that a person’s gender identity is an ingrained and inherent part of his or her overall identity, and attempts to change it will be ineffective and could potentially cause significant harm.^[25] Even though some people may choose not to act on their feelings or do not self-identify as lesbian, gay, or bisexual, individuals with same-sex attractions cannot change their sexual orientation.^[26]

Objective scientific research demonstrates that lesbian, gay, and bisexual identities fall within the range of normal sexual development and are not associated with mental disorders or emotional or social problems,^[27] and they are not the result of prior sexual abuse or any other trauma.^[28] In addition, numerous studies over the past 20 years have found that transgender individuals do not have serious underlying psychopathologies that cause or influence their transgender identities and that the number of transgender people with reported psychiatric problems mirrors that in the general population.^[29]

The World Professional Association for Transgender Health (WPATH)^[30] has issued internationally accepted protocols for the treatment of youth and adults with gender dysphoria.^[31] Treatment focuses on supporting a person’s understanding of his or her gender and is highly personalized, based on individual needs.^[32] Treatment can include a combination of counseling, hormone therapy, or surgeries as well as encouraging gender expression and gender identification.^[33] Disrespecting, punishing, or prohibiting transgender people from expressing their gender identity can lead to depression, suicide attempts, and problems with relationships, school, and work.^[34]

Medical experts do not view transitional treatments for transgender people as dangerous or experimental.^[35] Both the American Medical Association (AMA) and the American Psychological Association (APA) agree that these transition-related treatments are effective and medically necessary for individuals who have been appropriately evaluated.^[36] Medical organizations further recognize and support the need for transgender-specific care in custodial settings.^[37]

The National Commission on Correctional Health Care (NCCHC) adopted a position statement that provides guidance to health professionals who work in correctional settings about their responsibility to ensure the physical and mental health of transgender people in custody. According to NCCHC, the proper approach to transgender medical care is to follow the World Professional Association for Transgender Health Standards of Care, ensuring that transgender people who live in institutional settings have access to the same medical treatments that would be available to them in the community. NCCHC also discourages a “freeze” or halting of treatment regimes for transgender people when they come into custody, and instead recommends that treatments remain dynamic depending on current medical recommendations.^[38]

Emerging Data on LGBTI Individuals in Custodial Settings and the Challenges They Face

Individuals who are (or who are perceived to be) LGBTI are a presence in jails, prisons, juvenile facilities, community corrections facilities, and immigration detention facilities. A 2008 study conducted by the Bureau of Justice Statistics (BJS) found that 8 percent of the prison inmates surveyed identified a sexual orientation other than heterosexual (114,300 out of 1,430,300 surveyed inmates of federal and state prisons).^[39] Recently, a BJS survey of juvenile facilities found that more than 12 percent of youth self-identified as non-heterosexual.^[40]

LGBTI Individuals in Custodial Settings

LGBTI individuals are at significant risk for contact with the justice or correctional system. Although the social climate for LGBTI people has improved significantly over the past few decades, LGBTQI youth and adults continue to face hostility and discrimination in their homes, schools, workplaces, communities, and social service settings. As a result, LGBTI people may not have access to support networks to help prevent them becoming involved in the criminal justice system.

Studies of LGBTQI youth in school settings reveal that they experience a higher frequency of verbal harassment and physical assault than their heterosexual counterparts.^[41] Reports of physical violence include individuals’ clothes being forcibly removed, gang rape,^[42] and even death.^[43] LGBTQI youth often face these challenges not only at school but also in their homes and communities.^[44] Family rejection and school failure can lead to other problems, including homelessness,^[45] involvement in the sex industry,^[46] psychological problems,^[47] and self-medication with alcohol and drugs.^[48] Consequently, LGBTI people may have disproportionate contact with the criminal justice system that may begin, for some, in adolescence and continue into adulthood.^[49]

Furthermore, LGBTI identity can sometimes overwhelm companion issues of poverty and race. A study conducted by the National Gay and Lesbian Task Force and the National Center for Transgender Equality found that transgender individuals were 4 times more likely to live in extreme poverty.^[50] Individuals living in poverty have a substantially higher rate of involvement with the juvenile and criminal justice systems. These issues are exacerbated for LGBTI people of color, who are already disproportionately poor and may be detained by law enforcement because of their race.^[51]

What the Data Illustrate

LGBTI individuals who have contact with the juvenile or adult justice system often experience a number of serious challenges that begin at arrest and continue through release. These issues include abusive and demeaning contact with criminal justice officials; being inappropriately classified and housed; lack of access to resources, including medical and mental health care; and abusive treatment (verbal, emotional, physical, and sexual) from other inmates and staff.

Recent research efforts have focused on the incidence of sexual violence against LGBTI individuals in custody. Research and testimony about the vulnerability of those who are, or are perceived to be, LGBTI animated the passage of PREA in 2003. Even prior to PREA’s passage, research on sexual abuse in correctional facilities consistently documented that men and women with non-heterosexual orientations, transgender individuals, and people with intersex conditions were highly vulnerable to sexual abuse.^[52]

The NPREC proposed Standards to address prison rape on June 23, 2009;^[53] compliance indicators were included to address the specific vulnerability of LGBTI populations based on the finding that “certain individuals are more at risk of sexual abuse than others.”^[54] In particular, the NPREC found that “corrections administrators need to do more to identify those who are vulnerable and protect them in ways that do not leave them isolated and without access to rehabilitative programming.”^[55]

Research conducted by BJS pursuant to its mandate under PREA supports the NPREC’s findings and earlier research on the prevalence of sexual abuse in custodial settings.^[56] The BJS survey of youth in juvenile facilities found that more than 1 in 5 non-heterosexual youth reported sexual victimization involving another youth or a facility staff member, whereas slightly more than 1 in 10 heterosexual youth reported sexual victimization.^[57] The same study found that non-heterosexual youth were almost 10 times more likely than heterosexual youth to report they had been sexually abused by other youth while in custody (12.5 percent and 1.3 percent, respectively).

A 2008 BJS study of federal and state prisoners found that among 1,316,000 heterosexual inmates, only 1.3 percent reported sexual victimization at the hands of another inmate and 2.5 percent reported victimization by a staff member.^[58] Among 114,300 inmates with a non-heterosexual orientation, 11.2 percent reported sexual victimization perpetrated by another inmate and 6.6 percent reported sexual victimization by a staff member.^[59]

Other data illustrate that transgender women and girls are highly vulnerable to sexual abuse, especially when housed in facilities for men or boys.^[60] The University of California’s Center for Evidence-Based Corrections found that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent reporting being sexually assaulted.”^[61] In this study, transgender victims were also far more likely than other victims to have been sexually assaulted on multiple occasions.^[62] Such findings make clear that “[e]ven when compared to other relatively vulnerable populations, transgender people are perilously situated.”^[63] Because of this concern, the APA and the NCCHC have both issued statements recognizing that transgender inmates are at especially high risk of abuse and calling for their protection.^[64]

“In matters of housing, recreation, and work assignments, custody staff should be aware that transgender people are common targets for violence. Accordingly, appropriate safety measures should be taken regardless of whether the person is placed in male or female housing areas.”^[65]

A number of successful lawsuits have been filed by transgender inmates against the Federal Bureau of Prisons, state departments of corrections, and local jails across the country. In recent years, federal courts have issued decisions in every circuit as well as the U.S. Supreme Court. These cases involve allegations of inadequate health care, deliberate indifference to abuse, and other forms of mistreatment. For example, in 2003 the Fourth Circuit found that the Virginia Department of Corrections (VADOC) was required to continue to provide hormone therapy to Ophelia De’Lonta, a transgender inmate in their custody. De’Lonta was engaged in litigation with the VADOC, seeking a state-funded sex reassignment surgery, when the State of Virginia granted her parole. As a result of Ms. De’Lonta’s release, the court did not decide whether sex reassignment surgery was medically necessary and thus required by the Constitution.^[66]

Risk, Housing, and Classification

Because there are no specific policies to provide guidance for correctional staff on exercising appropriate judgment for risk assessment and placement of LGBTI inmates, these inmates are most often placed or housed according to their genitalia or sex assigned at birth. If an independent medical analysis and a risk assessment are not conducted, inmates’ safety, security, or programming needs may be at risk; this also could risk the safety and security of other inmates and staff.^[67] This is an issue in both adult and juvenile settings, where LGBTQI youth can face denial of access to health care, inappropriate housing, and punishment for expressing their gender.^[68]

Placement based on biology particularly impacts transgender women placed in men’s facilities. The NPREC found that transgender women housed with men are “at extremely high risk for abuse.”^[69] These women report verbal harassment, abusive strip searches, sexual assault, long-term administrative detention, and denials of program participation.^[70] The NPREC found that “research on sexual abuse in correctional facilities consistently documents the vulnerability of … transgender individuals.”^[71] LGBTI inmates also report that agency staff single out transgender people for abuse and have ignored or encouraged abuse by other inmates.^[72] Although little research exists on inmates with intersex conditions, NPREC findings show that this group is vulnerable to sexual abuse.^[73] PREA Standards incorporate special measures to protect both transgender and intersex inmates.^[74] When individuals enter custody, authorities must make important decisions about risk, housing, and classification; such decisions are often made on the basis of gender. Because LGBTI inmates are gender nonconforming, this presents challenges at the outset.

Corrections officials are aware of the particular vulnerabilities LGBTI individuals face; many facilities house LGBTI populations in administrative segregation or special population units.^[75] These options, although often based on a desire to protect vulnerable inmates from sexual harassment or assault, are effective for brief periods of time but have proven unworkable for a myriad of reasons. The PREA Standards provide that “[i]nmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers.”^[76]

Administrative segregation, and the ensuing isolation from the general population for purposes of “safety,” often exacerbates mental health conditions such as depression or gender dysphoria. In addition, isolation from the general population often means limited or no access to programming, regular visitation, or health care, all of which are necessary for LGBTI populations. Likewise, data suggest that special population units (such as those on Rikers Island and the San Francisco County Jail) have not kept inmates who identify as LGBTI any safer.^[77]

LGBTQI youth have experiences that are similar to their adult counterparts. A study by the Equity Project documented the experiences of LGBTQI youth, finding that these youth in juvenile justice facilities were often labeled sexual predators, isolated from other youth, singled out, or even sent to sex offender programs. Youth were also denied access to education or group activities because staff lacked the capacity and skills to protect them from serious acts of physical, sexual, or verbal abuse.^[78] LGBTQI youth were often placed in protective custody or administrative segregation, where they were confined to their cells for up to 23 hours a day.^[79] These experiences and conditions put LGBTQI youth at risk for other mental health issues such as depression, low self-esteem, substance abuse, and suicide.^[80]

Based on their actual or perceived sexual orientation and gender identity, LGBTQI youth may be subjected to physical, sexual, and emotional abuse at the hands of other youth as well as facility staff members.

Staff may treat LGBTQI youth disrespectfully and unfairly, or they may punish and ridicule youth because of their actual or perceived sexual orientation or gender identity.

LGBTQI youth may also be segregated as a means of protecting them from abuse or based on an unfounded fear that they will prey on others in a sexual manner.^[81]

Endnotes

[1] See,Crime and Justice Institute and National Institute of Corrections, Implementing Evidence Based Policy and Practice in Community Corrections, 2nd ed. (2009).; Susan W. Campbell and Larry S. Fischer, Staff Sexual Misconduct with Inmates: Policy Development Guide for Sheriffs and Jail Administrators (Naples, FL: Center for Innovative Public Policies, 2002).

[2] “It Gets Better,” itgetsbetter.org (“In September 2010, syndicated columnist and author Dan Savage created a YouTube video with his partner Terry Miller to inspire hope for young people facing harassment. In response to a number of students taking their own lives after being bullied in school, they wanted to create a personal way for supporters everywhere to tell LGBT youth that, yes, it does indeed get better.”).

[3] Advancement Project, et al., Two Wrongs Don’t Make a Right, Why Zero Tolerance is Not the Solution to Bullying (2012).

[4] Advancement Project, Two Wrongs.

[5] Department of Justice, Statement of the Attorney General on Litigation Involving the Defense of Marriage Act, (February 23, 2011).

[6] “Election 2012 Shows A Social Sea Change On Gay Marriage,” Huffington Post, November 8, 2012.

[7] “Minnesota Amendment 1 Same-Sex Marriage Ballot Measure Fails,” Huffington Post, November 7, 2012.

[8] Emmanuela Grinberg, “Wisconsin's Tammy Baldwin is first openly gay person elected to Senate,” CNN, November 7, 2012, https://www.cnn.com/2012/11/07/politics/wisconsin-tammy-baldwin-senate/index.html.

[9] See generally, National Institute of Corrections and the Center for Innovative Public Policies, Inc., Working with Lesbian, Gay, Bisexual, Transgender, and Intersex Populations in Corrections Systems: Identification of Issues and Resources, Development of Recommendations (2007) (unpublished document on file with the author).

[10] National Standards to Prevent, Detect, and Respond to Prison Rape 28 CFR 115.

[11] Israel and Tarver, Transgender Care, 134–135.; American Medical Association, Resolution 122: Removing Financial Barriers to Care for Transgender Patients, (2008). [hereinafter AMA Resolution 122].

[12] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (APA, 2000),576, 581 (diagnostic criteria for GID include a persistent discomfort with one’s assigned sex and with one’s primary and secondary sex characteristics, which causes intense emotional pain and suffering).

[13] Dani Heffernan, “The APA Removes "Gender Identity Disorder" From Updated Mental Health Guide,” GLADD (blog), December 3, 2012.

[14] Often intersex conditions are called “disorders.” There is a robust discussion in both the medical and advocacy communities about the use of the term. See, Elizabeth Reis, “Divergence or Disorder: The Politics of Naming Intersex,” Perspectives in Biology and Medicine 50 (2007): 535.

[15] See, “Advocates for Informed Choice: FAQ,” https://aiclegal.wordpress.com/. For more information about intersex conditions, visit Accord Alliance, https://www.accordalliance.org.

[16] See, Intersex Society of North America.

[17] See, 28 C.F.R. § 115.41 (2012).

[18]28 C.F.R. § 115.5 (2012).

[19] Joy S. Whitman, Harriet L. Glosoff, Michael M. Kocet, and Vilia Tarvydas, “Exploring Ethical Issues Related to Conversion or Reparative Therapy,” Counseling Today, May 14, 2006.

[20] According to studies, many youth report awareness of their sexual orientation by age five. Caitlyn Ryan and Rafael M. Diaz, Family Responses as a Source of Risk and Resiliency for LGBTI Youth, presentation at the pre-conference Institute on LGBTIQ Youth, Child Welfare League of America 2005 National Conference, Washington, DC (2005). Similarly, research indicates that a person’s gender identity is firmly established by age three.Gerald P. Mallon and Teresa DeCrescenzo, “Transgender Children and Youth: A Child Welfare Practice Perspective,” Child Welfare 85, no. 2 (2006): 215, 218.; Shannan Wilber et al., Best Practice Guidelines for Serving LGBT Youth in Out of Home Care (Washington, DC: Child Welfare League of America, 2006). It is not uncommon for pre-school aged children to self-identify as transgender.Stephanie Brill and Rachel Pepper, The Transgender Child: A Handbook for Families and Professionals (Berkeley, CA: Cleis Press, 2008), 16–17.

[21] Brill and Pepper, The Transgender Child, 16–17.

[22] Caitlyn Ryan, “LGBTI Youth: Health Concerns, Services and Care,” Clinical Research and Regulatory Affairs 20, (2003) 137, 139 (internal citations omitted).

[23] Ryan, “LGBTI Youth.”

[24] TransActive Education and Advocacy, “Top Eleven Tips.”

[25] Israel and Tarver, Transgender Care, 134–135.; Gerald P. Mallon, “Practice with Transgendered Children,” in Social Services with Transgendered Youth 49, 55–6 (Gerald P. Mallon, ed., 1999) [I found: Gerald P. Mallon, Social Work Practice with Transgender and Gender Variant Youth, ed. Gerald P. Mallon (New York: Routledge, 2000).]; Barbara Bradley Hagerty, “Evangelicals Fight Over Therapy To 'Cure' Gays,” NPR, July 6, 2012 (arguing conversion therapy makes people feel “sinful for their natural inclinations”).

[26] See, APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation, (Washington, DC: American Psychological Association, 2009), 35–41. [hereinafter APA Task Force Report on Therapeutic Responses].; American Psychological Association, “Sexual Orientation and Homosexuality.

[27] See, APA Task Force Report on Therapeutic Responses, 2, 11.; APA, “Sexual Orientation and Homosexuality.”; Gregory M. Herek and Linda D. Garnets, “Sexual Orientation and Mental Health,” Annual Review of Clinical Psychology 3 (2007): 353, 359.

[29] Collier M. Cole, Michael O’Boyle, Lee E. Emory, and Walther J. Meyer III, “Comorbidity of Gender Dysphoria and other Major Psychiatric Diagnoses,” Archives of Sexual Behavior 26, (1997): 13, 21 (citing three studies with similar findings completed over the span of 13 years).; George R. Brown, “Transvestism and Gender Identity Disorder in Adults,”in Treatments of Psychiatric Disorders, 3rd ed., ed. Glen O. Gabbard, (Arlington, VA: American Psychiatric Publishing, 2007), 2034–2035.

[30] WPATH is an international, multidisciplinary, professional organization whose mission is to promote evidence-based care, education, research, advocacy, public policy, and respect for transgender health. The organization’s membership includes hundreds of licensed professionals in the disciplines of medicine, psychiatry, nursing, psychology, sociology, social work, counseling, and law, from twenty countries, including the United States. The vision of WPATH is to bring together diverse professionals dedicated to developing best practices and supportive policies worldwide that promote health, research, education, respect, dignity, and equality for transsexual, transgender, and gender nonconforming people in all cultural settings. WPATH was formerly known as the Harry Benjamin International Gender Dysphoria Association, Inc. (HBIGDA). WPATH, www.wpath.org.

[31]The World Professional Association for Transgender Health, The Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, vers 7, (WPATH, 2012), [hereinafter WPATH Standards of Care].

[32]See, WPATH, Standards of Care, 8–9.

[33]WPATH, Standards of Care, 8–10. These are examples of some of the types of medical care recommended for the treatment of gender dysphoria. Not all transgender people undergo medical treatments as part of transition. The actual treatment needs and the timing of treatment will depend on the individual person and can only be determined in collaboration with a qualified medical professional.

[34] Mallon, Social Work Practice, 51.; Israel and Tarver, Transgender Care, 134–35; Brill and Pepper, The Transgender Child, 74–75.

[35]See generally, WPATH Standards of Care, 7.; Bockting, Walter, and Eli Coleman. “A Comprehensive Approach to the Treatment of Gender Dysphoria.” Journal of Psychology & Human Sexuality 5, no. 4 (1993): 131–55. Bockting, Walter O., and Eli Coleman. Gender Dysphoria: Interdisciplinary Approaches in Clinical Management. Haworth Press, 1992. Wylie C. Hembree et al., “Endocrine Treatment of Transsexual Persons: An Endocrine Society Clinical Practice Guideline,” Journal of Clinical Endocrinology and Metabolism 94, (2009): 3132, 3153–3154.; American Psychological Association, Transgender, Gender Identity, and Gender Expression Non-Discrimination 3 (2008), [hereinafter APA Resolution]; AMA Resolution 122, 2, n. 7.

[36] AMA Resolution 122, 1–2. See generally, American Psychological Association, Policy Statement: Transgender, Gender Identity, and Gender Expression Non-Discrimination (2008). [hereinafter APA Transgender Statement].

[37]See, National Commission on Correctional Health Care, “Position Statement on Transgender Health Care in Correctional Settings,” (October 18, 2009), APA Resolution.

[38] NCCHC, “Transgender Health Care.”

[39] Allen J. Beck and Candace Johnson, Sexual Victimization Reported By Former State Prisoners, 2008, NCJ 237363, (Washington, DC: Bureau Of Justice Statistics, 2012): 6.

[40] Allen J. Beck, Paige Harrison, and Paul Guerino, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008–09, NCJ 228416, (Washington, DC: Bureau of Justice Statistics, 2010): 1.

[43]See generally, Rebecca Cathcart, “Boy’s Killing Labeled a Hate Crime, Stuns Town,” N.Y. Times, February 23, 2008.

[45] See generally, "Homeless Youth: Fact Sheet #13,” (Washington, DC: National Coalition for the Homeless, 2008).

[46] See generally,G. Kruks, “Gay and Lesbian Homeless/Street Youth: Special Issues and Concerns,” Journal of Adolescent Health 12 (1991), 515.

[47] Centers for Disease Control, “Lesbian, Gay, Bisexual and Transgender Health".

[48] Centers for Disease Control, “Lesbian, Gay, Bisexual and Transgender Health.”

[49]Jerome Hunt and Aisha C. Moodie-Mills, “The Unfair Criminalization of Gay and Transgender Youth An Overview of the Experiences of LGBT Youth in the Juvenile Justice System,” (Washington, DC: Center for American Progress, 2012).

[50] Grant, Jaime M., Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, (Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011).

[51] Grant et al. Injustice at Every Turn.

[52]See, National Prison Rape Elimination Commission, National Prison Rape Elimination Commission Report (Washington, DC: NPREC, 2009), 73–4 (hereinafter Commission Report). Valerie Jenness, Cheryl L. Maxson, Kristy N. Matsuda, and Jennifer Macy Sumner, “Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault,” The Bulletin 2, no. 2 (UC Irvine, 2007). See generally, Sylvia Rivera Law Project, It’s War in Here: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons (Sylvia Rivera Law Project, 2007).

[53] Commission Report.

[54] See, National Prison Rape Elimination Commission, National Prison Rape Elimination Commission Report: Executive Summary (Washington, DC: NPREC, 2009), 7–9 (2009).

[55]NPREC, Executive Summary.

[56] Beck, Harrison, and Guerino, Sexual Victimization, 37.

[57] See Beck, Harrison, and Guerino, Sexual Victimization, 11. In comparison, 11.1 percent of heterosexual youth reported such abuse.

[58] Beck and Johnson, Sexual Victimization.

[59] Beck and Johnson, Sexual Victimization.

[60]See, Sylvia Rivera Law Project, It’s War in Here, 17–19.; Stop Prisoner Rape, In the Shadows: Sexual Violence in US Detention Facilities (Los Angeles: Stop Prisoner Rape, 2006): 14–15.; Stop Prisoner Rape and ACLU National Prison Project, Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender People, (Los Angeles, New York: Stop Prisoner Rape, ACLU, 2005): 5.

[61] See, Jenness, Maxson, Matsuda, and Sumner, “Violence in California Correctional Facilities,” 30.

[62] Jenness, Maxson, Matsuda, and Sumner, “Violence in California Correctional Facilities,” 29–30.

[63] See, Lori Sexton, Valerie Jenness, and Jennifer Macy Sumner, “Where the Margins Meet: A Demographic Assessment of Transgender Offenders in Men’s Prisons,” Justice Quarterly 27, no. 6 (2010): 858.

[64]See generally, APA Transgender Statement.; See, NCCHC, “Transgender Health Care.”

[65] NCCHC, “Transgender Health Care.”

[66] De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003).; De'Lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013).; Dian Walker, “Transgender Inmate Granted Parole,” NBC, January 25, 2014.

[67]See, Katayoon Majd, Jody Marksamer, and Carolyn Reyes, Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts (San Francisco, Washington, DC: Legal Services for Children, National Juvenile Defender Center, and National Center for Lesbian Rights, 2009): 102–03.

[68]61 Commission Report, 74.

[69] See generally, Commission Report.

[70] Commission Report.

[71] Commission Report, 7.

[72] Commission Report, 73–74.

[73] Commission Report, 73.

[74] 28 C.F.R. § 115.5; 115.41 (2012).

[75] See, Joan W. Howarth, “Note, The Rights of Gay Prisoners: A Challenge to Protective Custody,” 53 Southern California Law Review 53 (1980): 1225.; Darren Rosenblum, “ ‘Trapped’ in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism,” Michigan Journal of Gender & Law 6 (2000): 499, 530.

[76] 28 C.F.R. § 115.43(a) (2012).

[77] Paul Von Zielbauer, “City Prepares to Close Rikers Housing for Gays,” N.Y. Times, December 30, 2005.

[78] Majd, Marksamer, and Reyes, Hidden Injustice, 64 [detailing the collaboration between Legal Services for Children (LSC), the National Juvenile Defender Center (NJDC) and National Center for Lesbian Rights (NCLR)].

[79] Majd, Marksamer, and Reyes, Hidden Injustice, 127.

[80] Majd, Marksamer, and Reyes, Hidden Injustice, 111–112.

[81] Commission Report,, 145–48.