Chapter 3. LGBTI Adults under Custodial Supervision

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Similar to staff in juvenile facilities, many adult correctional professionals are ill prepared to work with inmates who identify as lesbian, gay, bisexual, transgender, and intersex (LGBTI), and most agencies do not have policies or provide training for staff related to working with LGBTI inmates. Without essential policies and training, staff members are unprepared to provide safe and professional care to this population, especially given the challenges that LGBTI inmates present in securing safe housing and medical and mental health care.

The Law

As all other incarcerated individuals, those who identify as LGBTI and are held in adult facilities have rights under the U.S. Constitution and under state and federal statutes and regulations. Understanding how these rights apply to LGBTI people can help criminal justice professionals develop policies and procedures that provide for the safety of LGBTI people and can also help correctional agencies meet their legal obligations.

Constitutional Law

The 8th Amendment to the U.S. Constitution gives citizens the right to be free from cruel and unusual punishment, which includes safety and adequate medical care in correctional settings.[144] Additionally, the U.S. Constitution provides the right to receive nondiscriminatory treatment under the 5th and 14th Amendments, and limited rights to privacy under the due process clause. Individuals also retain limited rights to freedom of religion, expression, and association, even while incarcerated.

Spreading rumors that a person is gay has been held to state a claim of deliberate indifference under the 8th Amendment because, “in the prison context … one can think of few acts that could be more likely to lead to physical injury than spreading rumors of homosexuality.”[145]

8th Amendment Protections from Physical and Sexual Abuse

Corrections agencies have a responsibility to protect inmates from abuse at the hands of other inmates and staff, including volunteers and contractors. Agency officials can be held liable under the 8th Amendment’s cruel and unusual punishment clause if they are deliberately indifferent and fail to protect inmates. In 1994, the U.S. Supreme Court held that it is unlawful for prison officials to be deliberately indifferent to the sexual abuse of a transgender inmate who was repeatedly raped and beaten by other inmates.[146] The Court explained that officials are liable for abuse of inmates when “the official knows of and disregards an excessive risk to inmate health or safety.”[147] An excessive risk exists when an inmate belongs to “an identifiable group of people who are frequently singled out for violent attack by other inmates.”[148] Since that finding, numerous courts have found that an inmate’s LGBTI status or gender nonconformity alone may be sufficient to put agency officials on notice of that individual’s vulnerability and need for protection.[149] Failure to take adequate protective measures in the face of this vulnerability can and generally does constitute deliberate indifference.[150] In 2004, the Sixth Circuit noted that “placing a transgender woman in protective custody with inmates who have assaulted other inmates resulted in a substantial risk to her safety and could amount to deliberate indifference.”[151]

Corrections agencies have a responsibility to protect inmates from abuse at the hands of other inmates and staff, including volunteers and contractors.

Use of Administrative Segregation for Protection

Although it is permissible to place vulnerable inmates in administrative segregation in some circumstances, agency officials will not be able to rely on this measure as long-term protection for LGBTI inmates. Whether it violates the U.S. Constitution to place vulnerable inmates in administrative segregation depends on the purpose of segregation, the availability of alternatives to provide protection, the harshness or restrictiveness of the conditions in segregation, the duration of segregation, and whether the appropriateness of segregation for a particular inmate is regularly reviewed.[152] Agency officials may, however, segregate LGBTI inmates as a temporary measure when there are specific circumstances, such as upon admission (while determining an appropriate long-term placement) or immediately following an assault and during a pending investigation.[153]

Medical Care for LGBTI Inmates

On multiple occasions, the U.S. Supreme Court found that deliberate indifference to a person’s serious medical needs violates the 8th Amendment.[154] An inmate is denied medical care when officials either refuse to provide medical care or are so incompetent that they fail to provide care, in effect. However, this does not suggest that an LGBTI inmate is entitled to the care of his or her choosing. Courts have recognized that the denial of “desired accommodations and medical treatment” does not violate inmates’ rights under the 8th or 14th Amendment.[155] One example is the refusal to provide hormone therapy for transgender inmates. On the other hand, courts have recognized that transgender inmates with gender dysphoria have a serious medical condition and that failure to treat inmates with this condition is a violation of the 8th Amendment.[156] As with any other medical condition, courts will generally defer to the medical staff’s treatment choices, but only if these choices result in treatments that are adequate and effective for a particular inmate’s gender dysphoria needs.[157]

Factors such as the length of imprisonment and custody are also relevant. The treatment required in a short-term jail or lockup will differ from that required in a prison. Medical care for inmates with gender dysphoria should be based on an individualized medical evaluation that determines what care is medically necessary for particular inmates. To meet this standard, correctional administrators should avoid policies that only permit prescribed treatments (such as psychotherapy or antidepressants) to treat gender dysphoria. Policies that specifically prohibit hormone therapy for inmates with gender dysphoria, especially those who were not receiving hormones at the time of incarceration, are not in accordance with the standards of care for gender dysphoria.[158] A federal district court found that a prison may not adopt a “rigid, freeze-frame policy,” where inmates with gender dysphoria have access only to the specific treatments they received prior to incarceration.[159]

Some courts have found that the harmful physiological and psychological effects stemming from the discontinuation of hormone therapy amount to deliberate indifference. Conversely, the U.S. District Court for the Western District of Texas has ruled that an inmate with gender identity disorder (GID) was not entitled to receive hormone therapy, stating that the inmate’s “disagreement with the course of treatment pursued by prison medical staff does not constitute a viable claim for deliberate indifference to serious medical needs under the 8th Amendment.”[160]

Courts have found that correctional policies that restrict certain treatments for all inmates with gender dysphoria “irrespective of an inmate’s serious medical need or the [prison medical professional’s] clinical judgment” are impermissible.[161] As one court explained, “there is no exception to [the 8th Amendment] for serious medical needs that are first diagnosed in prison.”[162] Additionally, if the treatment prescribed after a medical evaluation is not consistent with the patient’s diagnosis, or when the evaluation is conducted by someone without appropriate knowledge of gender dysphoria, inmates can challenge the adequacy of the medical evaluation and treatment.[163]

Court findings indicate that agencies may not deny treatment for inmates with gender dysphoria based on a generalized or unsubstantiated security concern, or based on concerns that relate to the inmate’s transgender status or gender expression. When treatment would present a security risk, corrections officials must balance these concerns against the medical necessity of the treatment.[164] Finally, medical treatment may not be denied to a person with gender dysphoria simply because it is expensive or because it might be unpopular or controversial to prescribe such treatment.[165]

Agency officials can be held liable for deliberate indifference to a person’s serious medical need by denying, delaying, or intentionally interfering with his or her medical treatment.[166]

The U.S. District Court for the Eastern District of Wisconsin held that “a reasonable jury could find that the defendants were deliberately indifferent to Konitzer's serious medical need when they failed to provide [her] with the second step of treatment from the standards of care, the real-life experience…”[167]

Gender Presentation and Expression

Denying inmates with gender dysphoria the ability to fully adopt the gender role and presentation consistent with their gender identities can constitute a denial of necessary medical care and a violation of the 8th Amendment.[168]

Another treatment frequently available for individuals with gender dysphoria is “Real Life Experience.”[169] This treatment consists of expressing the gender that is consistent with one’s gender identity in all aspects of everyday life. Some courts have recognized that Real Life Experience is a legitimate and often essential form of treatment for gender dysphoria in the correctional context and may at times be medically necessary and constitutionally required.[170] In contrast, the U.S. District Court of Kansas has held that a biologically male inmate did not have a constitutional right to receive cosmetics and female clothing.[171]

In Kosilek v. Maloney, the U.S. District Court for the District of Massachusetts determined that Real Life Experience was possible in prison, based on the testimony of medical experts that prison is an inmate’s “real life.”[172] In 2012, the same court found that prison officials had been deliberately indifferent to Kosilek’s serious medical need and ordered the Massachusetts Department of Corrections to provide gender-reassignment surgery.[173] The First Circuit recently overturned this case, but the court found that reasonable minds would differ on these important medical determinations, leaving room for different findings on another set of facts. The U.S. District Court for the Western District of Virginia reached an opposite conclusion, ruling on summary judgment that Ophelia De’Lonta, a male to female transgender inmate, was not entitled to surgical intervention to treat her severe GID.[174] The Fourth Circuit, however, reversed and remanded the lower court’s ruling, finding that De’Lonta is entitled to a hearing on the merits of her case.[175]

Searches and Discrimination

Agencies that permit conjugal visits may not prohibit conjugal visits for legally married same-sex couples if other married couples are provided opportunities for conjugal visits.[176]

Inmates in state prisons cannot be denied the right to marry someone of the same sex if marriage between same-sex individuals is legal in that state.[177]

If correctional officers target LGBTI people for unnecessarily public strip searches, it can violate the rights of inmates to be free from cruel and unusual punishment. Some courts have found that inmates have a clearly established right “not to be subjected to a humiliating strip search in full view of several (or perhaps many) others unless the procedure is reasonably related to a legitimate penological interest.”[178] In Meriwether v. Faulkner, the Seventh Circuit held that a male-to-female transgender inmate stated a valid 8th Amendment claim, where a correctional officer repeatedly demanded that the inmate strip in front of inmates and other officers for the sole purpose of viewing her body.[179] The court found this was sufficient to state an 8th Amendment claim because the searches were “maliciously motivated” and not related to security matters.[180]

Courts have found that discrimination in providing services and privileges based on sexual orientation is a violation of constitutionally held rights. For example, correctional agencies may not prohibit visits by same-sex partners or include restrictions on affection between individuals of the same sex during visits where these same restrictions do not apply to heterosexual couples.

Courts have also ordered agencies to stop enforcing policies that prohibit visitation by same-sex partners of inmates. Denying such visits for the purposes of security is not constitutional.[181] Similarly, the Ninth Circuit denied a prison’s motion to dismiss in a challenge to a state’s complete ban on same-sex hugging and kissing among inmates and visitors who were not blood related, rejecting the contention that the policy bore a “common-sense” relation to prison security.[182] Some state departments of corrections, including the California Department of Corrections and Rehabilitation, have opted to extend conjugal visits to registered domestic partners.[183] Some agencies, however, retain policies that limit conjugal visits to legally married inmates.[184]

Correctional agencies may not prohibit visits by same-sex partners or include restrictions on affection between individuals of the same sex during visits where these same restrictions do not apply to heterosexual couples.

Courts have also prohibited other forms of discrimination. Agencies cannot deny LGBTI people permission to attend religious services because of their sexual orientation,[185] nor can they fire or refuse to hire eligible inmates based solely on their sexual orientation.[186] Similarly, agencies cannot punish inmates because of their sexual orientation.[187]

Confidentiality and Disclosure of Medical Information

The constitutional right to privacy protects information concerning an inmate’s sexual orientation, and correctional officers may not arbitrarily disclose this information. Courts have recognized a similarly strong privacy interest in disclosure of one’s sexual orientation. Courts have clearly recognized that, even in the correctional context, a person has a “particularly compelling” constitutional privacy interest in certain highly personal information, including one’s transgender identity or HIV status,[188] and disclosing such information without a legitimate penological reason is unconstitutional.[189]

In Powell v. Shriver, a transgender woman housed in a women’s prison was casually “out-ed” as transgender and HIV-positive by staff, which led to a pattern of harassment by staff and inmates and violated her right to privacy. In that case, the Second Circuit specifically acknowledged the “excruciatingly private and intimate nature of transsexualism” and that such disclosure may put inmates at heightened risk of abuse; the court found that the disclosure violated privacy rights of inmates.[190]

Access to Materials with LGBTI Content

Providing access to LGBTI materials is often covered by the 1st Amendment. Courts find that agencies may restrict an inmate’s right to receive publications that may cause a threat to the daily operation of a facility,[191] but restrictions are limited to publications that would potentially interfere with security, order, or discipline. Agencies may not prohibit material solely because it contains LGBTI content; they can, however, generally prohibit sexually explicit materials.[192] A publication that discusses LGBTI issues or sexual orientation is not necessarily sexually explicit; agencies must have other reasons for excluding such content.

National Prison Rape Elimination Act Standards

The final PREA Standards include specific provisions for LGBTI and gender-nonconforming inmates according to facility type. Each correctional setting offers a varying degree of protection for LGBTI inmates. These are the minimum standards that must be met to be compliant with PREA. However, agencies can and should develop policies and practices that take into account the needs of LGBTI populations in their own facility.

Adult Prisons and Jails

The final PREA Standards require adult prisons and jails to conduct an intake screening within 72 hours of an inmate’s arrival to assess that inmate’s risk for sexual victimization or abuse. Specifically, the Standards provide that “the intake screening shall consider, at a minimum … whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.”[193] Furthermore, “an inmate’s risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization or abusiveness.”[194] Inmates may not be disciplined for refusal to answer or failure to disclose complete information in response to questions regarding sexual orientation. Importantly, an agency may not place LGBTI inmates in “dedicated facilities, units, or wings solely on the basis of such identification or status”[195] unless that placement is consistent with an existing consent decree, legal settlement, or legal judgment.[196]

The PREA Standards also include protections specific to transgender and intersex inmates. First, they indicate that, “in deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”[197] The “inmate’s own view with respect to his or her own safety shall be given serious consideration.”[198] Finally, transgender and intersex inmates must be able to use the toilet and shower separately from other inmates. Agencies must assess placement and programming assignments for transgender and intersex inmates at least twice per year.[199]

The PREA Standards also place limits on cross-gender viewing and searches. Agencies may not “search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate’s genital status.”[200] The facility is permitted to determine an inmate’s genital status “during conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.”[201] The agency must train its staff in how to conduct cross-gender searches and searches of transgender and intersex people “in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.”[202]

The Standards provide guidance for agency staff on employee training, investigation of sexual activity, and data collection responsibilities with regard to LGBTI inmates. All agencies are required to train employees on effective and professional communication with inmates, specifically LGBTI inmates.[203] Agencies are permitted to prohibit all sexual activity, but may not “deem such activity to constitute sexual abuse if it determines that the activity is not coerced.”[204] Finally, in collecting data on sexual incidents, the facility “shall consider whether the incident or allegation was motivated by ... gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status ... or was motivated or otherwise caused by other group dynamics at the facility.”[205]

Lockups

As do all individuals confined in a lockup, LGBTI individuals in such a facility[206] receive more limited protections under the Standards due to the temporary nature of these facilities. Agency staff must screen detainees for risk of sexual victimization or abuse. Staff must ask the detainee about his or her own perception of vulnerability[207] and must consider the detainee’s physical build and appearance to determine the risk of sexual victimization.[208]

A lockup facility is not permitted to “search or physically examine a transgender or intersex detainee for the sole purpose of determining the detainee’s genital status.”[209] The facility is permitted to determine an inmate’s genital status “during conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.”[210] Furthermore, the lockup must train staff to conduct cross-gender, transgender, and intersex searches in a “professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.”[211]

Staff must ask the detainee about his or her own perception of vulnerability and must consider the detainee’s physical build and appearance to determine the risk of sexual victimization.

Finally, in conducting sexual abuse incident reviews, the lockup must “[c]onsider whether the incident or allegation was motivated by . . . gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status . . . or was motivated or otherwise caused by other group dynamics at the lockup.”[212]

Community Corrections

The Standards also require that LGBTI residents of community confinement facilities[213] be screened for risk of sexual victimization and abuse. The intake screening must consider whether the resident is or is perceived to be LGBTI or questioning.[214] Facilities must reassess a resident’s risk level “when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the resident’s risk of sexual victimization or abusiveness.”[215]

When making housing and programming assignments for a transgender or intersex resident, “the agency shall consider on a case-by-case basis whether a placement would ensure the resident’s health and safety, and whether the placement would present management or security problems.”[216] The facility shall not place LGBTI residents “in dedicated facilities, units, or wings solely on the basis of such identification or status”[217] unless such placement is consistent with a consent decree, legal settlement, or legal judgment.[218] The facility must give serious consideration to the transgender or intersex resident’s view about his or her safety.[219] Finally, transgender and intersex residents must be permitted to use the toilet and shower separately from other residents.[220]

The Standards place limits on cross-gender viewing and searches. “The facility shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident’s genital status. The facility is permitted to determine an inmate’s genital status “during conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.”[221] “The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex residents, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.”[222]

The Standards also provide guidance for agency staff on training, investigation, and data collection with regard to LGBTI residents. The facility must train employees who may have contact with LGBTI residents to communicate effectively and professionally with them. Agencies are permitted to prohibit all sexual activity, but may not “deem such activity to constitute sexual abuse if it determines that the activity is not coerced.”[223] When conducting incident reviews, the agency must “[c]onsider whether the incident or allegation was motivated by . . . gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status… or was motivated or otherwise caused by other group dynamics at the facility.”[224]

Elements of Legally Sound and Effective Policy and Practice

All policies should be based on the following guiding principles:[225]

  • Respectful interactions between inmates, residents, and staff; between inmates; and between residents.
  • Do no harm.
  • Safety of vulnerable inmates or residents.
  • Adoption of accepted correctional practice.
  • Accountability in operations.
  • Recognition of the agency’s legal obligations.

In addition, all policies should include the following elements:

  • Statement of purpose.
  • Enumeration of included groups.
  • Prohibitions.
  • Requirements.
  • Scope of applicability.
  • Definitions.
  • Responsibilities.
  • Enforcement and sanctions (for both staff and inmates or residents).
  • Training and dissemination methods.

The following areas should be addressed when developing, revising, or implementing policies to ensure the safety of LGBTI inmates or residents in custodial settings:

  • Nondiscrimination.
  • Intake screening.
  • Risk assessment, classification, and housing.
  • Program participation.
  • Respectful communication with LGBTI populations.
  • Medical care.
  • Mental health care.
  • Privacy and safety.
  • Transportation.
  • Inmate orientation.
  • Staff training.
  • Volunteer and contractor training.

Each of these areas is discussed in greater detail below. Each section includes a discussion of the purpose for adopting a specific policy and a list of questions to consider when drafting or revising policies and procedures. Policies should fill the gap between what is required under the law and what should be done as good correctional practice. Appendix D includes examples of agency policies that address some of these issues.

Nondiscrimination Policies

Agencies should develop, adopt, and enforce policies that explicitly prohibit discrimination and mistreatment of inmates or residents on the basis of sex, age, race, national origin, disability, and actual or perceived sexual orientation and gender identity. These policies should specifically prohibit harassment and abuse of inmates or residents by staff or other inmates or residents based on gender identity or sexual orientation.

Following is a list of questions to ask about an agency’s nondiscrimination policy:

Nondiscrimination Policy Checklist

YES

NO

Does the agency have a nondiscrimination policy for employees, inmates, residents, and/or volunteers?

 

 

Does the agency policy require all LGBTI inmates or residents to be treated with fairness, dignity, and respect?

 

 

Does the agency policy prohibit attempts by staff to ridicule or change an inmate’s or resident’s sexual orientation or gender identity?

 

 

Does the agency policy define staff duty to provide safe and healthy environments in which all individuals are treated with respect and dignity?

 

 

Does the agency policy define staff responsibility for protecting the civil rights of LGBTI inmates or residents while in custody, and ensuring their physical and emotional well-being and safety in facilities?

 

 

Does the agency policy define the elements of incident reporting to include complaints of harassment, discrimination, and abuse?

 

 

Does the agency policy provide training and resources regarding the societal, familial, and developmental challenges confronting LGBTI inmates or residents?

 

 

Does the agency policy address the collection and analysis of data regarding the needs of LGBTI inmates or residents in its custody?

 

 

Does the agency use the collected data and analysis to make decisions?

 

 

Does the agency policy require equal access to programming for LGBTI inmates or residents (not dependent on classification)?

 

 

If the agency policy permits conjugal visiting for heterosexual couples, does the policy also permit conjugal visits for same-sex couples?

 

 

 

If the answer to most of these questions is “yes,” it is likely that the agency is close to being in line with federal and state laws and regulations as well as constitutional provisions for LGBTI inmates or residents. If the answer to even some of these questions is “no,” it may indicate that the agency has some work to do in this area, and a policy revision based on the legal rights outlined above and in the PREA Standards is in order.

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Intake, Risk Assessment, and Classification

Intake and Risk Assessment

Identifying safety concerns for LGBTI inmates or residents is an important factor in determining risk. Agencies should develop and implement intake processes to identify and assess risk for LGBTI inmates or residents who are vulnerable to physical and sexual assault, taking the inmate’s or resident’s assessment of risk into consideration.

Following is a list of questions to ask about an agency’s intake and risk assessment policy:

Intake and Risk Assessment Policy Checklist

YES

NO

During intake and initial classification, does the agency ascertain information about the inmate’s or resident’s sexual orientation and/or gender identity?

 

 

During the course of the inmate’s or resident’s incarceration, does the agency periodically update information regarding his or her sexual orientation and gender identity?

 

 

Do the agency employees who conduct initial screening and classification receive training regarding sensitivity in conducting interviews with LGBTI inmates or residents?

 

 

Does the agency policy require that an inmate’s or resident’s sexual orientation and/or gender identity be verified by multiple sources prior to classification?

 

 

Are medical practitioners the only staff permitted to physically examine inmates or residents to gather information about gender identity?

 

 

Does the agency policy have a process to document and accommodate the concerns of LGBTI inmates or residents in terms of safety, name, pronoun, toilet and shower preference, and searches?

 

 

Do the agency medical and mental health staff use screening tools that are developed specifically for LGBTI inmates or residents?

 

 

Does the agency policy require diversity training for employees that includes the impact of name-calling and harassment?

 

 

 

If the answer to even some of these questions is “no,” the agency will need to revise its policy to be more in line with the PREA Standards that address risk assessment and screening. Under the PREA Standards, the intake screening must, at a minimum, consider whether the inmate or resident is or is perceived to be LGBTI or gender nonconforming.[226] Risk assessment and screening are crucial to the safety of LGBTI inmates and residents, especially when those are the tools and policies in place to inform housing options in custody. All screening tools should include vulnerability assessments, the types of housing decisions that staff can make, and a stipulation as to when an assessment requires moving a decision up the chain of command. Housing and classification determinations are key to ensuring safety and limiting agency liability.

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Classification

Given the actual and potential harassment and abuse directed toward LGBTI inmates or residents, protecting their safety is unquestionably a legitimate concern.

Following is a list of questions to ask about an agency’s classification policy:

Classification Policy Checklist

YES

NO

Is the agency classification policy based on individualized needs that balance the inmates’ or residents’ physical and emotional well-being and safety?

 

 

Is the agency classification process objective and free of individual biases?

 

 

Is the agency classification process defined in written policies and procedures?

 

 

Does the agency prohibit blanket policies regarding the classification of LGBTI inmates or residents, or those perceived to be LGBTI?

 

 

Does the agency classification policy govern the placement of inmates or residents into sex-offender programs or units based on articulated criteria, including orders of the court?

 

 

Do the agency classification and housing policy and procedures consider physical layout and privacy issues when determining the location for an LGBTI inmate or resident?

 

 

Does the agency place vulnerable inmates or residents in the least restrictive environment necessary to ensure safety and provide the inmates or residents with equal access to facility services?

 

 

Do the agency classification procedures address how inmates or residents in various classifications are housed if the facility is crowded?

 

 

Do the agency classification and housing procedures consider privacy concerns when assigning housing for LGBTI inmates or residents?

 

 

Does the agency develop responses to abuse or harassment (or threat of abuse or harassment) of LGBTI inmates or residents that do not rely on the isolation or segregation of these inmates or residents?

 

 

 

Some agencies respond to safety concerns by placing LGBTI inmates in administrative segregation or protective custody. However, instead of isolating LGBTI inmates, staff should consider other strategies as outlined in classification policies. The safety of inmates or residents can be achieved by ensuring appropriate staff-to-inmate ratios; modeling respectful behavior; providing close supervision of inmates or residents; promptly intervening to interrupt any disrespect, harassment, or abuse directed at other inmates or residents; and keeping inmates or residents meaningfully engaged in constructive programming.

Additionally, LGBTI inmates should be classified and housed in sex offender units or programs only as consistent with the agency’s policies or court orders. It is not appropriate to house LGBTI inmates in sex offender units solely because of their gender identity or sexual orientation.

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Housing

Determining gender-appropriate housing for transgender and intersex inmates or residents may be a challenge. Some state and local correctional and law enforcement agencies have written policies concerning the housing of transgender and intersex inmates. These policies incorporate an individualized approach to housing, as recommended by the National Prison Rape Elimination Commission and the final PREA Standards.

Following is a list of questions to ask about an agency’s classification and housing policies for transgender and intersex inmates or residents:

Classification and Housing Checklist for Transgender and Intersex Inmates or Residents

YES

NO

Do the agency classification and housing policies include evaluation of a person’s current genital status in making placement decisions?

 

 

Do the agency classification and housing policies include factors relating to the inmate’s or resident’s emotional and physical well-being, and that prioritize the inmate’s or resident’s evaluation of his or her safety?

 

 

Do the agency classification and housing policies include a review of an inmate’s or resident’s privacy concerns, available housing options, and recommendations from the inmate’s or resident’s mental health providers regarding appropriate housing or classification?

 

 

Does or can the agency provide access to private toilet and shower facilities, when necessary, or a single room for sleeping, while allowing inmates or residents to have full access to the facility’s daily programming?

 

 

Does or can the agency place transgender inmates or residents according to their core gender identity rather than their birth sex?

 

 

When it is necessary, can the agency place transgender inmates or residents safely according to birth sex to protect their physical and emotional well-being?

 

 

Does the agency house transgender inmates or residents in a mixed-gender unit or program?

 

 

Does the agency determine reclassification needs based on requests by inmates or residents or based on victimization?

 

 

 

Individualized decision-making is key in making appropriate and ultimately safe housing decisions for LGBTI inmates and residents. Currently, some agencies have policies that specifically call for individualized placement decisions for transgender and intersex individuals.

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Respectful Communication

Respectful communications between staff and inmates or residents should be the agency’s objective, including how LGBTI inmates are addressed based on their gender preference.

Following is a list of questions to ask about an agency’s respectful communication policy for inmates or residents:

Respectful Communication with LGBTI Inmates or Residents Policy Checklist

YES

NO

Does the agency have a zero-tolerance policy for sexual harassment, including harassment by staff and inmate-on-inmate or resident-on-resident harassment?

 

 

Does the agency policy include direction to staff on how to address LGBTI inmates or residents using respectful and appropriate language?

 

 

If the agency policy permits inmates or residents to wear clothing other than issued clothing, does the policy permit them to express themselves through clothing or grooming (within the bounds of safety for all inmates or residents)?

 

 

Does the agency policy address confidentiality of information, including staff disclosure relating to the privacy and confidentiality of LGBTI inmates or residents?

 

 

Does the agency policy adhere to all confidentiality and privacy protections afforded LGBTI inmates or residents under applicable state law?

 

 

Does the agency policy allow for sharing the information necessary to achieve a particular purpose, such as identifying an appropriate placement in another facility?

 

 

Does the agency policy provide for eligible LGBTI inmates or residents to access programming and services within facilities?

 

 

 

LGBTI policies should consider addressing transgender inmates or residents by the name and pronoun that the inmate prefers. If an agency’s policies allow inmates or residents to wear clothing other than that issued by the institution, consideration should be given to permitting inmates or residents to express their gender identity through clothing. Also, where appropriate, agencies may consider allowing inmates or residents to express their gender identity in matters of grooming.

Correctional staff should respect each inmate’s or resident’s privacy and should never disclose an inmate’s or resident’s sexual orientation or gender identity unless the inmate or resident has given them permission, or unless security or another important agency interest requires the disclosure.

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Medical and Mental Health Care

At a minimum, policies on medical and mental health should provide all inmates and residents with access to appropriate medical and mental health care. LGBTI inmates or residents identified as needing mental health or medical care should receive the care they need. Agencies should work to ensure that medical personnel are knowledgeable about the health needs of LGBTI inmates or residents—especially transgender inmates or residents.

Following is a list of questions to ask about an agency’s medical and mental health care policy for inmates or residents:

Medical and Mental Health Care Policy Checklist

YES

NO

Do the agency medical and mental health protocols include opportunities for LGBTI inmates or residents to access services that address self-acceptance and validation, concerns about disclosure of sexual orientation or gender identity, family relationships, healthy intimate relationships, and sexual decisionmaking?

 

 

Does the agency policy promote the hiring of medical and mental health professionals who have expertise and/or experience in working with LGBTI inmates or residents?

 

 

In assessing an inmate’s or resident’s medical and/or mental health status, does the agency policy direct medical staff to include an assessment of an inmate’s or resident’s safety?

 

 

Do the agency medical and mental health protocols direct those conducting medical screening to inquire about the inmate’s or resident’s sexual activity, sexual orientation, and gender identity, both before and during incarceration?

 

 

Do the agency medical protocols provide for gynecological and obstetrical care?

 

 

Do the agency medical protocols provide for HIV and STI testing, care, and confidentiality?

 

 

Do the agency medical and mental health protocols provide for counseling for sexual trauma that occurred either before or during incarceration?

 

 

Do the agency medical and mental health protocols provide for mental health evaluations that include assessment of an array of mental health diagnoses, including gender dysphoria?

 

 

Do the agency medical protocols address medical care for transgender inmates or residents, including evaluation of their care prior to incarceration?

 

 

 

At a minimum, agencies should ensure that inmates or residents have access to medical personnel who are knowledgeable about the particular health needs of LGBTI people. LGBTI inmates or residents should have access to appropriate professionals who can provide all medically necessary treatment. If the facility cannot provide treatment on site, then the inmates or residents should be transported to the provider. Any medical care an LGBTI inmate or resident receives prior to arriving at the facility, such as hormone treatments, should be continued upon arrival at the facility after consultation with the appropriate medical providers.

Download Checklist Download LGBTI Adults under Custodial Supervision Checklists

Privacy and Safety

Agency policy should address how transgender inmates or residents are housed by assessing their safety and privacy during toileting, showering, and sleeping. In general, policies that are integral to addressing the safety and privacy issues and concerns of LGBTI inmates or residents include:

  • Cross-gender supervision.
  • Use of facilities—bathrooms, showers, etc.
  • Search procedures.
  • Undressing.

Following is a list of questions to ask about an agency’s privacy and safety policy for inmates:

Privacy and Safety Policy Checklist

YES

NO

Does the agency practice cross-gender supervision of inmates or residents? Explain your answer.

 

 

Does the agency policy address levels of staffing and supervision?

 

 

Does the agency policy address the safety and privacy needs of LGBTI inmates or residents in regard to toileting, showering, and sleeping?

 

 

Does the agency policy address how pat and strip searches of LGBTI inmates or residents are conducted?

 

 

Does the agency policy address search procedures and privacy needs of LGBTI inmates or residents?

 

 

Does the agency policy require that inmate or resident grievances be tracked, and does the agency collect and analyze information on grievances related to searches?

 

 

 

The key to developing sound policy in these areas is to focus on ways in which the facility can protect the privacy, dignity, and safety of LGBTI inmates or residents during all facility procedures. Policies should avoid subjecting transgender inmates or residents to unnecessary risk of physical and emotional harm. This may need to be done on a case-by-case basis where staff members work with the transgender inmate or resident to determine the best solution for accessing the bathroom, showering, changing clothing, submitting to searches, and drug testing that protects their privacy, dignity, and safety.

Download Checklist Download LGBTI Adults under Custodial Supervision Checklists

Sexual Abuse of LGBTI Inmates or Residents

It is important for agencies to recognize all elements of sexual behavior in custody and to have policies that manage these behaviors. Policies should also pay special attention to the LGBTI inmate’s or resident’s increased vulnerability to abuse, reporting mechanisms, investigations, and discipline, if necessary.

Following is a list of questions to ask about an agency’s sexual abuse policy for inmates:

 Sexual Abuse Policy Checklist

YES

NO

Does the agency policy prohibit the sexual abuse of inmates or residents in custody?

 

 

Does the agency policy stipulate that staff must receive training regarding the sexuality and sexual behaviors of inmates or residents?

 

 

Does the agency policy require the investigation of all reports of violations of policy regarding sexual abuse?

 

 

Does the agency have multiple methods for inmates or residents to report sexual abuse, including avenues for third-party, independent reporting?

 

 

Does the agency policy address the management of inmates or residents who report allegations of sexual abuse?

 

 

Do the agency inmate or resident disciplinary procedures address discipline for those who have sustained violations of recanting previous allegations?

 

 

Does the agency policy define the roles and responsibilities of the investigative process into allegations of sexual abuse?

 

 

Does the agency policy (or the investigative entity’s policy) require referral of allegations of potential criminal activity for review by the prosecutor?

 

 

Does the agency policy require a review of reports and investigations of sexual abuse?

 

 

Does the agency policy establish a sexual assault response team (SART)?

 

 

Do the agency protocols provide for ongoing medical and mental health care for an inmate or resident who has been sexually victimized while in custody?

 

 

Does the agency policy recognize particularly vulnerable populations, such as LGBTI inmates or residents, and specify treatment for them?

 

 

In correctional settings, there is a continuum of sexual behaviors that may include nonabusive or abusive sexual contact. It is important that agencies recognize this continuum of sexual behaviors in custody, have policies that reflect the continuum, and pay special attention to the increased vulnerability of LGBTI inmates or residents.

Download Checklist Download LGBTI Adults under Custodial Supervision Checklists

 

Endnotes


[144] Adults who are in pre-trial detention and have not been convicted of a crime are entitled to the higher level of protection that is provided to juveniles in facilities under the 14th Amendment Due Process Clause. Adults in pre-trial detention should not be placed in conditions that amount to punishment or be stigmatized or humiliated while detained. See, Bell v. Wolfish, 441 U.S. 520, 539 (1982).

[145] Thomas v. District of Columbia, 887 F. Supp. 1, 4 (D.D.C. 1995). See also, Montero v. Crusie, 153 F. Supp. 2d 368, 378 (S.D.N.Y. 2001).

[146] See, Farmer v. Brennan, 511 U.S. 825 (1994) (explaining prison officials permitting the beating or rape of one person by another serves no legitimate penological objective and is outside of evolving standards of decency).

[147] Farmer v. Brennan,at 843.

[148] Farmer v. Brennan.

[149] See, Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 87 (6th Cir. 1995) (knowledge of an inmate’s “feminine mannerisms or homosexual orientation” put official on notice of risk of physical and sexual assault).

[150] See, Green v. Bowles, 361 F.3d 290, 294–95 (6th Cir. 2004) (transsexual victim had raised a triable issue of fact as to deliberate indifference “because of her status as a vulnerable offender”).; Johnson v. Johnson, 385 F.3d 503, 527 (5th Cir. 2004) (finding a deliberate indifference claim where prison officials continued to house a gay person in the general population where he was gang raped and sold as a sexual slave for over 18 months).

[151] Green, 361 F.3d at 294.

[152] See, Estate of DiMarco v. Wyoming Dept. of Corr., 473 F.3d 1334, 1342–43 (10th Cir. 2007) (finding segregation of person with an intersex condition was permissible because it was primarily to protect her; the prison had not previously dealt with an intersex person; alternatives such as transfer were impracticable; person was not denied access to all programs or services; and her segregation was regularly and meaningfully reviewed).; Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).; Farmer v. Carlson, 685 F. Supp. 1335 (D. MD 1988) (finding temporary segregation of transgender person awaiting transfer to another facility was not unconstitutional).

[153] Murray v. U.S. Bureau of Prisons, 106 F.3d 401, *2 (6th Cir. 1997) (table of unreported decisions).

[154] Estelle v. Gamble, 429 U.S. 97 (1976).

[155] Long v. Nix, 877 F. Supp. 1358 (S.D. Iowa 1995).

[156] See, Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (assuming without deciding that GID presents a serious medical need).; De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003).; Praylor v. Texas Dept. of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005) (assuming without deciding that GID presents a serious medical need).; Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th Cir. 1991), aff’d. 731 F. Supp. 792 (W.D. Mich.1990).; Meriwether, 821 F.2d at 413 (GID is “a very complex medical and psychological problem,” there is “no reason to treat [GID] differently than any other psychiatric disorder.”).; White v. Farrier, 849 F.2d 322, 325–327 (8th Cir. 1988).; Allard v. Gomez, 9 F. Appx. 793, 794 (9th Cir. 2001).; Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995). No circuit has held otherwise.

[157] See, Praylor v. Texas Dept. of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005) (denying relief because of absence of evidence of medical necessity in inmate’s specific case).; Murray,106 F.3d at 401 (refusing to second-guess appropriateness of hormone dosage levels determined by physician).; See, De’Lonta, 330 F.3d at 635 (finding that the Prozac prescribed to the plaintiff was not clearly provided to her for the purpose of treating GID needs, nor was it a reasonable method for addressing these needs).; Kosilek v. Maloney, 221 F. Supp. 2d 156, 188 (D. Mass. 2002) (concluding that pharmacological evaluation does not constitute treatment for plaintiff’s GID).

[158] Allard v. Gomez, 9 Fed. Appx. 793, 795 (9th Cir. 2001) (holding that denial of medical care based on a blanket rule constitutes deliberate indifference).

[159] Kosilek v. Maloney, 221 F. Supp. 2d 156, 162 (D. Mass. 2002).

[160] Young v. Adams,693 F. Supp.2d 635, 641 (W.D. Tex. 2010).

[161] Fields, 2011 WL 3436875, at *7 (quoting district court). See also, Barrett v. Coplan 292 F. Supp. 2d 281, 286 (D. N.H. 2003) (holding plaintiff stated claims upon which relief may be granted by alleging defendants denied her medical care based on a policy that prohibited hormone treatment for GID).; Houston v. Trella, No. 04-CV-1393, 2006 WL 2772748 at 8 (D.N.J. Sept. 25, 2006) (holding that plaintiff in immigration detention has a viable claim if decision to deny hormone therapy was based on a non-medical reason such as an existing policy).; Kosilek,221 F. Supp. 2d at186 (D. Mass. 2002) (finding policy that precludes possibility that plaintiff will ever have hormone treatment initiated, when hormone treatment is a professionally recognized form of treatment that may be necessary for people diagnosed with GID, may be found to violate the 8th Amendment).

[162] Brooks v. Berg, 270 F. Supp. 2d 302 (N.D.N.Y. 2003), vacated in part on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003). Two courts have found that such “freeze-frame” policies do not amount to a violation of Equal Protection. See, Oz’etax v. Ortiz, 170 Fed. Appx. 551 (10th Cir. 2006).; Farmer v. Hawk-Sawyer, 69 F .Supp. 2d 120 (D.D.C. 1999). These cases have no bearing on prisons’ duty to provide adequate medical care for inmates with GID under the 8th Amendment.

[163] Barrett, 292 F.Supp.2d at 286 (finding plaintiff asserted sufficient facts to state a claim based on prison not prescribing any of the treatments enumerated in the professionally recognized standards of care for GID).; Kosilek, 221 F. Supp. 2d at 161, 167 (finding that because plaintiff was only seen by social worker and psychiatrist who did not have experience diagnosing GID, “qualified physicians have never evaluated” plaintiff and thus there was no individualized medical evaluation).

[164] See, Kosilek, 221 F. Supp. 2d at 191; Tates v. Blanas, No. S-00-2539, 2003 WL 23864868, *10 (E.D. Cal. Mar. 11, 2003) (officials could not deny transgender woman a bra where they failed to balance security risks against medical needs, and where other women were issued bras).; Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011).

[165] Kosilek, 221 F. Supp. 2d at 182.

[166] See, Estelle v. Gamble, 429 U.S. 97 (1976).

[167] Konitzer v. Frank, 711 F.Supp.2d 874, 908 (E.D. Wis. 2010).

[168] See, Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010) (holding that prison officials’ denial of plaintiff’s requests for makeup, women’s undergarments, and facial hair remover might give rise to an 8th Amendment violation for deliberate indifference to a serious medical need, given that such elements of expression/presentation were part of the “real life experience” prescribed by the Standards of Care).

[169] See generally, WPATH, Standards of Care.

[170] Konitzer, 711 F. Supp. 2d at 874; Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000), aff‟d, 2000 WL 33342399 (Mass. Appl. Ct. Nov. 30, 2000).; Logan v. Gary Community School Corp., No. 2:07-CV-431, 2008 WL 4411518 (N.D. Ind. Sept. 25, 2008). Other courts have held that in the prison context these expressive interests can be curtailed for a legitimate penological purpose.; Turner v.Safley, 482 U.S. 78 (1987).

[171] Lamb v. Maschner, 633 F. Supp. 351 (D. Kan. 1986).

[172] Kosilek, 221 F. Supp. 2d at 874.

[173] Kosilek.

[174] De'Lonta v. Johnson, 2011 WL 5157262 (W.D. Va. Oct 28, 2011).

[175] De'Lonta v. Johnson, 2013 WL 310350 (4th Cir. 2013).

[176] Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990).

[177] Turner v. Safely, 482 U.S. 78 (1987).

[178] Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002) (emphasis in original) (transgender woman was regularly searched in full view of other inmates whenever she returned from the common area). Other courts are in accord.; Mays v. Springborn, 575 F.3d 643 (7th Cir. 2009).; Hayes v. Marriott, 70 F.3d 1144 (10th Cir. 1995).; Elliott v. Lynn, 38 F.3d 188 (5th Cir. 1994).; Cornwell v. Dahlberg,963 F.2d 912 (6th Cir. 1992).; Franklin v. Lockhart, 883 F.2d 654 (8th Cir. 1989).; Michenfelder v. Sumner,860 F.2d 328 (9th Cir. 1988).

[179] 821 F.2d 408 (7th Cir. 1987).

[180] 821 F.2d 408 (7th Cir. 1987).

[181] Doe v. Sparks, 733 F. Supp. 227, 232–34 (W.D. Pa. 1990)

[182] Whitmire v. State of Arizona, 298 F.3d 1134 (9th Cir. 2002).

[183] California Department of Corrections and Rehabilitation,“Visiting a Friend or Loved One in Prison,” 3 http://www.cdcr.ca.gov/Visitors/docs/InmateVisitingGuidelines.pdf.

[184] Mississippi Department of Corrections, http://www.mdoc.state.ms.us/conjugal_visits.htm[The Mississippi Department of Corrections no longer offers conjugal visits, effective February 1, 2015.]

[185] See, Phelps v. Dunn, 965 F.2d 93, 100 (6th Cir. 1992) (holding that a genuine issue of material fact existed as to whether a gay person alleging he was denied permission to attend religious services was denied because he was gay).

[186] See, Kelley v. Vaughn, 760 F. Supp. 161, 163–64 (W.D. Mo. 1991) (denying prison’s motion to dismiss on the ground that a gay person, bringing an action against the prison’s food service manager to challenge his removal from his job as bakery worker, might have a valid equal protection claim).; Johnson v. Knable, 862 F.2d 314 (4th Cir. 1988)(vacating lower court’s summary judgment dismissal of an equal protection claim brought by a gay person noting that “[i]f [the plaintiff] was denied a prison work assignment simply because of his sexual orientation, his equal protection rights may have been violated”).

[187] See, Howard v. Cherish, 575 F. Supp. 34, 36 (S.D.N.Y. 1983) (a gay person who claimed he was punished because he was gay would have had a claim under § 1983 if he had been able to show that he was discriminated against solely because of his sexual orientation).

[188] See, Powell v. Shriver, 175 F.3d 107 (2d Cir. 1999). See also, Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001) (holding that inmates have a privacy interest in HIV status).

[189] Powell, 175 F.3d at 113–14.

[190] Powell v. Shriver, 175 F.3d 107 (2d Cir. 1999).

[191] Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989).

[192] See, Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999) (upholding regulations prohibiting people from possessing sexually explicit materials on grounds that regulation was “reasonably related to legitimate penological interests”).; Allen v. Wood, 970 F. Supp. 824, 831 (E.D. Wash. 1997) (granting defendant prison’s motion for summary judgment on ground that prison regulations prohibiting certain sexually explicit materials satisfied the reasonable relation standard).

[193] 28 C.F.R § 115.41(c)(7) (2012).

[194] 28 C.F.R. § 115.41(g).

[195] 28 C.F.R. § 115.41(g).

[196] 28 C.F.R. § 115.41(g).

[197] 28 C.F.R § 115.42(c).

[198] 28 C.F.R § 115.42(e).

[199] 28 C.F.R § 115.42(d).

[200] 28 C.F.R. § 115.15(e).

[201] 28 C.F.R § 115.15(d).

[202] 28 C.F.R § 115.15(e).

[203] 28 C.F.R § 115.31(a)(9).

[204] 28 C.F.R § 115.78(g).

[205] 28 C.F.R § 115.86(d)(2).

[206] Lockup means a facility that contains holding cells, cell blocks, or other secure enclosures that are: (1) Under the control of a law enforcement, court, or custodial officer; and (2) primarily used for the temporary confinement of individuals who have recently been arrested, detained, or are being transferred to or from a court, jail, prison, or other agency. 28 C.F.R § 115.5.

[207] 28 C.F.R § 115.141(c).

[208] 28 C.F.R § 115.141(d)(3).

[209] 28 C.F.R. § 115.15(d).

[210] 28 C.F.R. § 115.15(d).

[211] 28 C.F.R § 115.115(e).

[212] 28 C.F.R § 115.186(c)(2).

[213] Community confinement facility means a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community correctional facility (including residential reentry centers), other than a juvenile facility, in which individuals reside as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision, while participating in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during nonresidential hours. 28 C.F.R § 115.5.

[214] 28 C.F.R § 115.241(d)(7).

[215] 28 C.F.R § 115.241(g).

[216] 28 C.F.R § 115.242(c).

[217] 28 C.F.R. § 115.242(f).

[218] 28 C.F.R § 115.241(c).

[219] 28 C.F.R § 115.242(d).

[220] 28 C.F.R § 115.242(e).

[221] 28 C.F.R § 115.242(e).

[222] 28 C.F.R § 115.215(f).

[223] 28 C.F.R § 115.278(g).

[224] 28 C.F.R § 115.286(d)(2).

[225] See, supra note 110.

[226] 28 C.F.R § 115.41(c)(7).

[227] Transgender women are not cross-dressers or drag queens. Drag queens are men, typically gay men, who dress like women for the purpose of entertainment. Be aware of the differences between transgender women, cross-dressers, and drag queens. Use the term preferred by the individual. Do not use the word "transvestite" at all, unless someone specifically self-identifies that way.