How do Colorado jails and prisons house transgender prisoners? In part, it depends on their policies.
In reporting this week's feature, "No Way Out," we researched the policies of the federal Bureau of Prisons, the Colorado Department of Corrections and the Denver Sheriff's Department, which runs the Denver County Jail. We found that while some of these agencies are more progressive than others, the outcomes appear to be the same: Most inmates are housed based on their genitalia. So if you're a transgender inmate who identifies as female but has male genitalia, you will be locked up with the men.
That's the situation for Samantha Hill, the inmate at the center of our feature. She's spent nearly twenty years in men's prisons, including the U.S. penitentiary in Florence.
While at Florence, Hill claims she was brutally raped by her cellmate. She subsequently sued the federal Bureau of Prisons, alleging that prison staff failed to protect her even though they knew she was at a heightened risk for sexual assault because she is transgender. The lawsuit ended in a settlement agreement that includes several stipulations about where and how Hill should be housed. But the feds did not agree to her number-one request: to do her time in a women's prison.
That's what Hill wants most. "I would not have to worry about being raped," she told us during an hour-long phone interview from the men's prison in North Carolina where she's currently incarcerated. "I could have freedom of expression. I could be around other women I could identify with.... I identify as a female. I don’t identify with these men. I’m scared of these men."
According to Bureau of Prisons spokesman Ed Ross, the agency's housing decisions are "reviewed by a multidisciplinary team, and individuals are assigned to male or female facilities based on a thorough review of all the available information." So far, those reviews have kept Hill in men's facilities. Her settlement agreement requires her housing situation to be re-evaluated every six months. But it doesn't say what it would take for prison officials to agree to put her in a women's facility.
So how do local policies compare? The Colorado Department of Corrections’ policy states that “in general,” inmates will be housed “in accordance with their natal gender, as determined by their external genitalia," according to an e-mail from department spokewoman Adrienne Jacobson.
"Housing based on external genitalia is the standard used by the overwhelming majority of correctional facilities nationwide," Jacobson explains. "Few correctional facilities in the United States and worldwide have designed housing policies that go beyond placement based on biological sex or genitalia."
The Denver Sheriff's Department is one of the few. In 2012, it adopted a policy that has been hailed as a national model and earned praise for the much-criticized agency. Department spokesman Simon Crittle says the policy was developed "as the result of the growing number of transgender inmates coming into our custody, and the need for staff to be able to respond to transgender needs appropriately." Reports of sexual assaults were not a motivating factor, he says.
The policy works like this: When a transgender inmate is booked into the Denver County Jail, he or she is separated from the rest of the jail population for up to 72 hours, Crittle says. In that time, he says, a "transgender review board" made up of jail staff, community members, members of the LGBT community and inmate advocates assesses the best housing situation for that person. In making its decision, the review board considers the opinion of the transgender inmate, Crittle says.
Inmates also sign a "statement of preference" form that asks for their preferred name and preferred pronoun, Crittle tells us. Inside the jail, transgender inmates can carry a card that states whether they prefer to be called "he" or "she" and whether they'd prefer to be searched by a male or female guard.
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But while the policy is different, the result has been the same. So far, Crittle says, all transgender inmates — more than 750 in the past three years — have been housed according to their physical sex. When asked why, Crittle e-mailed us this explanation: “While we consider what a person might or might not want, we also consider the other inmates, too. Housing someone with male genitalia in an area with women might not always be the best thing to do.”
Courtney Gray, the transgender programs manager at The Center in Denver, helped develop the policy. At first, she says, she was surprised by the fact that inmates were still being housed based on their genitalia. But after speaking with some of them, she says that many of them choose that — especially those who have been to jail before and are used to being housed that way.
"They don't want to upset the apple cart, either," she says.
Whether that will change as the jail's new policy becomes the norm remains to be seen.