US Justice Department Moves to Undermine LGBTQ+ Protections in Prisons

The US Department of Justice has announced a significant change in policy that aims to eliminate existing protections for LGBTQ+ individuals against sexual abuse in prisons. This directive, issued in a memo on March 15, 2024, states that prisons and jails will no longer be held accountable for violations of standards designed to prevent harassment and abuse of incarcerated LGBTQ+ individuals. Advocates have expressed serious concerns that this move will lead to an increase in assaults within correctional facilities.

The memo, sent by Tammie Gregg, the principal deputy director of the Bureau of Justice Assistance, indicates that the Department of Justice will cease audits that assess compliance with the protections established under the Prison Rape Elimination Act (PREA). Enacted in 2003 with unanimous support from Congress, PREA includes provisions that require officials to evaluate the risk of sexual assault for incarcerated individuals, particularly considering their LGBTQ+ status.

This policy shift aligns with efforts to implement an executive order from former President Donald Trump, which sought to redefine the treatment of transgender individuals in federal custody. The order, referred to as “restoring biological truth,” directed the federal Bureau of Prisons to cease providing gender-affirming care and to prevent transgender women from being housed in women’s facilities.

The Justice Department has not provided immediate comments regarding the implications of this directive. However, Gregg’s memo instructs PREA auditors to disregard LGBTQ+ protections in future evaluations. This is a troubling development, according to Linda McFarlane, executive director of the human rights organization Just Detention International. She stated, “The proposed revisions to the PREA standards will lead to increased chaos and violence inside prisons and jails, placing staff and incarcerated people in greater danger.”

McFarlane emphasized that even with current protections, incarcerated transgender individuals already face heightened risks of abuse. “I’ve never met a trans person in detention who has not experienced sexual abuse or harassment while incarcerated,” she noted.

Despite previous court rulings that have blocked Trump’s executive order, the memo’s directives may complicate the existing legal landscape. Some transgender women have faced transfers from women’s facilities to men’s prisons, a practice later reversed by court decisions. Nevertheless, many transgender individuals continue to be housed in facilities that do not correspond with their gender identity.

Legal professionals have condemned the Justice Department’s latest actions. Kara Janssen, an attorney who has represented transgender women in federal custody, commented, “This is putting not only our clients in an incredibly dangerous situation, it’s putting all these facilities in an almost impossible position, with the federal government telling them not to comply with their own laws.”

While the memo raises significant legal and ethical concerns, it does not eliminate constitutional protections against cruel and unusual punishment. Janssen remarked, “When people are assaulted as a result of these changes, there is liability for these facilities. That is not going away.”

The implications of these changes extend to the operational challenges faced by PREA monitors. Shana Knizhnik, a senior staff attorney with the American Civil Liberties Union’s LGBTQ & HIV project, highlighted the confusion that the memo will create for auditors. “This gives more license to individuals to target trans, intersex and other LGBTQ+ folks in carceral settings and ignore their obligations under the law,” she stated.

Despite the Justice Department’s shift, Knizhnik emphasized that PREA remains in effect and that institutions are still required to uphold its standards. Advocates are calling for continued vigilance to protect the rights and safety of LGBTQ+ individuals in correctional facilities, underscoring that there are those outside the system committed to ensuring their safety and dignity.