POLICY RECOMMENDATIONS TO ENHANCE THE SAFE AND SECURE MANAGEMENT OF FEDERALLY INCARCERATED TRANSGENDER INMATES by Erika Eastman Bachelor of Arts Degree, Criminal Justice 2008 MAJOR PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS (CRIMINAL JUSTICE) In the School of Criminology and Criminal Justice © Erika Eastman, 2018 UNIVERSITY OF THE FRASER VALLEY Winter Year All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author. Approval Name: Erika Eastman Degree: Master of Arts (Criminal Justice) Degree Title: Policy Recommendations to Enhance the Safe and Secure Management of Federally Incarcerated Transgender Inmates Examining Committee Amy Prevost, PhD GPC Chair Associate Professor, School of Criminology and Criminal Justice ____________________________________________________________ Amanda McCormick, PhD Senior Supervisor Associate Professor, School of Criminology and Criminal Justice ____________________________________________________________ Corinne Justason External Examiner Deputy Warden Correctional Service of Canada ____________________________________________________________ Date Defended/Approved: April 19, 2018 ii Abstract Transgender inmates placed in correctional institutions that correspond to their existing biology are vulnerable to sexual harassment or assault by staff and inmates alike. Further, there is a distinct lack of empirical research regarding ‘best practices’ for managing transgender inmates within correctional authorities in Canada and the United States. The recent approval of Bill C-16 (2016), An Act to amend the Canadian Human Rights Act and the Criminal Code added gender identity and gender expression to the list of prohibited grounds of discrimination in Canada. The approval of Bill C-16 (2016) has forced the Correctional Service of Canada (CSC) to revise several policies for transgender inmates; however, producing forced policies may not fully address the individual needs and overall safety considerations of transgender inmates. This paper provides an analysis on the institutional management and treatment of transgender inmates in North American institutions and suggests recommendations to the CSC to further enhance the safety and security for housing transgender inmates. iii Acknowledgements I wish to thank my committee members who were more than generous with their expertise and precious time. A special thanks to Dr. Amanda McCormick, my supervisor, for her countless hours of reflecting, reading, encouraging, and most of all, patience throughout this entire process. Her excitement and willingness to provide feedback at any time made the completion of this research an enjoyable experience. I would like to acknowledge and thank my school division for allowing me to conduct my research and providing any assistance requested. Special thanks to all the members of the School of Criminology and Criminal Justice at the University of the Fraser Valley for their continued support. iv Dedication I dedicate my thesis to the LGBTQ2S community. I dedicate this work to help protect and improve the lives of those who identify within the LGBTQ2S community, particularly transgender people. I dedicate this work and give special thanks to all of my family and friends, particularly my good friend River Mayes. “The vision that many of us have of each other is one of division. It is informed by misunderstanding and misconception. What we know of each other is often at best superficial, at worse, malicious” (Bissoondath, 1994). This outlook is extremely evident among the perceptions and treatments of transgender individuals under the applications of the criminal justice system, particularly those incarcerated. It is a societal responsibility to provide fair treatment to all human beings, regardless of past behavior or gender identity – and it is our duty to continually improve our understanding and delivery of justice. Progress for all people does not begin with hate and discrimination; it begins with education and tolerance. v Table of Contents Abstract ................................................................................................................................................... iii Acknowledgements............................................................................................................................ iv Dedication ................................................................................................................................................ v Introduction ............................................................................................................................................ 1 Important Definitions .......................................................................................................................... 4 Criminalization of Transgender Individuals.............................................................................. 6 Literature Review ................................................................................................................................. 9 Classification and Correctional Policies ............................................................................................ 12 Penitentiary Placement and Housing Conditions .......................................................................... 15 The (over) Use of Administrative Segregation................................................................................. 22 Treatment and Health Care....................................................................................................................... 26 Victimization and Stigmatization ........................................................................................................... 28 Policy Revisions within the CSC ................................................................................................. 33 Short Term Recommendations .................................................................................................... 39 i. ii. Recording Transgender Inmates .................................................................................................. 39 Improving Communication and Training for Staff ................................................................ 41 Long Term Recommendations ..................................................................................................... 43 i. ii. iii. Development of Trans-Units .......................................................................................................... 43 Management and Treatment Plan ................................................................................................ 45 Development of a Risk Assessment Tool ................................................................................ 47 Conclusion ............................................................................................................................................ 49 References ............................................................................................................................................ 53 vi Introduction For most prisoners, incarceration is a violent, coercive experience. However, transgender prisoners experience violence and coercion to a much more heightened degree (Smith, 2012; Tarzwell 2006). Specifically, transgender inmates are considerably more likely to be sexually assaulted in prison than their non-transgender counterparts (Jenness, 2010; Jenness 2008; Jenness and Smyth, 2007; Jenness, Maxson, Sumner, Matsuda, 2010; Kuchinski, 2015; Smith, 2012; Tarzwell, 2006). Administrative segregation therefore, has consistently been used as a ‘best practice’ in managing transgender inmates. Administrative segregation (also known as solitary confinement) has traditionally been used as a form of disciplinary punishment, involving different conditions and different time spans (Smith, 2008). Some countries have a practice of using segregation during pre-trial, while others isolate prisoners who are on death row. Another variant can be found in some prison systems where a number of prisoners, for example sex offenders, are allowed (or even encouraged) to choose voluntary segregation in order to protect themselves from other inmates (Smith, 2008). Generally, prisoners placed in administrative segregation spend around 23 hours in their cells each day, only interrupted by a short period of exercise, which is also typically carried out in isolation. Prisoners placed in administrative segregation suffer an extreme form of exclusion, which clearly supersede normal imprisonment (Smith, 2008). Unfortunately, while segregation quickly and effectively removes an inmate from danger or the threat of danger, it also allows for segregated prisoners to be isolated with predatory/assaultive staff, and with fewer witnesses and limited access to resources. Admitting transgender inmates into administrative segregation not only fails to adequately address the longer-term matter of institutional housing and manageability, it 1 also has aggravating psychological effects. Courts have recognized that long-term placement in administrative segregation is psychologically damaging (Fellner, 2006; Kupers, 2006; Metzner & Fellner, 2010; Sapers, 2014; and Smith, 2008). What makes this concerning is that many transgender inmates are already afflicted with mental health considerations (Clements-Nolle, Marx, & Katz, 2006). Transition often involves receiving a gender-related mental health diagnosis, such as Gender Dysphoria. As described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Gender Dysphoria involves a conflict between a person's physical or assigned gender, and the gender with which he/she/they identify (American Psychiatric Association, 2013). Individuals diagnosed with Gender Dysphoria are afflicted by the presence of “clinically significant distress” associated with the condition (American Psychiatric Association, 2013), and individuals diagnosed with Gender Dysphoria are reportedly at increased risk for suicide (American Psychiatric Association, 2013). Still, it is important to note that not all transgender people suffer from Gender Dysphoria. As described in the World Professional Association for Transgender Health report (2011), “a disorder is a description of something with which a person might struggle, not a description of the person or the person’s identity” (World Professional Association for Transgender Health, 2011, p.5). Therefore, transgender, transsexual, and gender non-conforming individuals are not inherently “disordered”. The distress, when present for some individuals, is the concern and may be diagnosable and require treatment (World Professional Association for Transgender Health, 2011). While many doctors require this diagnosis before providing hormones or surgical treatment, the diagnosis itself has been criticized for categorizing naturally occurring 2 gender variance as pathological (Grant, Mottet, Tanis, Harrison, Herman, & Keisling, 2011). The diagnosis of Gender Dysphoria itself is also associated with high levels of stigmatization, discrimination, and victimization, contributing to negative self-image and increased rates of other mental health disorders (American Psychiatric Association, 2013). What is apparent is that the issue is complicated. Transgender prisoners need a clinical diagnosis in order to get access to treatment and therapy, yet such a diagnosis provides opportunities for stigmatization, discrimination, and isolation, which can exacerbate pre-existing mental health conditions. In the absence of appropriate correctional policies specifically addressing the sensitive needs of transgender individuals in such a gendered system, transgender prisoners are routinely forced into dangerous placements, and often denied access to treatment and services (Rough, Abess, Makin, Stohr, Hemmens & Yoo, 2017; Tarzwell, 2006). Further, a lack of education and training, as well as respect for transgender inmates and their needs, leads to a purposeful and often intentional victimization that does not serve a legitimate penological interest, nor does it promote prison control or safety (Rough et al., 2017). Addressing all of these factors and creating guidelines for correctional authorities on the management of transgender inmates will effectively contribute to both the safety and security of the individual and the institution. Recently in Canada, new human rights legislation was passed for transgender people. The passing of Bill C-16 (2016) on June 19th, 2017, made changes to the Criminal Code and the Canadian Human Rights Act. Specifically, the Criminal Code has been changed to explicitly add “gender identity or expression” to the list of prohibited 3 grounds of discrimination. Decisions made about offenders housed within institutions under the CSC must take into account their rights under the Canadian Human Rights Act; and therefore, must not discriminate against them based on gender identity or expression. This is a progressive step for correctional authorities, however, there are some outstanding considerations that ought to be further examined to ensure the most appropriate measures are taken to respect the dignity, rights and the safety and security of all offenders. As noted in the most recent Annual Report by the Office of the Correctional Investigator, “in the context of federal correctional policy and practice, there does not appear to be a very deep understanding or appreciation for what the terms “gender identity” and “gender expression” actually mean” (Zinger, 2017, p.17). Therefore, it is essential to examine what ‘best practices’ correctional authorities can adopt to ensure they meet their responsibility to house transgender prisoners in a safe, secure, and humane environment. The correctional system therefore, must be gender sensitive. Important Definitions It is critical to define and understand the term “transgender.” In its most basic form, being transgender simply means that an individual has an, ‘“enduring, pervasive, compelling desire to be a person of the opposite sex” (Smith, 2012, p. 693). At birth, individuals are identified as male or female according to their external genitalia (Bishop & Myricks, 2004). Gender identity, a person’s internal sense of being male or female (Taylor, 2007) is another important characteristic. Gender identity is measured on a continuum between female and male (Eyler & Wright, 1997), and is described as being “hardwired into the brain at birth” (Rudacille, 2005, p. 292). It is important to note that gender identity is different from sexual orientation. Sexual orientation refers to a 4 person’s attraction to men and/or women. Transgender identity, therefore, is distinguishable from sexual orientation (Smith, 2012; Taylor, 2007). According to the DSM-5 (2013), transgender is a non-medical term that has been used increasingly as an umbrella term, describing individuals whose gender identity (inner sense of gender) or gender expression (outward performance of gender) differs from the sex or gender to which they were assigned at birth. In addition, new terms such as genderqueer, bigendered, and agendered are becoming increasingly more common (American Psychiatric Association, 2013). Simply put, the term transgender is generally used to describe individuals whose expression of gender does not match the biological sex that the individual was assigned at birth. Scientific research demonstrates that being transgender is an “immutable trait”, meaning, gender identity is likely formed during gestation at a neurobiological level (Smith, 2012). In 2006, an open letter by the Gender Identity Research and Education Society publicized the results of a study indicating that transgender identity may have a biological cause and is a neuro-developmental condition. The researcher’s findings indicated that there is a specific part of the brain that when examined in male-to-female (MTF) transgender individuals, is the same size as a biological female (Smith, 2012). This finding is extremely indicative of a neuro-developmental cause for transgender identity, as the size of the relevant brain structure in the bed nucleus of the stria terminalis (known as the BSTc) portion of the hypothalamus is two times larger in females than it is in males. Therefore, this suggests that MTF transgender individuals have a component of their brain that is indicative of female biology. The BSTc is 5 responsible for sexual feelings and behavior, making the theory behind its relevance to gender identity even more probable (Smith, 2012). Scientific advancements in this field have resulted in changes to the medical categorizations of non-binary gender identities, demonstrating how provisional the understandings of transgender identity actually are. In 2013, the DSM-5 replaced the dated diagnosis of Gender Identity Disorder (GID) with Gender Dysphoria to describe the psychology of being transgender (Moran, 2013). It is important to note that there are extensive understandings of what transgender means, and individuals who qualify as transgender exist beyond the medical community. However, for the purposes of this paper, the principal focus of being transgender is the distinction between gender and sex, and how within most correctional authorities, there is no distinction when classifying inmates. As one researcher explained, “advocates for transgender rights contend that the relationship between sex and gender is inverted from the traditional understanding…advocates claim that gender is not an expression of biological sex, but that biological sex is merely an aspect of gender” (Smith, 2012, p. 717). Established and continuing scientific evidence supports the argument that gender identity is a pre-social fixed category (Smith, 2012; Sumner & Sexton, 2014). However, with few exceptions, sex-segregation has been, and continues to be, a prevailing foundation of the management of prisoners (Sumner & Sexton, 2014). Criminalization of Transgender Individuals It is important to examine how transgender offenders come under the applications of the criminal justice system, prior to their incarceration. Given transgender people are disproportionately low-income, they often face consequences for “quality-of-life” crimes, such as sleeping in public places (Peek, 2004). Transgender 6 persons often spend time in jail following arrests for false pretenses, such as entering the “wrong” bathroom, or for failure to produce “proper” identity documents (Grant et al., 2011; Peek, 2004). In 2011, the National Gay and Lesbian Task Force and the National Center for Transgender Equality published a study consisting of 6,450 transgender and gender non-conforming participants nation-wide in the U.S., who answered questions regarding the discrimination and injustice experienced in their lives. With respect to the key findings in the police and incarceration category, researchers found that 7% of transgender respondents reported being held in a cell - due to their gender identity/expression - alone. These rates substantially increased for Black (41%) and Latino/a (21%) transgender respondents (Grant et al., 2011). The difficulties in obtaining legal work, employment discrimination, and the high cost of gender-confirming surgeries has subjected some transgender individuals to engage in illegal activity and so-called survival crimes, such as sex work (Peek, 2004; Rosenblum, 2000). Further, there is a common assumption among American police officers that transgender women are all sex workers, resulting in high levels of surveillance, harassment, invasive searches, arrests, and prosecutions (Grant et al., 2011). Spade (2008) examined how transgender individuals also face discrimination in many other areas, including their access to housing and welfare services. Many welfare facilities, such as drug treatment programs, homeless shelters, and shelters for victims of domestic violence, are segregated by sex/gender, and therefore often “miscategorize or exclude transgender people” (Spade, 2008, p.775). From a Canadian context, the literature is even more limited and outdated, but similar in findings. One study conducted by Josephson and Wright (2000) eighteen 7 years ago estimated that between 25% and 40% of homeless youth identify as lesbian, gay, bisexual, transgender, transsexual, queer, questioning, and 2-Spirit (LBTQ2S). Shelters and support services are meant to provide support and safety to all young people, however LGBTQ2S youth reported feeling safer on the streets than in shelters, due to homophobic and transphobic discrimination and violence within the shelters perpetrated by fellow shelter users (Abramovich, 2017; Denomme-Welch, Pyne, & Scanlon, 2008). Transgender youth, especially young transgender women of colour, are among the most discriminated against groups in the shelter system, often dealing simultaneously with transphobia, homophobia, and racism (Quintana, Rosenthal, & Krehely, 2010). Transgender women frequently experience extreme marginalization and discrimination in the shelter system and on the streets, based on their gender and sexual identity, and race, class, and age (Abramovich, 2017). Transgender men have also reported feeling unsafe and unwelcome in both men’s and women’s shelters, due to uninformed staff and residents, and an absence of policies that include and protect transgender people (Denomme-Welch, Pyne & Scanlon, 2008). Transgender people of colour in the U.S. experience particularly high rates of police discrimination and victimization. In their study, Grant et al., (2011) asked transgender respondents whether they had been harassed, physically assaulted, or sexually assaulted by police officers because they were transgender or gender nonconforming. The results indicated higher rates of harassment reported by Black (38%), multiracial (36%) and Asian (29%) transgender respondents. Specifically, the researchers found that 38% of Black respondents who had contact with the police experienced harassment; 15% of Black respondents were physically assaulted by police 8 officers; and 7% of Black respondents were sexually assaulted by police officers. Transgender people of colour experience multiplicative disadvantages overall, including higher rates of unemployment, housing discrimination, and police harassment than Caucasian transgender people (Grant et al. 2011). The continuation of racialized income and wealth disparities indicates that race and class dynamics are intertwined within the transgender community. Systemic factors, such as poverty, stigma, and discrimination demonstrate the necessity for changes within the police and court systems, in order to reduce the number of transgender inmates from even entering the correctional system (Peek, 2004). Literature Review A report by The Pew Center On the States (2008) revealed that more than one in every 100 adults is now confined in an American jail or prison (Sexton, Jenness, & Sumner, 2010). Among the millions of people currently incarcerated in the U.S., transgender inmates have become increasingly more visible (Sexton et al., 2010). Researchers have estimated that transgender prisoners number in the thousands nationwide in the U.S. (Peek, 2004). However, as Rosenblum (2000) provided, a precise calculation of the transgender prison population is difficult to determine, as limited statistical studies prevent any accurate population-based estimates. The problem is further exacerbated by the likelihood of concentrated transgender populations in certain cities and areas of the country, and the fluidity of individual transgender identity (Rosenblum, 2000). For example, Rosenblum (2000) noted that there were seventy prisoners on hormone treatments in New York State prisons, and seventeen in the New York City prisons. Based on those figures at that time, a vague 9 estimate that transgender prisoners number in the low thousands nation-wide was calculated. However, given the increased number of mass incarceration rates in the U.S., it is likely this number has increased. Arcelus, Bouman, Van Den Noorgate, Claes, Witcomb, and Fernandez-Aranda (2015) recently conducted a systematic review of international research regarding transgender populations, making use of 12 different studies providing prevalence data. The data came from different sources, but every case concerned individuals who were intending to undergo, were undergoing, or had undergone gender affirming healthcare. In their study, Arcelus et al., (2015) reported prevalence figures of 4.6 transgender people in every 100,000 individuals (1 in every 21739 people), with 6.8 transgender women in every 100,000 birth-assigned males (1 in every 14706), and 2.6 transgender men in every 1000,000 birth-assigned females (1 in every 38461). At present, the U.S. prison population reportedly consists of 2.2 million adults (Travis, Western & Redburn, 2014), and the Canadian federal prison population reportedly consists of 14,615 adults (Sapers, 2016). Growing numbers are evident, and when contextualized from a prison perspective, it is apparent that more empirical-based research is needed in order to appropriately track and record for this increasing population. The overall incarceration experience of transgender offenders draws many parallels to women offenders; that is, both groups are subjected to higher levels of discrimination, marginalization, stigmatization, sexual exploitation, sexual assault, physical abuse, verbal abuse, improper medical treatment (or medial neglect), and the overuse of administrative segregation, simply based on their biology (Auerhahn & 10 Dermody Leonard, 2000). Institutions and correctional programs have historically been built to suit men’s needs and then adapted slightly, or not at all, to meet the needs of other inmate populations. Therefore, correctional authorities must reflect an understanding of the psychological development of transgender individuals and incorporate the therapeutic needs to address and prevent discrimination, victimization, and abuses. Creating an institutional environment which is supportive and sensitive to the individualized medical, psychological, social, economic, political, and cultural needs will aid in the campaign to provide equitable treatment of transgender inmates. Given the similarities, correctional authorities can look to existing policies and guidelines for managing women offenders in order to create or revise existing policies and protocols for transgender offenders. It is hoped that exploring current policies and practices, and determining what is and is not effective, will assist in the understanding of this frequently misunderstood population. Without a doubt, the prison experiences of a transgender inmate include many struggles not common with the average inmate, a premise that is evidence-based. Several casual themes emerge throughout the academic literature, and each will be explored individually: correctional policies (Erni, 2013; Sapers, 2014; Sapers, 2015; Smith, 2012; Sumner & Sexton, 2014); penitentiary placement and housing conditions (Hagner, 2010; Sapers, 2015); over-use of administrative segregation (Lee, 2003; Tarzwell, 2006); treatment and health care (Jenness, 2010; Jenness, Maxson, Sumner, & Matsuda, 2010; Tarzwell, 2006); and victimization and stigmatization (Hagner, 2010, Tarzwell, 2006). 11 Classification and Correctional Policies The prison’s uniformed treatment of transgender inmates begins with a genitaliabased classification policy. Genitalia-based classification draws an arbitrary line over the complex issue of gender identity (Peek, 2004; Tarzwell, 2006). While it offers prison officials the short-term benefit of not having to deal with the question of what makes someone male or female, in the long run, it creates significant safety issues and increases the individual’s liability. As long as genitalia-based placement continues, governments have adopted a de facto policy of putting transgender individuals at risk of physical harm (Peek, 2004). Smith (2012) explored how confusing and perilous the complexities of genitaliabased classification of transgender inmates can actually be. For example, classification based on genitalia causes many pre-operative MTF transgender inmates to be classified as males, even though they may be receiving hormone therapy and have developed breast tissue. As the research demonstrates, classifying a MTF transgender inmate as a male and placing her in a male institution often leads to violence and abuse (Jenness, 2010; Jenness et al., 2010; Kuchinski, 2015; Smith, 2012; Tarzwell, 2006). As a result of this heightened risk of violence and abuse, prison officials commonly separate transgender inmates from the general population by housing them alone in administrative segregation. Pemberton (2013) echoed this contention, providing that, “a genitalia-based placement policy is also likely to cause difficulties even among transgender people who have undertaken genital surgeries, because it assumes binary categories of sex/gender that conflict with the experiences of many transgender people and ignores the possibility that people may have nonnormative genitals” (Pemberton, 2013, p.163). For example, under the current genitalia-based system of sex 12 classification, it is not clear whether a transgender woman who had undergone a penectomy-surgery (removal of the penis), but not vaginoplasty-surgery (construction of a vagina), should be placed in a men’s or a women’s facility (Pemberton, 2013). Despite the number of civil law cases in the U.S. involving transgender plaintiffs, there continues to be little guidance for prison authorities in “how to” classify transgender inmates. Further, U.S. courts have been reluctant to demand that prison authorities actually change their system of classification in the interests of prisoner safety. In response, several U.S. transgender rights scholars have argued that transgender prisoners are ‘doubly imprisoned’; first, by the prevalent discrimination in the judicial system that clearly fails to give due legal recognition of transgender people’s right to dignity and self-identity, and second, by the often cruel and abusive mistreatment of transgender inmates while incarcerated (Erni, 2013). Complexities with correctional policies for transgender offenders extend beyond classification policies. Institutional rules that ignore transgender inmates’ rights of classification also ignore their rights in other prison procedures (Emerton, 2004). For example, strip searches and urinalysis testing of transgender inmates are often conducted by male officers. While these practices are a very necessary and vital means for the safety and security of the institution, reports of humiliation and embarrassment are prevalent among transgender inmates (Kuchinski, 2013; Tarzswell, 2006). Mandatory strip search and pat-downs required to enter and leave the institution can also serve as a direct form of victimization by correctional staff. Groping, unwanted, and unnecessary sexual contact by correctional staff further humiliate and victimize transgender inmates (Rough et al., 2017; Tarszwell, 2006). Correctional staff are 13 required to check all areas to ensure prison safety; however, in situations involving transgender prisoners, this practice becomes sexualized when correctional staff focus on certain bodily areas for extended periods of time, or by pressing the transgender inmate against the wall with their bodies (Gallagher, 2011; Scott, 2013). In addition to the derogatory comments and perceptions of transgender inmates, and the refusal by correctional staff to address transgender inmates by the pronoun which fits their gender identity, it is evident why correctional environments are endemic with victimization and discrimination (Faithful, 2009). The CSC recently revised policies on searching and urinalysis testing, by allowing inmates with gender considerations to request an officer of their gender preference to conduct the search or the urinalysis test (CSC, 2017). It is important to note that there are restrictions for safety, health or security reasons, as determined by the institution’s type (men’s or women’s) and security level. Inmates with gender considerations are also permitted to purchase effects from the catalogue for men and/or for women (CSC, 2017). In the U.S., some states have demonstrated progress in developing and implementing policies for transgender inmates. In 2008, then-Governor Patterson’s office announced an anti-discrimination policy that allowed transgender youth in New York detention centers to wear whatever uniform they chose, be referred to by whatever name they chose, and request and be considered for specialized housing (Sexton et al., 2010). In Washington D.C., the Department of Corrections issued a policy in 2010 on “Gender Classification and Housing” that allowed for housing placement according to gender identity (Sexton et al., 2010). In 2009 in California, Assembly Bill AB 382, An act 14 to amend Section 2636 of the Penal Code, relating to the Department of Corrections and Rehabilitation added sexual orientation and gender identity of the inmate or ward to the list of characteristics to be considered for classification (Jenness, 2009). Unfortunately, only a few U.S. states have actually adopted written policies addressing the management of transgender prisoners. A 2006 study of U.S. prisons regarding their management of transgender prisoners found that of the 44 states surveyed, only 7 had relevant written policies. Of the majority of states without any written policies, 26 had corrections personnel unwilling or unable to speculate as to how a transgender inmate should be treated in their facilities (Tarzwell, 2006). More often, the existing policies fail to guarantee safe, sensitive placement, or provision of genderaffirming medical care to transgender prisoners (Tarzwell, 2006). Correctional policies must extend beyond classification for transgender inmates; searching, urinalysis testing, personal effects, and access to medical treatment are all considerations that need to be reflected in the protocols for managing transgender inmates. Penitentiary Placement and Housing Conditions Housing transgender inmates at institutions of their biology, as opposed to their gender identification, is derived from both perceived and actual safety considerations. Genitalia-based classification of inmates puts MTF transgender prisoners at special risk for physical injury, sexual harassment, sexual battery, rape, and death, because, “the prison hierarchy subjugates the weak to the strong and equates femininity with weakness” (Peek, 2004, p. 1220). The report, Still In Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners (Coolman, Glover, & Gotsch, 2005) echoed this contention, providing, “sexuality is a key locus through which domination and subordination are constructed in prison; weak men are dominated and raped. 15 Sexual ‘deviants’ such as openly gay men, bisexuals, transvestites and transgender people, are ridiculed and reduced to lower status positions” (Coolman et al., 2005, p. 4). The report further highlighted a significant case in the U.S. involving a transgender plaintiff. The Supreme Court case of Farmer v. Brennan (1994) demonstrated how assigning inmates into sex-segregated facilities presents many challenges and human rights violations for transgender inmates. Plaintiff Dee Farmer was a pre-operative MTF transgender inmate who, prior to her incarceration, underwent breast augmentation. Within two weeks of being transferred to general population in a U.S. Penitentiary in Terre Haute in 1989, she was raped at knife-point by another inmate. Acting without a lawyer, Farmer filed a complaint in the U.S. District Court against the Federal Bureau of Prisons’ director, regional director, and several wardens and administrators, alleging that the defendants had violated her Eighth Amendment right to be free from cruel and unusual punishment. The District Court dismissed her claim, so she appealed to the U.S. Supreme Court. The American Civil Liberties Union (ACLU) was then appointed to represent her, and as a result, in 1994 the Supreme Court ruled unanimously that correctional officials have a responsibility to safeguard prisoners from violence perpetrated by other prisoners, vacated the lower court decisions, and reinstated Farmer’s lawsuit (Coolman et al., 2005). Unfortunately, another result from Farmer’s case was the legal standard known as “deliberate indifference” (Coolman et al., 2005). This requires that an official “knows of and disregards an excessive risk to prisoner health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exist, and she/he must also draw the inference” (Coolman et al., 2005, p.3). 16 Therefore, this “knowledge requirement” is a critical factor in determining correctional officials’ liability under the Eighth Amendment and can only be established if the “prisoner proves the official knew the prison was at risk of being assaulted” (Coolman et al., 2005, p.3). As such, this legal ruling has created a perverse incentive for correctional authorities to ignore problems and places the difficult burden on prisoner plaintiffs to prove that individual correctional officers had direct knowledge that they were at risk (Coolman et al., 2005). Providing thoughtful and sensitive housing alternatives for transgender inmates is crucial in order to ensure the safety and security needs of this population. Peek (2004) provided that New York, a state that tends to house greater numbers of transgender prisoners, attempted to reduce the risk of discrimination and harassment of transgender inmates by creating a ward to house gay prisoners and placing transgender prisoners with them. This option would indubitably impose greater financial hardship upon smaller institutions with fewer transgender prisoners; however, counter arguments suggested that if the transgender population in a given jurisdiction was too small, “the state could pool resources with other jurisdictions” (Peek, 2004, p. 1240). Although such an approach would likely reduce the risk of sexual assault and avoid problems of isolation associated with administrative segregation, it is uncertain who would qualify for placement in such wards. Namely, transgender inmates who are pre-operative, postoperative, or non-operative. Non-operative is described as, “those who live in society as their opposite gender, but who do not wish to change their biological sex, either because they feel the surgery is too expensive or too risky, or because they are happy with their bodies the way they are” (Peek, 2004, p.1218). Additionally, because many 17 transgender people spend a significant period of time in transition, they may not fit precisely into any of these categories at any given point in time (Grant et al., 2011). Given that the transgender community is so diverse and the experience of gender is so personal, some individuals prefer broad definitions over narrow ones. Peek (2004) also noted that gay and transgender prisoners are often lumped together in the New York prison system, and that prison authorities “conflated transgenderism and homosexuality” (Peek, 2004, p.1241), despite that gender identity is different from sexual orientation (Smith, 2012; Taylor, 2007). Similarly, L.A. County has been operating a jail system called “K6G” since 1985, with established units for inmates in need of specialized housing. The K6G units were designated for inmates who were veterans, had serious medical needs or physical disabilities, who were deaf or developmentally disabled, or who were seriously mentally ill. Among the K6G units, three dormitories existed for Men’s Central, a segregation unit that housed gay men and transgender women prisoners (Dolovich, 2011). However, the efforts of these dormitories were partial at best; inmates housed in these units were denied access to vocational and educational programming, visitation, medical and mental health care, and access to the law. Further, those detained in the unit were still subject to victimization and sexual predation (Dolovich, 2011). In order to gain access into the unit, all a would-be predator needed to do was alter his sexual orientation status to “homosexual” upon admission. After an ACLU lawsuit on behalf of all “homosexual inmates” challenged these conditions, the K6G units were enhanced, allowing inmates access to exercise, telephones, visitation, medical care, along with regular access to library services, and equal access to educational and vocational training programs 18 (Dolovich, 2011). Given the prevalence of such attitudes and the scarcity of prison resources in the U.S., it seems unlikely that these units would remain exclusive for homosexual and/or transgender inmates for long. This further demonstrates the need for more evidence-based research and the consideration of alternative housing options for transgender inmates. Another option for managing transgender populations, which has the ability to achieve both security and treatment as its common objective, is housing transgender inmates in a unit that focusses on elderly and infirm inmates with special medical needs (Kuchinski, 2015). These two populations are often less assaultive and generally more compliant with institutional expectations (Kuchinski, 2015). Similarly, Emerton (2004) examined housing transgender inmates with disabled populations under the Disability Discrimination Ordinance (DDO), making the appeal, “persons who have undergone gender reassignment surgery have incurred the partial or total loss of a part of their body, which is also included under the definition of disability in the DDO” (Emerton, 2004, p. 273). However, Emerton (2004) warns of the stigma by associating transgenderism with disability. Displacing transgender inmates to other vulnerable populations does not fully protect and prohibit transgender inmates from stigmatization and discrimination. Given the extensive experiences of stigmatization and discrimination reported by transgender inmates (Grant et al., 2011; Peek, 2004; Tarzwell, 2006), alternatives to housing ought to be mindful to not further contribute in this regard. Finally, another option is creating transgender-only institutions. In Italy, reformation of the prison system to adequately address the needs of transgender prisoners occurred in 2010. The Italian Department of Corrections opened a prison 19 specifically to house transgender prisoners. The Italian government refurbished a small facility that had previously been a women’s institution but had been unused for several years (Kuchinski, 2015). Evidently, the Italian Department of Corrections has demonstrated that there are options to managing this population, and it does not have to be congruent with the gender binary prison system currently in place in North America. A concern with having only one facility for transgender inmates is that it may incur undue hardship on inmates, such as geographic dislocation from family and community supports. For example, from 1934 to 2000, the maximum-security Prison for Women in Kingston, Ontario, was the only federal institution for women offenders in Canada (Creating Choices, 1990). All federal women offenders, regardless of security level or individual needs, were housed at the Prison for Women. Many of the women incarcerated at the Prison for Women had to bear the hardships of being separated from their communities and families. The deficiencies in the design of this prison hampered the CSC’s rehabilitation efforts for women offenders (Creating Choices, 1990). After several suicides and attempted suicides in the Prison for Women, the Task Force on Federally Sentenced Women was established in March 1989 to examine the correctional management of women offenders from the commencement of sentence to the date of warrant expiry, and to develop a policy and a plan which would guide this process in a manner which was responsive to the unique and special needs of women offenders (Creating Choices, 1990). By 2000, multiple policies and operational processes were made within the CSC, including the development of five regional 20 women’s institutions and one Aboriginal women’s healing lodge, and the closure of the Prison for Women in 2000 (Creating Choices, 1990). The incarceration of transgender inmates in men’s prisons consumes much of the current literature regarding transgender inmates in correctional environments. There is a marked absence of comparable attention of transgender prisoners in women’s facilities. Sumner and Sexton (2014) explored this incongruity; however, their research examined the assumptions and current understandings of what it means to be transgender in a women’s prison, specifically, prisoner culture and the roles inmates undertake while incarcerated. Sumner and Sexton’s (2014) research attempted to explain how gender transgression fits within the larger women’s prison culture but did not acutely discuss classification and housing needs of female-to-male (FTM) inmates. This demonstrates the scarcity in research dedicated towards the documented diversity of this group. Since the U.S. precedent-setting case of the 1994 Supreme Court’s ruling in Farmer v. Brennan, transgender inmates in some U.S. facilities have seen some progress toward humane treatment of transgender prisoners. However, sexual violence in custody is still an alarming reality for transgender inmates. Unquestionably, the research affirms that the common practice of housing transgender prisoners based on their genitalia alone creates a substantial risk of rape and prolonged sexual abuse at the hands of more aggressive and violent prisoners. From a security perspective, housing inmates based on their genitalia makes sense; however, this perspective does not allow room for subjective relativism. The definitions of gender identify and gender expression have evolved and are no longer exclusive to just “male” and “female”. Therefore, 21 correctional systems must reexamine the definition of sex, gender, and gender identity, to determine the legal rights that transgender people have, and how they should be appropriately accommodated while incarcerated (Rough et al., 2017). The (over) Use of Administrative Segregation Administrative segregation is an effective tool used in penitentiaries to separate an inmate in order to prevent association with other inmates. However, administrative segregation is commonly used to manage mentally ill offenders, self-injurious offenders, and those at risk of suicide (Fellner, 2006; Sapers, 2014). In the U.S., the mentally ill are disproportionately represented among prisoners in administrative segregation and often remain in segregation for prolonged periods of time (Fellner, 2006). Clinical research demonstrates that many inmates suffering from a serious mental illness (SMI) are generally consigned to long-term administrative segregation, yet the idleness and isolation of segregation tends to make psychiatric conditions and prognoses worse, and psychiatric symptoms can emerge in previously identified healthy inmates (Fellner, 2006; Kupers, 2006; Metzner & Fellner, 2010). Long-term segregation has very destructive psychological effects and has proven to worsen mental disorders and increase rates of suicide among inmates (Kupers, 2006; Smith, 2008). It is critical to examine the effects of administrative segregation on inmates with mental health conditions, which, as previously noted, includes Gender Dysphoria, because administrative segregation is consistently used as a ‘best practice’ in managing transgender inmates in the U.S. Almost universally, states without written policies place transgender inmates in the general population until a security problem arises, at which point the prisoner may be transferred to administrative segregation (Tarzwell, 2006). The practice of moving transgender inmates to administrative segregation when an 22 actual or perceived threat of violence becomes imminent (or after an assault occurs), only punishes and stigmatizes transgender inmates for their gender non-conformity, while failing to actually prevent future victimization (Tarzwell, 2006). For transgender inmates, placement in either the general population or administrative segregation may be "cruel and unusual”; yet states without written policies have failed to explore any alternatives (Tarzwell, 2006). While administrative segregation quickly and effectively removes inmates from general danger or the threat of danger, it also allows for segregated prisoners to be isolated with predatory/assaultive staff, and with fewer witnesses. Prison officials who resort to segregating transgender inmates from other inmates simultaneously cut off recreational, educational, occupational opportunities, and associational rights (Tarzwell, 2006). Faced with the possibility of prolonged isolation, boredom and loneliness, some transgender inmates may prefer to return to general population, despite the known safety concerns (Peek, 2004). Smith (2012) echoed these contentions, noting that U.S. prisons are often ill-equipped and understaffed, and resort to segregating transgender inmates either because of a lack of understanding about these populations, or a lack of resources to properly house them. Unaware of any other ways to manage this population, prisons often automatically segregate transgender inmates into isolation, where transgender inmates are denied basic resources (Smith, 2012). Tarzwell (2006) examined several U.S. litigation cases regarding the overuse of administrative segregation as a placement option. In Lamb vs. Maschner (1986), a transgender inmate requested to be transferred to a women’s prison in order for her to be protected from sexual harassment by means other than administrative segregation. 23 The court rejected her demand for a transfer and concluded that she had no right to any placement option other than administrative segregation or general population. Conversely, in Giraldo v. the California Department of Corrections and Rehabilitation (2007), Alexis Giraldo, a transgender parolee who served over two years in California prisons, sued the California Department of Corrections and Rehabilitation (CDCR) and individual prison staff members who allegedly allowed her to be serially raped by her male cellmates while in Folsom State Prison (Jenness, 2010). Giraldo argued that she was placed in a men’s prison without any regard for the obvious risk of sexual assault from the male prisoners she was housed with; that she endured daily beatings and brutal sexual assaults by her cellmate; that she begged for help from prison staff and was told to “be tough and strong”; and that she reported the injuries to doctors and therapists. Giraldo officially documented her situation and experiences and requested to be transferred to segregation; the request however, was denied (Jenness, 2010). Despite evidence to the contrary, lawsuits have demonstrated that many U.S. courts are simply unwilling to accept that penitentiary placements in general population or administrative segregation are cruel and unusual punishment for transgender inmates. Admitting transgender inmates into administrative segregation not only fails to adequately address the matter of institutional housing and manageability, it also has aggravating psychological effects on transgender inmates, as many transgender individuals are afflicted with a mental health condition. As described in the DSM-5 (2013), people whose gender at birth is contrary to the one with which they identify are often diagnosed with Gender Dysphoria. The critical element of Gender Dysphoria is the 24 presence of “clinically significant distress associated with the condition” (American Psychiatric Association, 2013). As previously described, administrative segregation has the potential to worsen existing mental health disorders (Fellner, 2006; Kupers, 2006); therefore, placing transgender inmates afflicted with a mental health condition in an environment which may aggravate already existing mental health considerations is counterproductive. Further, while diagnostic terms facilitate clinical care and access to insurance coverage that supports mental health, these terms can inadvertently have a stigmatizing effect. Automatic segregation serves a prison’s interests in terms of administrative ease because segregation is the simplest and least time-consuming solution for prison officials (Smith, 2012). However, with respect to transgender inmates, the prison’s overarching interest in administrative ease costs the inmates their constitutional rights. Therefore, modifications to prison classification systems are necessary in order to achieve an appropriate balance between prison interests and the individual rights of transgender inmates (Smith, 2012). Research consistently demonstrates that inmates with pre-existing psychiatric disorders are at a greater risk of suffering psychological deterioration while in segregation. Given that the effects of administrative segregation are far more perilous on inmates with existing mental health conditions, this blanket approach should not be a solution for managing transgender inmates. Creating housing alternatives and accommodations that are gender-appropriate, including non-punitive forms of segregation, will instead allow transgender inmates to feel safe, while respecting their gender identity and gender expression. 25 Treatment and Health Care In the community, financial barriers, limited access to trans-affirmative mental and physical health care, and fear of accessing health services are key factors related to the risk of health problems among transgender individuals (Fredriksen-Goldsen, Cook-Daniels, Kim, Erosheva, Emlet, Hoy-Ellis & Muraco, 2014; Garofalo, Deleon, Osmer, Doll & Harper, 2006; Grossman & D’Augelli, 2006), with transgender people sometimes being denied care because of their gender identity (Fredriksen-Goldsen et al., 2014). Reportedly, more than a quarter of transgender adults have experienced discrimination by a physician or have been denied enrollment in a health insurance plan due to their gender identity (Bradford, Reisner, Honnold, & Xavier, 2012; FredriksenGoldsen et al., 2014). Transgender people are less likely than the general population to have health insurance, and for those with insurance, many transgender-related medical needs are not covered (Fredriksen-Goldsen et al., 2014). In a correctional environment, access to treatment is even more limited, and commonly denied in many U.S. jails and prisons (Rough et al., 2017; Tarzwell, 2006). Transgender inmates are routinely offered counseling in place of hormone replacement therapy, despite the fact that clinical evidence has concluded that gender-affirming medical care is a far more appropriate treatment for individuals with Gender Dysphoria (Tarzwell, 2006). The diagnosis of Gender Dysphoria is considered a serious medical need, yet no particular treatment is constitutionally required in an institutional setting. The denial of hormone treatment will result in physical reversals, along with mental health conditions such as depression, yet many U.S. prisons are not required to provide such treatments (Rough et al., 2017; Tarzwell, 2006). Despite that several federal court 26 rulings consent that Gender Dysphoria is a legitimate medical issue requiring treatment, many correctional officials continue to fail to address, and often ignore, transgender inmates’ medical needs. In one alarming case, a transgender inmate detained in a correctional facility with Oregon’s Department of Corrections was repeatedly denied access to treatment for her gender identity. After several attempts at self-castration, and finally after being successful, she was sent to the Oregon State Hospital for treatment for both her physical injuries and her gender identity disorder (Willson, 2014). There are some inconsistencies worthy of discussion. Taylor (2007) noted that in the U.S. civil case of Meriwether v. Faulkner (1987), the 7th Circuit Court of Appeals held that transgender prisoners have a “right to some sort of medical therapy for transsexualism” (Taylor, 2007, p. 850). However, transgender inmates did not have a right to particular therapies. Some federal judges have supported medical treatment for transgender inmates, most notably in Brooks v. Berg (2003) and De’Lonta v. Angelone (2003). With these cases, the federal courts concluded that the treatment of transgender prisoners is a “medical necessity”. Unfortunately, the IRS denies tax deductions by citing a lack of medical necessity; thus, U.S. federal policy is discernably contradictory (Taylor, 2007). Similarly, prison policies on surgical and hormonal therapies are not consistent across Australian jurisdictions. Hormonal therapies which commenced prior to incarceration will generally be continued at the discretion of prison medical services, but commencement of hormones or surgery is not necessarily permitted (Blight, 2000). In South Australia, hormone therapy may be initiated at the direction of prison medical 27 officers. In New South Wales, inmates may have hormones or “elective” surgery, provided that the individual covers all the costs (Blight, 2000). Conversely, the CSC has demonstrated to be relatively progressive in this regard. As per current CSC policy, inmates with diagnosed Gender Dysphoria have the opportunity to initiate or to continue with hormone therapy, as prescribed by either a Psychiatrist who is a qualified health professional in the area of Gender Dysphoria, or other Specialist Physicians in the area of Gender Dysphoria or endocrinology (CSC, 2017). While a number of U.S. states allow for a counseling for transgender inmates, several do not. It is imperative that states have clear treatment criteria, to guide correctional staff and medical personnel who are dealing with transgender inmates. Following such criteria will reduce the likelihood of lawsuits, and more importantly, improve the quality of life for transgender inmates (Rough et al., 2017). Victimization and Stigmatization Various environmental, biological, psychological, and sociological factors influence sexuality in society; these factors are further complicated by the experience of incarceration (Hensley, Tewksbury, & Koscheski, 2001; Tewksbury & West, 2000). As Pardue, Arrigo and Murphy (2011) provided, prison sexuality, “is shaped by multiple levels of social life that are determined by mainstream culture and amplified by the idiosyncratic subculture of correctional confinement” (Pardue et al., 2011, p. 2). Placed at the bottom of the masculinity hierarchy in prison, MTF transgender inmates are often defined in terms of their femininity (Erni, 2013). MTF transgender inmates are sometimes referred to as ‘punks’ for their sexually submissive role, along with other young, heterosexual, less street-wise inmates (Erni, 2013). More often though, MTF 28 transgender inmates are termed ‘queens’ for their effeminacy, and are assigned female tasks, such as doing laundry, cleaning the cell, serving drinks (Erni, 2013). Because they are often viewed with contempt by prison staff, ‘queens’ are routinely denied privileges afforded to other inmates, “including recreation hall attendance, exercise and fresh air in the yard, library visits, chapel attendance, and hot food” (Peek, 2004, p.1227). As a result, transgender individuals who are uniquely at odds with these gender stereotypes are often singled out for assault because of their gender identity. More concerning, transgender inmates are, “disproportionately subjected to transphobic and homophobic slurs, beatings, and sexual assault, including rape” (Tarzwell, 2006, p. 179), and report higher rates of harassment, isolation, forced sex, and physical assault, both by prison personnel and other inmates (American Psychological Association, 2015). A U.S. study found that transgender prisoners were 13 times more likely to be sexually assaulted than non-transgender prisoners (Jenness, 2009). As one researcher lamented, “prison rape is the most tolerated act of terrorism in the United States” (Robertson, 2003, p. 436). Grant et al. (2011) found that MTF inmates experienced officer/staff harassment at higher incidences than their FTM transgender peers, and Erni (2013) reported that MTF transgender inmates have been identified as one of three high risk groups for prison rape. For transgender inmates in prisons and jails in the U.S., Grant et al., (2011) determined the following from their study: transgender respondents who served time in jail reported harassment by correctional officers (37%) slightly more often than harassment by peers (35%); 16% of transgender respondents who had been to jail or prison reported being physically assaulted and 15% reported being sexually assaulted; 29 and African-American transgender respondents reported much higher rates of physical and sexual assault in prison, by other inmates and corrections officers, than their counterparts. Health care denial was another form of abuse in prison, with 12% of people who had been in jails or prisons reporting denial of routine health care, and 17% reporting denial of hormones (Grant et al, 2011). In 2007, research on violence in California correctional facilities by Jenness and colleagues (2007) demonstrated that transgender inmates are disproportionately victims of sexual assault. Specifically, comparing the results from in-person interviews with a convenience sample of 39 transgender inmates and a random sample of 322 inmates in California prisons for adult men, the researchers found that 59% of transgender respondents reported having been sexually assaulted in a California correctional facility, in contrast to 4.4% of the random sample of inmates (Jenness et al., 2007). Moreover, incident-level data from this study revealed that when transgender inmates are sexually assaulted in prison by another inmate, the incident is more likely to involve the use of a weapon, yet less likely to evoke medical attention if needed. These and the other empirical findings demonstrated that not only is the rate of sexual assault against transgender inmates significantly higher than for their non-transgender counterparts, but more alarming, transgender inmates experience different institutional interactions and responses than their non-transgender counterparts in prison (Jenness et al., 2007; Sexton et al., 2010). Concerns regarding correctional staffs’ treatment towards transgender inmates emerged as a common theme within the literature. Correctional staff routinely reinforce the hierarchical atmosphere of dominance in men’s institutions, which only further 30 ostracizes transgender inmates housed in men’s institutions (Erni, 2013; Tarzwell, 2006). Many transgender prisoners are often misunderstood by prison staff to be homosexual males participating in acts of consensual sex and are therefore likely to be denied justice and adequate medical and mental health care after an assault (Tarzwell, 2006). As a result, prison staff often respond inadequately, or simply not at all, to sexual assaults. Prison staff also actively participate in the victimization of transgender prisoners by perpetrating demeaning "gender-check" strip searches, mocking of genitals, verbal, physical, and sexual assault, and rape (Tarzwell, 2006). Not only do prison staff often ignore or justify sexual violence perpetrated against MTF inmates, they may be implicated as the sexual harassers themselves (Erni, 2013). As one researcher described, “some staff members view prison rape as part of the punishment-risk that lawbreakers take when they commit their crimes…others see it simply as retribution carried out at an interpersonal level” (Hassine, 1999, p. 136). However, being sexually assaulted in prison is not part of the penalty that criminal offenders pay for their offences. The evidence of this vulnerability introduces a compelling quandary for correctional authorities: housing inmates based on their genitalia directly places inmates’ needs for safety and security against their need for treatment, and ultimately their successful offender reintegration (Kuchinski, 2015). Housing transgender inmates in this culture creates a triangulation of humiliation, stigmatization, and victimization. Subsequently, when an assault or threat of assault occurs, the practice of moving transgender inmates into administrative segregation is often the solution. Yet this practice only implicitly and explicitly punishes transgender 31 inmates for their gender identify, creating further opportunities for stigmatization and harassment. The extensive experiences of stigmatization and discrimination reported by transgender people, and the subsequent mental health consequences of these experiences, are directly linked to increased rates of depression and suicide (American Psychologist, 2015; Clements-Nolle, Marx, & Katz, 2006; Grant et al.,2011;). Current findings report that forty-one percent of transgender individuals have attempted suicide (Smith, 2012; Tanis, 2016). In order to access associated medical treatments, such as counselling, cross-sex hormones, and reassignment surgery, an individual needs a diagnosis of Gender Dysphoria. As described in the Diagnostics and Statistical Manual of Mental Disorders (DSM-5), removing the condition as a psychiatric diagnosis could jeopardize access to care (American Psychiatric Association, 2013). Yet the diagnosis of Gender Dysphoria has been criticized, as the perceived stigma attached with a mental health diagnosis may impact the treatment patients seek (Grant et al., 2011; Morgan, 2013). These concerns become even more heightened in a correctional environment, as medical treatment provided to transgender inmates is often inadequate, inaccessible, or simply denied (Tarzwell, 2006). However, as one psychologist stated, “if you take out the diagnosis, you don’t have a code for treatment” (Morgan, 2013, p. 10). Removing the condition as a psychiatric diagnosis could therefore jeopardize access to care both inside and outside of the prison environment (American Psychiatric Association, 2013). Another prevailing stigma associated with housing considerations among transgender inmates, is the fear that a pre-operative MTF transgender inmate might 32 have sex (consensual or non-consensual) with female inmates, which would create additional problems in correctional facilities. These fears parallel the prejudices transgender women face outside the prison context with regard to biological sexsegregated bathrooms. When attempting to use women’s restrooms, transgender women often face irrational fear from others who view them as a threat to the safety of non-transgender women. Based on false notions that transgender individuals are somehow inherently “predatory” or “voyeuristic”, this fear drives the argument in favor of sex-segregated facilities (Peek, 2004). Similarly, prison officials may argue that their failure to house MTF transgender inmates in accordance with their gender identity is justified by the threat they pose to the safety of female inmates. In an attempt to dispel concerns about sexual assault, some correctional officials have suggested that, “if prison authorities administer hormones in appropriate amounts, a pre-operative transsexual woman’s penis would not be functional” (Peek, 2004, p. 1243). Meaning, the use of estrogen chemically castrates men. As such, providing hormones to MTF prisoners would ideally lower the risk of sexual assault against female prisoners. However, this should not be a determining factor in penitentiary placement of pre-operative transgender inmates. Transgender prisoners should not be presumed dangerous or violent simply because they have not had genital surgery or hormone replacement treatment, nor should they be subject to treatments such as chemical castration (Peek, 2004). This suggestion only adds to the already existing stigma and stereotypes of transgender individuals. Policy Revisions within the CSC Until recently, transgender inmates incarcerated in federal correctional institutions with the CSC were held in facilities that corresponded to their existing 33 biological sex only (Sapers, 2016). Therefore, the CSC’s correctional policies did not adequately reflect the current and evolving state of domestic and international law protecting the rights of transgender people who are imprisoned. The approval of Bill C16 (2016), An Act to amend the Canadian Human Rights Act and the Criminal Code in June 2017 added gender identity and gender expression to the list of prohibited grounds of discrimination. As a result of Bill C-16 (2016), correctional decisions made about offenders must not discriminate against them based on gender identity or gender expression. The CSC has therefore proposed fourteen policy revisions and one policy revocation. The policy framework largely includes changes to admission, classification, searches, use of force, personal property, and health services. The policy revisions were developed by an intersectoral working group at CSC National Headquarters, led by Strategic Policy, with input from internal and external stakeholders (CSC, 2017). In December 2017, an Interim Policy Bulletin 584 was published in the CSC’s Commissionaire’s Directives (CSC, 2017) until the policies can be completely revised and enforced. The Interim Policy Bulletin 584 lists the following fourteen policy numbers and titles, and the revocation of one policy guideline as outlined in the table below: 34 Table 1. Commissionaire’s Directives, 2017 Policy Number 352 550 566-7 566-10 566-12 567-1 577 702 705-1 705-3 705-7 710-2 800 843 800-5 Policy Name Inmate Clothing Entitlements Inmate Accommodation Searching of Offenders Urinalysis Testing Personal Property of Offenders Use of Force Staff Protocol Aboriginal Offenders Preliminary Assessments and Post-Sentence Community Assessments Immediate Needs Identification and Admission Interviews Security Classification and Penitentiary Placement Transfer of Inmates Health Services Interventions to Preserve Life and Prevent Serious Bodily Harm Gender Dysphoria Source: Correctional Service of Canada, 2017 Overall, the changes to the CSC’s policies largely include gender-neutral language and better documentation for protocols for inmates with gender considerations. As well, greater information will be provided to both staff and inmates in order to support greater gender awareness and sensitivity (CSC, 2017). However, some of the policies include more specific revisions. Searching of Offenders (CD 566-7) now provides that offenders with gender considerations may request a male staff member or a female staff member to conduct the search, and this request will be accommodated contingent on any safety or health concerns that cannot be otherwise resolved. At present, split searches are most commonly used for searching transgender inmates. A split search is described as having both a female and male correctional officer individually strip search the upper and lower half of the inmate’s body. For example, a male correctional officer will complete the lower body search of an MTF transgender 35 offender, leaving the top part of the inmate’s body clothed. The inmate will be fully observed at all times during the turnover to female officer. The female correctional officer will then complete the search of the inmate’s upper body leaving the lower body clothed (CSC, 2017). Individualized protocols, such as split searches, will be developed in consultation with, and in consideration of the needs of, the offender, and documented in the Offender Management System (OMS) with a Memo to File (CSC, 2017). Urinalysis Testing (CD 566-10) now provides clarifications with regard to the gender of the Urinalysis Collector in the cases of inmates with gender considerations required to provide for a urinalysis test. Again, the request will be accommodated contingent on any safety or health concerns that cannot be otherwise resolved. Similar to Searching of Offenders, for every offender with gender considerations, an individualized urinalysis testing protocol will be created, and documented via a Memo to File in OMS (CSC, 2017). The revisions to the Security Classification and Penitentiary Placement (CD 7057) now provide that inmates with gender considerations may request to be placed in a men’s institution or a women’s institution according to their gender preference, unless there are overriding health and/or safety concerns which cannot be resolved. The inmate will be consulted and involved in the decision-making process. When the institution type (i.e. men’s or women’s institution) has been determined for inmates with gender considerations, the appropriate alert must be activated in the OMS (CSC, 2017). The revisions to Health Services (CD 800) provides that the CSC recognizes that inmates who have Gender Dysphoria may wish to seek treatment. The provision of Health Services to treat Gender Dysphoria is deemed to be an “essential health care”, 36 per legislation, and the funding of specific health interventions is outlined in the National Essential Health Services Framework. When determining eligibility for specific health care in this area, the CSC adheres to the criteria outlined in the most recent edition of the World Professional Association for Transgender Health’s, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (CSC, 2017). The eligibility criteria for sex reassignment surgery in the case of Gender Dysphoria has also been added to Health Services policy (CSC, 2017). This is significant; in comparison to many U.S. jails and prisons which refuse to acknowledge or recognize Gender Dysphoria as a legitimate health consideration, the CSC has deemed the treatment of Gender Dysphoria as “essential”. The revocation of Gender Dysphoria (GL 800-5) means that policy exemption approval from the Assistant Commissioner, Health Services, is no longer required in the case of placements or transfers for transgender inmates. Transfers, whether intraregional or inter-regional, will be per current policy, and will require close consultation between the sending and the receiving institutions, as well as with the offender. If the decision of a transfer or a placement to a different institution type (men’s or women’s) does not correspond to the offender’s preference, the offender will be advised of the rationale in writing (CSC, 2017). Since Bill C-16 (2016) came into force on June 19, 2017, the CSC has had a duty to accommodate inmates based on their gender identity or gender expression, regardless of the individual anatomy, or the gender marker on identification documents. As outlined above, the CSC’s policy revisions largely include gender-neutral language and opportunities for the inmate to request a staff member of their gender preference to 37 conduct a urinalysis test and search. As well, CSC staff must use the individual’s preferred name and pronoun in oral interaction and written documentation. Of these policy revisions, most notable are the Security Classification and Penitentiary Placement (CD 705-7) and Transfer of Inmates (CD 710-2) directives, which allow inmates to be penitentiary placed or transferred to an institution according to their gender identity or gender preference, unless there are overriding health and/or safety concerns which cannot be resolved. A concern with this considerable policy revision is that it may encourage offenders to commit “gender identity fraud” (Sharpe, 2017). The CSC can anticipate that some inmates will attempt to manipulate the system and claim they are transgender in order to apply for a transfer to an institution of a differing gender. However, the CSC’s Interim Policy Bulletin is very clear that in order for an inmate to apply for a transfer to an institution of their gender preference, there cannot not be any overriding health or safety concerns. Corrections Canada is guided under the authorities of the Canadian Human Rights Act, Corrections and Conditional Release Act, and Corrections and Conditional Release Regulations, and as such, the safety and security of the individual offender and the institution is paramount in any decision made by the Institutional Head (CSC, 2017). Given the small number of transgender inmates in Canadian federal facilities, and the overwhelming lack of research on housing transgender inmates overall, the current policy revisions to accommodate transgender inmates in institutions of their gender preference may not fully address all the safety and security considerations and 38 continue to contribute to already existing discrimination and stigmatization, from both staff and inmates alike. Despite the fact that judicial decision-makers, the media, government officials from both the executive and legislative branches, and corrections officials are becoming more aware of transgender inmates, there is still little empirical social science research devoted to this population of inmates (Sexton et al., 2010). While select works examine correctional policies that do and do not address transgender inmates, systematic social science work that examines the demographic patterns and lived experiences of this population are at present in an evolving state (Sexton et al., 2010; Tarzwell, 2006). The recent policy revisions within the CSC demonstrate a progressive step for transgender inmates; however, the following recommendations are provided to aid in the development of guidelines and enhance the safe and secure management of transgender inmates. Short Term Recommendations i. Recording Transgender Inmates There needs to be an opportunity for inmates to self-identify as transgender, either at intake or at a later time of incarceration, and this identification status needs to be recorded and respected. In Australia, this information has already been tracked and recorded in the New South Wales Offender Management System for several years (Blight, 2000). It is apparent that the addition of gender identity and gender expression into antidiscrimination legislation in Canada suggests that self-identification is the key indicator of transgender status. Yet until recently, this information was not consistently recorded. As part of the policy revision for Preliminary Assessments and Post-Sentence Community Assessments (CD 705-1), during the intake interview, the Parole Officer will 39 complete a Preliminary Assessment, which includes a checklist of questions. Under the option “current gender”, the checklist now adds “other” to “male” and “female” (CSC, 2017). Another important consideration that ought to be recorded is the stage of transition that a transgender individual is at: pre-operative, post-operative, or nonoperative. As described previously, non-operative describes those who live as their opposite gender, but do not wish to change their biological sex, either because they feel the surgery is too expensive or too risky, or because they are happy with their bodies the way they are (Peek, 2004). The Parole Officer can therefore establish this information by asking clear and simple questions to the inmate, such as “Are you currently taking replacement hormones?” and “Have you worked with a Psychologist or Gender Therapist?” It is critical that any information related to an offender’s gender identity or gender expression be appropriately documented. When an inmate seeks to be accommodated on the basis of gender identity or gender expression, an individualized protocol needs to be developed, as per the revised policy Inmate Accommodation (CD 550). As outlined above, inmate requests related to gender identity or gender expression will be accommodated except where, or to the extent that, following discussions, including with the offender, it has been established and documented by the Service that there would be overriding health or safety concerns which cannot be resolved (CSC, 2017). Documenting this information will be crucial in order to prevent an inmate attempting to manipulate the system and commit “gender identity fraud” (Sharpe, 2017). It is recommended that the CSC both appropriately record the number of self-identified transgender inmates, along with their respective stage of transition. Recording this 40 information would assist with treatment and health care services, by ensuring both the case management team and health care/psychology departments are aware of the individual inmate’s status. Recording this information in OMS would further assist with individualized protocols, tailored to the individual inmate, in relation to searching, urinalysis testing, and purchasing personal effects. ii. Improving Communication and Training for Staff Regular and routine communications among correctional staff and the inmate population will be key in the successful management of this population. The professionalism of staff who engage with this population is essential for positive interventions, especially when faced with the reality that other inmates and some staff can demonstrate both implicitly and explicitly intolerance towards transgender inmates. As Kuchinski (2015) described, prison staff often have their own personal biases of transgender identity based on a multitude of factors. This bias is often a result of a mixture of upbringing, social experiences, education, and religious influences. For correctional staff, tolerance and respect is a matter of both safety and security. As Kuchinski (2015) explained, this issue is both ethically important and tactically important. When examining the Emergency Response Team and Crisis Negotiation Teams methods for dealing with inmates, the profound and positive results of professional communications utilizing “tactical empathy” is evident (Kuchinski, 2015). Tactical empathy refers to intelligence gathering by a professional investigator who is attempting to learn what a person is thinking, in an attempt to learn how to generate his/her voluntary compliance, cooperation, and collaboration (Regini, 2004). By employing the use of social skills such as active listening, boundary setting, empathy, and problem solving, while displaying a nonjudgmental attitude, negotiators can move 41 toward resolving an incident (Regini, 2004). By applying these crisis intervention skills, negotiators can help individuals in crisis defuse their emotions, lower the potential for violence in an incident, and buy more time for more effective decision-making and tactical preparations (Regini, 2004). Therefore, in relation to interacting with transgender inmates, “if staff do not have it within themselves to be ethically empathetic, then they must be taught the benefit of becoming tactically empathetic” (Kuchinski, 2015, p. 47). Accordingly, the CSC’s Diversity and Cultural Competency Training now includes relevant information about the amendments to the Canadian Human Rights Act related to gender identity or gender expression, and an online awareness session has now been established for employees (CSC, 2017). The CSC’s Interim Policy Bulletin 584 provides that current and future changes to CSC’s policies will include gender-neutral language, and further information will be provided to both staff and inmates to support greater gender awareness and sensitivity (CSC, 2017). The New Employee Orientation Training Program will also be modified accordingly (CSC, 2017). Through the ongoing maintenance and update of CSC’s Correctional Training Program for Correctional Officer recruits, the course content will be reviewed and updated, in order to increase knowledge and skills on operational changes related to this new legislation (CSC, 2017). While these changes are positive, regular and consistent training and communication with correctional staff will further aid in overcoming misinterpretations, misconceptions, and misguided opinions and biases of transgender individuals. A recommendation for addressing this area is to provide staff with a detailed, clinical overview from psychological or health care staff. The areas that ought to be considered 42 include: staff ethics/appropriate role of personal beliefs; personal development specifically related to sexual orientation and gender identity; language usage and assumptions of heterosexuality; and individual privacy rights and confidentiality issues (Bosley & Asbridge, 2012). It would be beneficial for the CSC to first establish a baseline measure of staffs’ understanding regarding transgender inmates, before imposing training and communication. This would assist in determining the type of education and training required for staff. The reinforcement of the CSC’s values statements, which include principles of inclusion, fairness, respect, and professionalism (CSC, 2017), is another remedy to counteract negative bias among the views of transgender inmates. Additionally, CSC staff ought to receive training, resources, and policy/legislation updates from both CSC management and LGBTQ2S advocates, in order to ensure staff are properly informed and prepared to implement changes resulting from the interim policy. Long Term Recommendations i. Development of Trans-Units Alternatives to general population and administrative segregation for transgender inmates need to be explored. Placing transgender inmates in individual cells that are not administrative segregation, or with transgender cellmates, may reduce the chances of a transgender inmate being attacked by a cellmate, but does not necessarily render other environments safer to the inmate. Alternative placement options for transgender inmates need to be carefully designed, so as to not reinforce the marginalization and stigmatization of transgender individuals. A recommendation therefore, is the implementation of trans-units at existing multi-level security complexes in federal institutions. Men’s institutions with an Intake Assessment Centre (or Regional Reception 43 Centre) are classified as multi-level and exist in every region in Canada. For women’s institutions, the CSC operates five women's institutions across the country, all of which are multi-level, where minimum, medium and maximum-security women are accommodated (CSC, 2017). Therefore, constructing or assigning a unit devoted to housing transgender inmates of any security classification at an Intake Assessment Centre in both men’s and women’s institutions is feasible. Such a unit could consist of two, two-tiered ranges or pods, in order to separate the maximum-security offenders from the minimum and medium-security offenders. The unit could also include a separate yard and separate movement times, in order to ensure safety and security of the population. The goal of the unit would be to eventually transition transgender inmates to institutions of their gender preference at a gradual process, in order to identify any health or safety considerations prior to a transfer. The development of a trans-unit in Intake Assessment Centers in each region would allow transgender inmates to be appropriately classified and housed near their supports and communities, in an effort to reduce additional hardships and geographic dislocation. Similarly, until 2000, women offenders were housed in just one federal prison (Prison for Women) in Kingston, Ontario. The report, Creating Choices (1990), drew attention to the shortcomings of having a single facility; namely, accommodation (higher security environment than required); geographic dislocation (separation from family members, support networks and their communities); and limited/inadequate program availability (Creating Choices, 1990). Borrowing from the CSC’s approach to managing women offenders, creating inclusive units for transgender inmates in multilevel security institutions nation-wide would allow for transgender inmates to be properly 44 accommodated, while reducing geographic dislocation and ensuring full access to programming needs. ii. Management and Treatment Plan It is recommended that a trans-unit have a specialized Case Management Team (CMT), comprised of an Institutional Parole Officer, a Correctional Manager, a Psychologist, and several Correctional Officers. Members of the CMT would be required to complete diversity and sensitivity training, prior to being assigned to the unit. The CMT would only be assigned to the inmates on the unit in order to ensure safety, respect, consistency, and appropriate sentence planning. As demonstrated throughout this paper, transgender inmates face many diverse obstacles; any single correctional official is unlikely to have the knowledge, and often the sensitivity to transgender issues, in order to make appropriate case management decisions (Tarzwell, 2006). Therefore, having a specialized CMT would positively assist with the transgender inmates’ incarceration experience. The inclusion of consultants from outside the prison management and the requirement of transgender-awareness training would assist in reducing the opportunity for case management decisions to be bias-driven. Creating an environment where this target population regularly interacts and shares activities, problems, and concerns pertaining to institutional adjustment, can provide the necessary intelligence to disrupt potential problem situations and safety concerns (Kuchinski, 2015). A constant review of case management and appropriate sentence planning, along with maintaining a positive, professional rapport and engaging in routine communications with this target population, is a tactical way to ensure success (Kuchinski, 2015). Having a specialized CMT who are trained, knowledgeable, and sensitive to the complex and diverse needs of transgender inmates would reflect 45 the CSC’s commitment to ensuring an inclusive and respectful environment for all inmates. In order to assist with the gradual transition of transferring transgender inmates to an institution of their gender preference, conducting Escorted Temporary Absences (ETA’s) to institutions which the inmate ultimately intends to transfer to would allow the inmate to develop a relationship with their future CMT, and familiarize themselves with the respective institution. As per the policy on Temporary Absences (CD 710-3), the objective of an ETA is, “to provide inmates with opportunities to access the community or another institution for Medical, Administrative, Parental Responsibility, Compassionate Reasons, Community Service, Family Contact, Personal Development, and for Rehabilitative Purposes” (CSC, 2017). An example of this would be, at the recommendation of the CMT and approval from the Warden, a MTF inmate residing on the trans-unit would participate in a consecutive series of ETA’s for Personal Development to a women’s federal institution. This way, the MTF inmate could develop a rapport with the potential new CMT, while becoming familiarized with the new institution. This would also allow the MTF inmate to decide whether to pursue a transfer or remain on the trans-unit. Gradually transitioning inmates to an institution of their gender preference through a structured ETA process would allow for correctional staff to better prepare for potential transfers, by identifying any problem situations or safety concerns prior to an actual placement or transfer. As outlined above, a critical component of the CSC’s revised policies on placement and transfers for transgender inmates is that, if there are “overriding health and/or safety concerns which cannot be resolved” the placement or transfer will not 46 occur. As such, a gradual and structured ETA process to the institution of the inmate’s gender preference will ideally assist in identifying potential problem situations or safety concerns. As Tarzwell (2006) suggested, developing a Management and Treatment Plan tailored to transgender inmates would further assist correctional authorities in executing their mission statement. iii. Development of a Risk Assessment Tool Another recommendation is developing an assessment tool specialized for transgender inmates. Risk assessments are designed to evaluate accurately the risk of recidivism that an offender poses, consider the circumstances that might make recidivism more likely, and recommend treatment or management strategies that mitigate or reduce the likelihood of recidivism (Judge, Qualye, O’Rourke, Russell & Darjee, 2014). There are two main approaches, termed ‘‘discretionary’’ and ‘‘nondiscretionary’’ (Judge et al., 2014). In the “discretionary” approach, the risk assessor is afforded a degree of flexibility and can use their professional judgement in order to arrive at decisions about offender’s risk. In the “non-discretionary” approach, the opposite is true. Decisions about risk are made based upon statistical or algorithmic procedures that are specified a priori. The “non-discretionary” approach has also been termed ‘‘actuarial’’ (Judge et al., 2014). Applying objective prison classification systems and actuarial tools that are reliable and valid have the capacity to significantly decrease harmful discrimination in prisons. In general, risk and needs assessment instruments typically consist of both static and dynamic risk factors. Static risk factors are described as unchanging over time; static factors include age at first arrest, gender, past problems with substance or alcohol abuse, prior mental health problems, or a past history of violating terms of supervision. 47 Dynamic risk factors (also known as criminogenic needs), are described as changing over time, and/or can be addressed through interventions. Dynamic risk factors include current age, education level, or marital status, being currently employed or in substance or alcohol abuse treatment, and having a stable residence (James, 2015). However, in the context of transgender individuals, the potential for discriminatory effects with the wide-scale use of risk and needs assessment may exacerbate gender disparities in the prison systems. For transgender inmates, their gender may not be static, as their gender at the time of the index offence may differ from their gender at the time of incarceration. Given this information, developing a specialized assessment tool for transgender inmates would allow the CMT to meet the individual needs of transgender inmates, and assist transgender inmates in meeting their gender-specific goals, such as initial or continued placement on hormone replacement therapy, the application for sex reassignment surgery, and appropriate program referrals. An assessment tool would allow the CMT to develop specific time frames for correctional and sentence planning, such as an eventual transfer to an institution of their gender preference, conditional release to gender-neutral or sensitive half-way houses/treatment centers, and access to treatment and services in the community once released. An assessment tool would be beneficial in ensuring appropriate penitentiary placements and program referrals for transgender inmates at intake or during incarceration. In prisons in Western Australia, the social based approach takes into account the following factors when assessing the management of transgender inmates: family background, developmental history including development of sexual identity, recent lifestyle, medical history with particular 48 reference to hormonal and/or interventions, and gender identity preference (Blight, 2000). These factors could be included in the development of an assessment tool for transgender inmates, as these static and dynamic factors encompass the specific components unique to transgender inmates. Research demonstrates that actuarial tools consistently have stronger predictive validity than clinical judgement (Judge et al., 2014); therefore, research must continue to develop and refine instruments that better reflect the ever-changing prison population (Bonta, 2002). Further, combining a variety of different assessment tools based on the needs of a particular prison population ensures a comprehensive approach to offender classification. Creating objective classification and actuarial tools will assist in properly classifying, housing, managing, and treating transgender inmates. Actuarial tools are akin to evidenced-based practice and allow room for practical wisdom. If evidencebased practices and classification instruments are continually validated for the dynamic population which they are intended to serve, then a more robust and fair system will result (Bonta, 2002). Practice informed theory subsequently led to more refined assessment tools for incarcerated women; similarly, the same approach can be applied to transgender inmates. A proper classification can guide treatment intervention, housing assignments, and overall management of transgender inmates. If the system is valid and implemented correctly, violence within the institution should decrease, and effective programming and treatment should increase. Conclusion It is important to emphasize the vulnerability and marginality of individuals who identify as transgender, considerations that become even more heightened in an institutional environment. There are, without question, considerable dangers associated 49 with identifying as transgender, including high rates of violence, discrimination and suicide, both in the community and in custody (Grant et al., 2011; Read, 2016; Sharpe, 2017; Smith, 2012). Transgender inmates continue to be subjected to harassment, physical and sexual attacks, and denial of gender-affirming medical care. This situation appears to be the result of systemic stigma and discrimination that pulls on transgender individuals from many directions, beginning at birth (Tarzwell, 2006). In the U.S., few states have yet to adopt policies on addressing the management of transgender prisoners, and more often, the existing policies fail to guarantee safe, sensitive placement, or provision of gender-affirming medical care to transgender prisoners. In contrast, the CSC has made several progressive policy revisions since the passing of Bill C-16 (2016), yet individual and institutional safety concerns of transgender inmates are still present. The primary concern in jurisdictions without written correctional policies addressing the specific management of transgender inmates is that prison staff are granted unfettered discretion. Transgender inmates are therefore often placed at the mercy of individuals who, in many instances, contribute to their systematic victimization and maltreatment. In most U.S. states, transgender inmates often only have inadequate grievance procedures and the court system to protect them (Tarzwell, 2006). Such case-by-case decisions by prison staff foreclose the opportunity for input from members of the transgender community, or from transgender advocates or professionals experienced in working with transgender individuals regarding the needs of transgender prisoners (Tarzwell, 2006). Therefore, it is critical to develop guidelines that include input from the LGBTQ2S community stakeholders and transgender advocates, in order 50 to create more comprehensive and consistent approaches to the management of transgender inmates. Simply put, there is no easy solution to managing transgender inmates. Transgender inmates are disproportionately targeted for assault, harassment, rape and other types of institutional violence, given the enforced gender-hierarchy of the prison system. Jurisdictions lacking any correctional policies regarding the unique and diverse needs of gender-transgressive individuals allows for transgender prisoners to be forced into dangerous placements and denied gender-affirming medical care (Rough et al., 2017; Tarswell, 2006). Yet, the solution cannot be that correctional authorities simply change the current system of genitalia-based placement to gender-preference based placement, in order to meet the needs of transgender inmates. This policy does not fully reduce the risk of harm. Therefore, a more gradual integration process for transgender inmates, starting with specialized units tailored to the unique and sensitive needs of transgender inmates, would ideally address both health and safety concerns. Revising policies, establishing specialized living units and corresponding CMT’s, developing treatment plans, and creating an actuarial tool to determine risk and needs will ensure the safety and security of transgender inmates, while respecting individual rights and freedoms of all transgender people who are imprisoned. In the absence of written and current policies, dangerous placements, and denial of gender-affirming medical care will continue amongst the transgender inmate population in correctional institutions. Correctional authorities have little to be proud of in the treatment accorded to transgender inmates. What correctional authorities can do is acknowledge the abuses and mistreatment of transgender inmates, recognize the perilous conditions correctional 51 environments have created, and set a practical course towards a more equitable future for transgender inmates. 52 References Abramovich, I.A. (2017). Understanding How Policy and Culture Create Oppressive Conditions for LGBTQ2S Youth in the Shelter System. Journal of Homosexuality, 64(11), p.1484-1501. DOI: 10.1080/00918369.2016.1244449. American Psychologist. (2015). Guidelines for psychological practice with transgender and gender nonconforming people. American Psychological Association, 70(9), p.832–864. American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Arlington, VA: American Psychiatric Publishing. Arcelus, J., Bouman, W., Van Den Noorgate, W., Claes, L., Witcomb, G., & FernandezAranda, F. (2015). Systematic review and meta-analysis of prevalence studies in transsexualism. European Psychiatry, 30(6), p.807-815. Austin, J. (1986). Evaluating how well your classification system is operating: a practical approach. Crime and Delinquency, 32(3), p.302-322. Bill C-16: Act to amend the Canadian Human Rights Act and the Criminal Code. First Session, Forty-Second Parliament, 64-65 Elizabeth II, 2015-2016. Retrieved from the Parliament of Canada website: https://www.parl.ca/DocumentViewer/en/42-1/bill/C-16/first-reading Bishop, E., & Myricks, N. (2004). Sex reassignment surgery: When is a he a she for the purpose of marriage in the United States? American Journal of Family Law, 18(1), p.30-35. Bissoondath, N. (1994). Selling Illusions: The Cult of Multiculturalism in Canada. Toronto, ONT: The Penguin Group. 53 Bosley, R. & Asbridg, C. (2012). Ensuring the Safety of LGBT Youths in the Juvenile Justice System. Corrections Today, August/September2012, p.100-103. Bonta, J. (2002). Offender risk assessment: Guidelines for selection and use. Criminal Justice and Behavior, 29(4), p.355-379. Blight, J. (2000). Transgender inmates. Trends and Issues in Crime and Criminal Justice. September 2000, Issue 168, p.1-6. Bradford J., Reisner S. L., Honnold J. A., & Xavier, J. (2012). Experiences of transgender-related discrimination and implications for health: Results from the Virginia Transgender Health Initiative Study. American Journal of Public Health. DOI:10.2105/AJPH.2012.300796. Retrieved from: http://ajph.aphapublications.org.proxy.ufv.ca:2048/doi/pdf/10.2105/AJPH.2012.30 0796. Coolman, A. H., Glover, L., & Gotsch, K. (2005). Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners. Washington, DC. Correctional Service of Canada (2012). Towards a Continuum of Care: Correctional Service Canada Mental Health Strategy. Government of Canada. Retrieved from: http://www.csc-scc.gc.ca/index-eng.shtml Correctional Service of Canada (2017). Commissioner’s Directives. Government of Canada. Retrieved from: http://www.csc-scc.gc.ca/politiques-et-lois/0050060001-eng.shtml Creating Choices: The Report of the Task Force on Federally Sentence Women (1990). Ottawa, ON: Correctional Service of Canada. 54 Dolovish, S. (2011). Strategic segregation in the modern prison. American Criminal Law Review, 48(1), p.1-110. Denomme-Welch, S., Pyne, J., & Scanlon, K. (2008). Invisible men: FTMs and homelessness in Toronto. Retrieved from: http://www.wellesleyinstitute.com/wpcontent/uploads/2011/11/invisible-men.pdf. Emerton, R. (2004). Neither here nor there: The current status of transsexual and other transgender persons under Hong Kong law. Hong Kong Law Journal, 34(2), p. 245-277. Erni, J. N. (2013). Legitimating transphobia. The legal disavowal of transgender rights in person. Cultural Studies, 27(1), p.136-159. DOI:10.1080/09502386.2012.722305. Eyler, A., & Wright, K. (1997). Gender identification and sexual orientation among genetic females with gender-blended self-perception in childhood and adolescence. International Journal of Transgenderism. Retrieved from: http://www.symposion.com/ijt/ijtc0102.htm. Faithful, R. (2009). Transitioning our prisons towards affirmative law: Examining the impact of gender classification policies on the U.S. transgender prisoners. The Modern American, 5(1), p.3-9. Fazel, S. & Danesh, J. (2002). Serious mental disorder in 23 000 prisoners: A systematic review of 62 surveys. The Lancet, 359(9306), p.545-550. Fredriksen-Goldsen, K. I., Cook-Daniels, L., Kim, H. J., Erosheva, E. A., Emlet, C. A., Hoy-Ellis, C. P., & Muraco, A. (2014). Physical and mental health of transgender older adults: An at-risk and underserved population. The Gerontologist, 54, p. 488-500. 55 Gallagher, R. (2011). Cross-gender pat searches: The battle between inmates– corrections officers enters the courtroom. Western New England Law Review, 33, p.1-71. Garofalo, R., Deleon, J., Osmer, E., Doll, M., & Harper, G. W. (2006). Overlooked, misunderstood, and at-risk: Exploring the lives and HIV risk of ethnic minority male-to-female transgender youth. Journal of Adolescent Health, 38(3), p.230236. Grossman, A. H. & D’Augelli, A. R. (2006). Transgender youth: Invisible and vulnerable. Journal of Homosexuality, 51(1), p.111-128. Grossman, A. H., D’Augelli, A. R., Howell, T. H., & Hubbard, A. (2006). Parent reactions to transgender youth gender nonconforming expression and identity. Journal of Gay and Lesbian Social Services, 18(1), p.3-16. Grant, J., Mottet, L., Tanis, J., Harrison, J., Herman, J., & Keisling, M. (2011). Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. The National Gay and Lesbian Task Force and the National Center for Transgender Equality, Washington, DC. Retrieved from: http://www.thetaskforce.org/static.html/downloads/reports/reports/ntds.full.pdf. Hartford, K., Carey, R. & Mendonca, J. (2007). Pretrial court diversion of people with mental illness. The Journal of Behavioral Health Services and Research, 34(2), p.198–205. Hagner, D. (2010). Fighting for our lives: The D.C. transgender coalition’s campaign for humane treatment of transgender inmates in district of Columbia correctional facilities. The Georgetown Journal of Gender and the Law, XI, p.837-867. 56 Hensley, C., Tewksbury, R., & Koscheski, M. (2001). Masturbation uncovered: Autoeroticism in a female prison. The Prison Journal, 81, p.491-501. Hensley, C., Tewksbury, R., & Koscheski, M. (2002). The characteristics and motivations behind female prison sex. Women and Criminal Justice, 13 (2/3), p.125-139. James, N. (2015). Risk and Needs Assessment in the Criminal Justice System. Prepared for Members and Committees of Congress. Retrieved from: https://www.everycrsreport.com/files/20150724_R44087_0c47cc191ecc982888fa 182c82ef0099a86eca8d.pdf. Jenness, V. (2009). Transgender Inmates in California’s Prisons: An Empirical Study of a Vulnerable Population presented at the California Department of Corrections and Rehabilitation Wardens’ Meeting. Retrieve from: http://ucicorrections.seweb.uci.edu/files/2013/06/Transgender-Inmates-in-CAsPrisons-An-Empirical-Study-of-a-Vulnerable-Population.pdf. Jenness, V. (2010). From policy to prisoners to people: A “soft mixed methods” approach to studying transgender prisoners. Journal of Contemporary Ethnography, 39(5), p.517-553. DOI: 10.1177/0891241610375823 Jenness, V., Maxson, C.L., Sumner, J.M., & Matsuda, K.M. (2010). Accomplishing the difficult, but not impossible: Collecting self-report data on inmate-on-inmate sexual assault in prison. Criminal Justice Policy Review, 21(1), p.3-30. Jenness, V., Sexton, L., & Sumner, J.M. (2010). Transgender inmates in California’s prisons: An empirical study of a vulnerable population. Irvine, CA: University of California, Irvine. 57 Jenness, V. & Smyth, M. (2007). The passage of the Prison Rape Elimination Act: Discursive politics and the reconstitution of prison rape in a culture of control. Paper presented at the annual meeting of the Society for the Study of Social Problems, New York, NY. Jenness, V., Maxson, C.L., Matsuda, K.N., & Sumner, J.M. (2007). Violence in California correctional facilities: An empirical examination of sexual assault. Irvine, CA: University of California, Irvine. Josephson, G., & Wright, A. (2000). Ottawa GLBT wellness project: Literature review and survey instruments. Retrieved from: http://homelesshub.ca/resource/ottawaglbt-wellnessproject-literature-review-and-survey-instruments. Judge, J., Qualye, E., O’Rourke, S., Russell, K., & Darjee, R. (2014). Referrers’ views of structured professional judgement risk assessment of sexual offenders: A qualitative study. Journal of Sexual Aggression, 20(1), p.94-109. DOI: org/10.1080/13552600.2013.767948. Kaba, F., Lewis, A., Glowa-Kollisch, S., Hadler, J., Lee, D., Alper, H., Selling, D., MacDonald, R., Solimo, A., Parsons, A. & Venters, H. (2014). Solitary confinement and risk of self-harm among jail inmates. American Journal of Public Health, 104(3), p.442-447. Kuchinski, C. (2015). Gender dysphoria and corrections. Corrections Today, 77(2), p. 44-47. Kupers, T. (2006). How to create madness in prison. (ed. David Jones). Oxford: Radcliffe Publishing. Retrieved from: 58 http://www.minutesbeforesix.com/MB6Files/2011/Kupers%20Humane%20Prison s.pdf. Kupers, T., Dronet, T., Winter, M., Austin, J., Kelly, L., Cartier, W., Morris, T., Hanlon, S., Sparkman, E., Kumar, P., Vincent, L., Norris, J., Nagel, K. & McBride, J. (2009). Beyond supermax administrative segregation: Mississippi’s experience rethinking prison classification and creating alternative mental health programs. Criminal Justice and Behavaviour, XX, p.1-14. DOI: 10.1177/0093854809341938 Lamb, H. & Weinberger, L. (1998). Persons with severe mental illness in jails and prisons: A review. Psychiatric Services, 49(4), p.483-492. McQueen, P. (2016). Feminist and trans perspectives on identity and the UK Gender Recognition Act. British Journal of Politics and International Relations, 18(3), p.671-687. DOI: 10.1177/1369148116637998. Metzner, J. & Fellner, J. (2010). Solitary confinement and mental illness in U.S. prisons: A challenge for medical ethics. The Journal of the American Academy of Psychiatry and the Law, 38(1), p.104-108. Moran, M. (2013). New gender dysphoria criteria replace gender dysphoria. Psychiatric News, 48(7), p.9-14. Pardue, A., Arrigo, B.A., & Murphy, D.S. (2011). Sex and sexuality in women’s prisons: A preliminary typological investigation. The Prison Journal, 91(3), p.1-27. DOI: 10.1177. Peek, C. (2004). Breaking out of the prison hierarchy: transgender prisoners, rape, and the eighth amendment. Santa Clara Law Review, 44, p.1211-1248. 59 Pemberton, S. (2013). Enforcing Gender: The Constitution of Sex and Gender in Prison Regimes. Signs: Journal of Women in Culture and Society, 39(1), p.151-175. Quintana, N. S., Rosenthal, J., & Krehely, J. (2010). On the streets: The federal response to gay and transgender homeless youth. Washington, DC: Center for American Progress. Retrieved from: http://www.americanprogress.org/issues/2010/06/pdf/lgbtyouthhomeless ness.pdf. Read, M. (2016). Preventing suicide in lesbian, gay, bisexual, and transgender prisoners: A critique of U.K. policy. Journal of Forensic Nursing, 12(1), p.13-18. DOI: 10.1097/JFN.0000000000000104 Regini, C. (2004). Crisis Intervention for Law Enforcement Negotiators. FBI Law Enforcement Bulletin, p.1-6. Retrieved from: www.au.af.mil/au/awc/awcgate/fbi/crisis_interven3.pdf Robertson, J. (2003). A clean heart and an empty head: The Supreme Court and sexual terrorism in prison. North Carolina Law Review, 81, p.433-481. Rosenblum, D. (2000). Trapped’ in sing sing: Transgender prisoners caught in the gender binarism. Michigan Journal of Gender and Law, 6(499), p.499-572. Routh, D., Abess, G., Makin, D., Stohr, M., Hemmens, C., & Yoo, J. (2017). Transgender inmates in prisons: A review of applicable statutes and policies. International Journal of Offender Therapy & Comparative Criminology, 61(6), p.645-666. DOI: 10.1177/0306624X15603745. Rudacille, D. (2005). The riddle of gender: Science, activism and transgender rights. New York: Pantheon Books. 60 Sapers, H. (2012). Annual Report of the Office of the Correctional Investigator 2011– 2012. Ottawa, Ontario: Office of the Correctional Investigator of Canada. Retrieved from: http://www.ocibec.gc.ca/cnt/rpt/annrpt/annrpt20112012eng.aspx. Sapers, H. (2014). Annual Report of the Office of the Correctional Investigator of Canada 2013-2014. Ottawa, Ontario: Office of the Correctional Investigator of Canada. Sapers, H. (2015). Annual Report of the Office of the Correctional Investigator of Canada 2014-2015. Ottawa, Ontario: Office of the Correctional Investigator of Canada. Retrieved from: http://www.oci-bec.gc.ca/index-eng.aspx. Sapers, H. (2016). Annual Report of the Office of the Correctional Investigator of Canada 2015-2016. Ottawa, Ontario: Office of the Correctional Investigator of Canada. Retrieved from: http://www.oci-bec.gc.ca/index-eng.aspx Scott, S. (2013). One is not born but becomes a woman: A fourteenth amendment argument in support of housing male-to-female transgender inmates in female facilities. University of Pennsylvania Journal of Constitutional Law, 15, p.12591297. Service, J (2010). Under warrant: A review of the Implementation of the Correctional Service of Canada’s ‘Mental Health Strategy’. Prepared for the Office of the Correctional Investigator of Canada. Kanata, Ontario. Sexton, L., Jenness, V., & Sumner, J.M. (2010) Where the margins meet: A demographic assessment of transgender inmates in men’s prisons. Justice Quarterly, 27(6), p.835-866. DOI: 10.1080/07418820903419010. 61 Sharpe, A. (2017). Queering judgment: The case of gender identity fraud. The Journal of Criminal Law, 81(5), p.417–435. DOI: 10.1177/0022018317728828 Smith, P. (2008). Solitary confinement: An introduction to the Istanbul Statement on the use and effects of solitary confinement. Torture, 18(1), p.56-62. Smith, W. (2012). In the footsteps of Johnson v. California: Why classification and segregation of transgender inmates warrants heightened scrutiny. The Journal of Gender, Race and Justice, 15(2-3), p.689-727. Spade, D. & Willse, G. (2014). Sex, gender, and war in an age of multicultural imperialism. QED: A Journal in GLBTQ Worldmaking, 1(1), p.5-29. Spade, D. (2008). Documenting Gender. Hastings Law Journal, 59(1), p.731-842. Tanis, J. (2016). The power of 41%: A glimpse into the life of a statistic. American Journal of Orthopsychiatry, 86(4), p.373-377. Tarzwell, S. (2006). The gender lines are marked with razor wire: Addressing state prison policies and practices for the management of transgender prisoners. Columbia Human Rights Law Review, 38(167), p.167-219. Taylor, J. (2007). Transgender identities and public policy in the United States: The relevance for public administration. Administration and Society, 39(7), p.833-856. DOI: 10.1177/0095399707305548 Tewksbury, R. & West, A. (2000). Research on sex in prison during the late 1980s and early 1900s. The Prison Journal, 80, p.368-378. Travis, J., Western, B., & Redburn, F.S. (2014). The growth of incarceration in the United States: Exploring causes and consequences. John Jay College of Criminal Justice. Retrieved from: 62 https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1026&context=jj_pu bs. Willson, K. (2014, April 16). Kristina Olvera says she is a woman. The prison system says he is a man. The fight for justice for Oregon’s transgender inmates. The Willamette Week. Retrieved from: http://www.wweek.com/portland/article-22429kristina-olvera-says-she-is-a-woman-the-prison-system-says-he-is-a-man.html. World Professional Association for Transgender Health (2011). Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People. Retrieved from: https://www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English. pdf. Zinger, I. (2017). Annual Report of the Office of the Correctional Investigator of Canada 2016-2017. Ottawa, Ontario: Office of the Correctional Investigator of Canada. Retrieved from: http://www.oci-bec.gc.ca/index-eng.aspx 63