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On the Department of Justice, North Carolina, and Transgender Prisoners

Last week, the Department of Justice broke its silence on the goings on in North Carolina regarding the anti-trans bathroom laws currently in place. In case you’ve not heard, the North Carolinian government has enacted a law stating that trans people are not allowed to use the restroom that lines up with their gender. The law has been described as barbaric and inhumane by nearly every human rights group in the country. Despite this, Governor Pat McCrory has doubled down on the law, insisting upon its righteousness. In response to McCrory digging in his heels, the Department of Justice has filed a lawsuit against the state of North Carolina, saying that by enforcing this law, they are breaking federal law.

This suit comes as a countersuit to the state’s original lawsuit, which asks for the federal government to allow them to uphold their law. In the countersuit, Attorney General Loretta Lynch touched on the aspects of the bathroom law that aren’t readily visible. In addition to laying out the terms of the lawsuit, she commented on the issue at hand, saying:

This action is about a great deal more than just bathrooms. This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them — indeed, to protect all of us. And it’s about the founding ideals that have led this country — haltingly but inexorably — in the direction of fairness, inclusion and equality for all Americans.

This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation. We saw it in the Jim Crow laws that followed the Emancipation Proclamation. We saw it in fierce and widespread resistance to Brown v. Board of Education. And we saw it in the proliferation of state bans on same-sex unions intended to stifle any hope that gay and lesbian Americans might one day be afforded the right to marry.

Dignity and respect. With those two words, Lynch found the linchpin (sorry I couldn’t resist) to this entire debacle. In depriving trans people the use of bathrooms, the North Carolina government sends the message that trans people are not deserving of even the most basic dignities and respect afforded to human beings. They dehumanize and demonize trans people because of some misplaced moral righteousness in a “protection” that a great many people never really asked for, based on an unfounded fear of a hypothetical situation that has never, ever occurred in the history of, well, ever.

But it’s in addressing all Americans where Lynch’s words enter a bit of a morally grey area. One need not look hard to find evidence of the federal government’s hypocrisy. Take for example Chelsea Manning, who, under current laws, is unable to grow her hair out past what can be considered a “masculine length.” She wrote about how she is forced to have her hair cut every two weeks to prevent her hair from growing out too long. It’s true that she’s been afforded hormone replacement therapy as well as cosmetics, but in restricting things like her hair length, it’s clear that the Department of Defense doesn’t quite accept Manning for the woman that she knows herself to be.

The ACLU filed a lawsuit against the Department of Defense on behalf of Manning, arguing that the law is not only unconstitutional (as her current treatment falls under cruel and unusual punishment), but that it’s also unconscionable. As well, the ACLU is fighting on behalf of trans prisoners throughout the system, not just Manning. According to a study carried out last June by the National Center for Transgender Equality, transgender inmates disproportionately face a higher chance of being arrested at some point in their lives, more so for trans people of color. As well, once imprisoned, trans people face a higher risk of abuse at the hands of police and their fellow inmates.

For example: a New York Times editorial shared the story of Estrella Sánchez, who was arrested for illegally immigrating to the U.S. from Mexico to escape abuse she experienced because she is trans. There, she was slashed across the chest by an inmate who threatened to “pop her chest.” She has since been placed on supervised release while she waits for her immigration case to go through the system.

The editorial goes on to say, “When they are in custody, transgender people face disproportionate risks. According to a 2011-12 survey by the Bureau of Justice Statistics, 39.9 percent of transgender prison inmates and 26.8 percent of transgender jail inmates reported unwanted sexual activity with other inmates or sexual activity with prison staff members, which is always considered non-consensual under the law, in the previous year — 10 times higher than for the general prison and jail populations.”

These horrifying realities often come into being as a result of the fact that trans people are placed into incorrect housing and prisons; trans women are placed in men’s prisons, and vice versa for trans men.

What’s clear is that the Federal Bureau of Prisons (for which the Department of Justice is responsible) has no clue how to handle trans inmates. By following the letter of their law, they are causing more harm than good to trans inmates. While the argument may be made that as inmates, they have lost most their rights, it still doesn’t change the fact that inmates are deserving of the right to be treated as human. In refusing to acknowledge a trans prisoner’s gender identity, they deny that basic right, that same basic right that Attorney General Lynch holds up as a banner in the face of the North Carolinian government.

This isn’t to say that nothing is being done on the side of prisons and the federal government. San Francisco County Jails are among the first in the nation to allow prisoners to be housed in prisons that are in line with their gender identity. In 2003, the government passed the Prison Rape Elimination Act, hoping to curb prison rape. It instituted a “zero-tolerance” policy regarding rape while under custody. However, this act often becomes a weapon wielded against those who need its protection the most, namely, trans prisoners. Chase Stangio, attorney for the ACLU in their case against the DoD on behalf of Chelsea Manning, described how that happens in an ACLU blog post:

The Idaho Department of Corrections in its PREA directive connects its ban on feminine appearance in men’s facilities to its obligation to prevent sexual violence:

To foster an environment safe from sexual misconduct, offenders are prohibited from dressing or displaying the appearance of the opposite gender. Specifically, male offenders displaying feminine or effeminate appearance and female offenders displaying masculine appearance to include, but not limited to, the following:

  • Hairstyles
  • Shaping eyebrows
  • Face makeup
  • Undergarments
  • Jewelry
  • Gender opposite clothing

In this case, the law becomes a reason for the Idaho DoC to say, “We’re prohibiting you from doing these things for your own good.” In that way, they are in compliance with the law. Couple that with the fact that trans women prisoners are not seen as women, but as men, and you can see how they often slip through a gaping crack in the system.

It is in the hollow of that crack Attorney General Lynch’s words ring dissonant. Don’t get me wrong; I am touched and moved that the government spoke up in this regard. Hell, I find myself still choking up a bit as I read (and re-read) their statement directed at trans people. It’s not every day you hear the government say (emphasis mine), “No matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward. Please know that history is on your side.”

As well, the Obama Administration will forever stand as the administration where we saw the very first saying of the words “lesbian,” “bisexual,” and “transgender” in the State of the Union. Strides have indeed been made, but it is in those strides that we must not forget those among us who find their voices diminished or silenced by those who would carry us along. With one hand, the government holds up the rights of trans people in what feels like a very decisive moment in history, and yet, with the other, they hold down the rights of those housed within their very own system.

If the goal of this lawsuit against North Carolina is to reinforce the fact that trans people are human beings and thus deserve the same rights as any other human being, then it is absolutely critical that the federal government look at its own treatment of trans people lest these words turn hollow and dry.

This entire thing is, after all, about dignity and respect for all trans people, is it not?

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