‘An added punishment’: State houses trans prisoners according to birth sex
Kennedy Holland, a trans woman, spent about five years in Maryland-run jails and prisons. Despite having begun her gender transition at 13 years old, Holland was housed in male facilities or isolated.
The experience terrified Holland. She recounted a time when an incarcerated man pulled her into a prison cell and told her he and his cellmate could rape her if they wanted to.
“I could go nowhere. I could do nothing,” Holland said in an interview with The Baltimore
Sun. “And I really was helpless in that situation, at that moment, to where if they decided to assault me or something was to happen, there would be nothing that I could do.”
Holland and two other trans women sued the Maryland Department of Public Safety and Correctional Services in federal court, saying the agency violated laws designed to protect prisoners from rape and people with disabilities by housing prisoners based on their gender assigned at birth.
The department told The Baltimore Sun that it houses incarcerated trans people on a case-by-case basis in compliance with the federal Prison Rape Elimination Act, which sets standards around housing trans people and requires correctional facilities to protect those at high risk of being sexually assaulted, such as trans people, from likely abusers.
The suit adds to mounting pressure on the corrections department as the issue draws attention from state lawmakers and public attitudes about protecting trans people evolve. A federal judge recently ordered the state to reassess the housing placement of one woman in the case who remains
incarcerated and comply with what it says is its own policy.
DPSCS’s policies and a report it submitted to the state’s budget committees Nov. 1 paint a picture that more closely aligns with activists and lawyers who say that incarcerated trans people are regularly housed according to their assigned gender at birth.
“I’m not aware of anybody who’s been housed based on their gender identity,” said Eve Hill, a lawyer with Brown, Goldstein & Levy who is representing the three trans women.
Two department policies related to housing for trans people appear to contradict each other.
A 2016 directive says “housing placement is based on a number of factors, including the incarcerated individual’s personal feelings about their health, safety, security and well-being.”
But an agency manual states the surgical status of incarcerated trans people is the primary, if not the sole, basis for housing decisions. According to the manual, “incomplete surgical gender reassignment require that the patient be classified according to his or her birth sex for purposes of prison housing, regardless of how long they may have lived their life as a member of the opposite gender.”
Trans people are “usually offered protective custody,” it says, noting “male-to-female transgender women are at greater risk of sexual violence by other male inmates if they are not placed in protective custody.”
Those who have “completed surgical gender reassignment are generally classified and housed according to their reassigned sex.”
Formerly incarcerated people, experts and activists told The Sun that’s the policy state prison officials follow.
In a Nov. 1 report on the “treatment of transgender incarcerated individuals” submitted to the General Assembly, DPSCS admitted as much.
“All transgender individuals are housed according to physical genitalia,” the report said. “A male who has had sexual reassignment surgery can be housed with female individuals.”
In the report and an email to The Sun, DPSCS said that agency manual is under review.
“The intake policy specifically addressing the processing of transgender individuals at intake is still pending completion,” the department’s email said.
The report to the legislature was required by the 2023 Joint Chairmen’s Report, which said budget committee members were “concerned with reports that transgender inmates are subject to high rates of sexual abuse and violence and are placed into inappropriate housing assignments.”
The nonprofit National PREA Resource Center,
which aids corrections agencies in implementing the federal law, says on its website that “a policy that houses transgender or intersex inmates based exclusively on external genital anatomy” fails to meet the law’s standards.
DPSCS said that between 2021 and 2023, the state agency housed 89 people who identified as trans. On Nov. 29, the department said there are currently 81 people being treated for diagnosed gender dysphoria in the department’s facilities — 61 in male facilities and 20 in the female facility. A person with gender dysphoria experiences a disconnect between the gender they were assigned at birth and their gender identity.
“All incarcerated individuals receive regular medical and mental health evaluations, and any individual who identifies as transgender may start to transition while being housed in one of the Department’s facilities,” DPSCS said. “Forty-three incarcerated individuals have been diagnosed as having gender dysphoria since they began their incarceration, and 28 have self-identified as transgender when entering incarceration.”
Sen. Jill P. Carter, a Baltimore Democrat, has introduced legislation twice before to codify the right of trans people to choose prison housing that’s best for them, among other things. The Transgender Respect, Agency and Dignity Act failed to make it out of committee in the 2023 session.
“It’s long overdue,” Carter said. “The prison system is slow to catch up with society, and with the times, in terms of recognizing the need for adequate accommodations for people that identify as transgender and queer and keeping them safe.”
Carter said she knew someone who was abused while jailed in Maryland. She said when she informally asked about changes at that jail, she was “astounded that the attitude was one of not only apathy, but even
one of overly making light of what happened.”
In a letter submitted during the legislative process, DPSCS said “incarcerated individuals are provided the opportunity to participate in the classification case management process” — something witnesses who testified on behalf of Carter’s legislation disputed.
“Allowing an individual to choose housing based solely on their preference as an LGBTQ+ individual removes from the Department the ability to ensure the safety and security of ALL individuals,” the letter reads.
Had her bill passed, people would have been housed according to the gender they identified as before they were incarcerated, Carter said.
In 2015, a judge ruled the Maryland prison system violated federal law by failing to train employees on how to “effectively and professionally communicate with transgender inmates.” The ruling came in a trans woman’s case in which she alleged she was held in solitary confinement for two months in 2014 while routinely harassed and called “it.”
Almost a decade later, other formerly incarcerated transgender people allege they still face such treatment in Maryland prisons.
In her suit, Holland alleges that a male guard at one DPSCS facility opened the door to the shower stall where she was naked and invited incarcerated men to watch her shower, all while calling her “it.”
According to the three trans women’s lawsuit, they were “housed with men, left unprotected from assault, harassed, held in solitary confinement, and denied necessary medical treatment.” Their gender dysphoria worsened and they suffered anxiety and depression, according to the lawsuit.
The complaint, filed in April in Baltimore U.S. District Court, alleges the state is violating PREA and the Americans with Disabilities
Act, citing gender dysphoria as a protected disability.
“There was nothing in the experience of incarceration that felt as though it was to rehabilitate,” said Holland, who served time for armed robbery. “It was strictly warehousing — as well as the added punishment of being a trans woman incarcerated with, unfortunately, male prisoners.”
Holland, 33, started transitioning in 2003 and was diagnosed with gender dysphoria in 2010. She said she initially was treated as a woman when arrested. But following a strip search, jail guards became hostile and aggressive, Holland said in an interview.
“In their eyes, I was a man and I had a penis,” said Holland, who has not undergone vaginoplasty, a gender-affirming procedure that removes the penis and creates a vagina. “There’s no ifs, ands or buts about a penis.”
Some trans people choose not to undergo surgical transitions due to barriers like cost or finding open-minded doctors; others simply don’t want to pursue that step.
According to the lawsuit, when Holland wasn’t housed with men, she was in administrative segregation, once for over a month. During that time, she was let out of her cell every other day for as little as 45 minutes.
DPSCS and other defendants filed a motion to dismiss the case, saying one plaintiff “failed to exhaust her administrative remedies.” They also argued they’re protected by the 11th Amendment, which limits the ability of federal courts to hear suits against states.
The state’s Attorney General’s office, which represents DPSCS in court, declined to comment, citing the ongoing litigation.
U.S. District Judge Matthew Maddox recently issued an order in the case related to Chloe Grey, a trans woman who remains in prison on a life sentence for a double murder. In addition to ordering a reassessment of her housing,
Maddox ordered DPSCS to consistently supply her with hormone treatments and as well as hair removal products, among other things.
“While the battle for justice for our clients is by no means over, we are pleased to be moving in the right direction,” said Jessie Weber, another attorney on the case, in a statement after the decision.
But lawyers and advocates say the women’s experience is typical.
Debra Gardner, legal director for the civil rights nonprofit Public Justice Center, wrote in testimony submitted to the Maryland Senate earlier this year that she has observed “transgender men and women and nonbinary individuals who have been stigmatized, shamed, harassed, misgendered, denied safe housing, denied gender-affirming health care, sexually humiliated, sexually assaulted, and beaten due to their gender identity” at the state-run Baltimore City Detention Center, which is now called the Baltimore Pre-trial Complex.
“They won’t house trans women with women, they’ll only house them with men,” said Hill, who represents Holland and the other two trans women in the suit. “No matter how long they’ve been in transition, no matter how far in the transition process when they come there.”
The state agency controls five detention facilities in Baltimore and 13 correctional facilities across the state.
“The Maryland Department of Public Safety and Correctional Services takes very seriously its responsibility to protect every incarcerated individual’s dignity and safety,” DPSCS said in its statement to The Sun. “The Department has devoted its top experts in medical, mental health, custody and security, policy, and legal domains to address LGBTQ+ issues and serve transgender incarcerated individuals.”
Outside Baltimore, each county sets policies for its own jails.
In Baltimore County, for
example, a written policy says housing assignments for trans people are made on a “case by case” basis and regularly reviewed. But in responding to questions from The Sun, the county said housing is determined by “the sex of the individual and on severity of criminal charges.” Additionally, trans people “would have had to have undergone gender reassignment surgery for their preferred gender” to be housed according to that gender. They live among the general population unless they request protective custody.
As of October, all trans people housed this year at the Baltimore County Detention Center were housed according to the gender assigned to them at birth rather than preferred gender identity.
In both Carroll and Howard counties, trans people are housed separately from the general population.
Camila Reynolds-Dominguez is the policy advocate and legal impact coordinator for FreeState Justice, a Maryland-based LGBTQ+ civil rights organization that supported Carter’s legislation.
Reynolds-Dominguez echoed Gardner and Hill in saying that in every case she knows about, trans people were housed according to their assigned gender at birth and couldn’t transfer to a unit for the other gender.
The state’s conflicting policies for housing trans people run counter to other recent victories for the LGBTQ+ community, such as the General Assembly’s passage this year of a Trans Health Equity Act and Democratic Gov. Wes Moore’s public support of trans Marylanders.
“I think there’s a certain amount of legislative complacency when it comes to populations that are already kind of disfavored or overlooked by the legislature, and kind of chief among those is incarcerated individuals,” Reynolds-Dominguez said. “Hopefully, we can make those places more humane and less abhorrent and harmful to the people who are incarcerated.”