1. PREA and the LGBTI Community: Are you keeping your residents safe?
Ohio Justice Alliance for Community Corrections (OJACC) Annual Conference 2018 Columbus, Ohio
PREA and the LGBTI Community: Are you keeping your residents safe?
Ramona Swayne, SPHR, SHRM-SCP
Managing Director/PREA Coordinator, Alvis, Inc.
DOJ-Certified PREA Auditor

2. Understanding LGBTI Inmates and Residents
Terminology
SOGIE: sexual orientation, gender identity and/or gender expression.
Sexual Orientation is about who you are emotionally, sexually or romantically attracted to whether you are lesbian, gay, bisexual, straight, asexual, other.
Which is different from…
Gender Identity refers to how a person understands their own gender (man, woman, other).
Gender Expression is about how a person expresses their gender identity through their manner of dress, speech, behavior and/or other physical expressions of themselves (masculine, feminine, androgynous, other).

3. Understanding LGBTI Inmates and Residents
Sexual Orientation Lesbian A woman who is emotionally, romantically and sexually attracted to other women. Gay A man who is emotionally, romantically and sexually attracted to other men. Bisexual A man or woman who is emotionally, romantically and sexually attracted to both men and women. Straight A person who is emotionally, romantically and sexually attracted to another person who is of a different sex and/or gender. Asexual A person who is not sexually attracted to any sex and/or gender.

4. Understanding LGBTI Inmates and Residents
Gender Expression
Gender Conforming means a person whose appearance or manner conforms to traditional societal gender expectations (e.g., a person who was designated “female” at birth, who identifies as a girl/woman, and dresses in a way that society determines a girl/woman should dress).
Gender Nonconforming means a person whose appearance or manner does not conform to traditional societal gender expectations (e.g., someone who identifies as a girl/woman but wears clothing typically assigned to boys/men).

5. Understanding LGBTI Inmates and Residents
Transgender is an adjective (always remember to refer to transgender people) that describes a person’s gender identity (i.e., internal sense of feeling male or female) when that identity is different from the person’s assigned sex at birth. Note: This is also an umbrella term for identities such as transsexual, M to F, F to M, Two-Spirit, genderqueer, etc. Note: “Gender Identity Disorder” was replaced with “Gender Dysphoria” in the Diagnostic and Statistical Manual (DSM-5). Cisgender is an adjective that describes a person’s gender identity when that gender identity is the same as their sex assigned at birth.

6. Understanding LGBTI Inmates and Residents
Which is different from… Intersex is an adjective that means a person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or female. Intersex medical conditions are sometimes referred to as disorders of sex development. Note: Approximately 1 in every 1,500 to 2,000 people are born intersex.

7. Understanding LGBTI Inmates and Residents
Another note on intersex DSD New term(s): Disorders of Sex Development and Differences of Sex Development Controversial: Some advocates do not like the term “disorder”

8. Understanding LGBTI Inmates and Residents
Intersex
Type
Chromosomes
Sex Assigned at Birth
Gender Identity
Androgen Insensitivity Syndrome (AIS)
46 XY
C: Female
P: Male or female
C: Woman
P: Woman or Man
Congenital Adrenal Hyperplasia (CAH)
46 XX
(not intersex for those born with 46 XY)
Female or Male
Woman
Klinefelter Syndrome
47 XXY
(and more)
Male
Man

9. Understanding LGBTI Inmates and Residents
Transgender and Gender Nonconformity
Birth Certificate
Gender Identity
Gender Expression
Transgender?
Gender Nonconforming?
Male
Man
Masculine
2) Male
Feminine
3) Male
Woman
4) Female
5) Female
6) Female No No No
Yes
Yes, woman
(transwoman) No No No No
Yes
Yes, man
(transman) No

10. Understanding LGBTI Inmates and Residents
A Note on Perceptions… “Perceived” status Staff responsible for screening, housing/bed placement decisions should be aware of what “perceived” means. Typically, the question refers to how outsiders perceive another person’s sexual orientation, gender identity, or gender expression (SOGIE) and not how one perceives oneself.

11. Bureau of Justice Statistics, 2013 Williams Institute, 2011
Percent

12. Bureau of Justice Statistics, 2013

13. Sexual Victimization of Adult Transgender Inmates – Prison & Jails
Bureau of Justice Statistics Survey of Inmates
Rates of Sexual Victimization of Transgender Inmates by Other Inmates and Staff
Prisons – 39.9% of transgender inmates sexually victimized
33.2% inmate-on-inmate
15.2% staff sexual misconduct
Jails – 26.8% of transgender inmates sexually victimized
15.8% inmate-on-inmate
18.3% staff sexual misconduct
85.1% of these incidents involved unwilling sexual acts (14.9% touching only). Smaller localized studies show significantly higher rates of victimization.

14. Understanding LGBTI Inmates and Residents
Question 1
A person whose appearance or manner does not conform to traditional societal gender expectations (e.g., someone who was born female and identifies as a girl/woman but wears clothing typically assigned to boys/men) is considered to be:
Gay
Gender nonconforming
Transgender
Both (b) and (c)

15. Understanding LGBTI Inmates and Residents
Answer 1 b) Gender nonconforming

16. Understanding LGBTI Inmates and Residents
Question 2
Transgender individuals typically want to be referred to as:
The pronoun that matches the gender they presently identify as
Transgendered
Both a and b

17. Understanding LGBTI Inmates and Residents
Answer 2 a) The pronoun that matches the gender they have transitioned to. For transmen that is usually “he” and “him”; for transwomen the is usually “she” and “her”.

18. Understanding LGBTI Inmates and Residents
Question 3
Transgender women (male-to-female) CANNOT be housed with other women.
True
False

19. Understanding LGBTI Inmates and Residents
Answer 3 b) False. Transgender women can and should be placed where they are most safe. This is typically in women’s facilities of female housing units. Note: Protective custody should never be used to house a transgender inmate based on his or her gender identity.

20. PREA Standards: LGBTI Inmates and Residents
§ – Limits to Cross-Gender Viewing and Searches
Prohibits searching or physical examining a transgender or intersex inmate or resident for the sole purpose o determining genital status.
Security personnel must be trained in conducting professional and respectful cross-gender pat-down searches and searches of transgender and intersex inmates or residents.
Best practice: transgender and intersex inmates and residents to choose the gender of the person to search them.
It is NOT acceptable to use two officers, one male and one female, to search the same transgender person.

21. PREA Standards: LGBTI Inmates and Residents
§ – Staff Training
Requires training on effective and professional communication with lesbian, gay, bisexual, transgender, and intersex (LGBTI) and GNC inmates and residents.
Note: This standard does not apply to lockups.
§ – Screening for Risk of Sexual Victimization and Abusiveness
Screening to determine if an inmate or resident is, or is perceived to be, LGBTI and/or GNC (language slightly different).
§ – Post-Incident Reviews
Consider whether incident was motivated by gender identity or LGBTI identification, status, or perceived status.

22. PREA Standards: LGBTI Inmates and Residents
§ – Use of Screening Information
Prohibits placement of LGBTI inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.
Note: This standard does not apply to lockups.
Unique to Juvenile Facilities
§ : Prohibits placement of LGBTI residents in particular housing, beds, or other assignments solely on the basis of the identification or status. LGBTI identification can NOT be used as a factor to predict sexual abuse.

23. §115.42(c) Use of screening information: housing and program placements for transgender & intersex inmates and residents
Interpretive guidance from the Department of Justice PREA Working Group (c) In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case- by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.

24. §115.42(c) FAQ Guidance
Question: Does a policy that houses transgender or intersex inmates based exclusively on external genital anatomy violate Standard (c) & (e)? Answer: Yes. Standard (c) states: In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by- case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems. In addition, Standard (e) states: A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.

25. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: Being transgender is a known risk factor for being sexually victimized in confinement settings. The standard, therefore, requires that facility, housing, and programming assignments be made “on a case-by-case basis.”

26. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units, or programs based solely on the external genital anatomy violates the standard. A PREA-compliant policy must require an individualized assessment. A policy must give “serious consideration” to transgender or intersex inmates’ own views with respect to safety. (Emphasis added)

27. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: The assessment, therefore, must consider the transgender or intersex inmate’s gender identity – that, if the inmate self-identifies as either male or female. A policy may also consider an inmate’s security threat level, criminal and disciplinary history, current gender expression, medical and mental health information, vulnerability to sexual victimization, and likelihood of perpetrating abuse. The policy will likely consider facility-specific factors as well, including inmate populations, staffing patterns, and physical layouts. The policy must allow for housing by gender identity when appropriate.

28. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: A PREA auditor must examine a facility or agency’s actual practices in addition to reviewing official policy. (Emphasis added)

29. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: A PREA audit that reveals that all transgender or intersex inmates in a facility are, in practice, housed according to their external genital status raises the possibility of non-compliance. The auditor should then closely examine the facility’s actual assessments to determine whether the facility is conducting truly individualized, case-by-case assessments for each transgender or intersex inmate.

30. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: The Department recognizes that the decision as to the nost appropriate housing determination for a transgender or intersex inmate is complicated. Facilities may consider several methods to make these assessments. Best practices include informing decisions on appropriate house through consultation by facility administration, classification and security staff, and medical and mental health professionals. However, a facility should not make a determination about housing for a transgender or intersex inmate based primarily on the complaints of other inmates or staff when those complaints are based on gender identity. (Emphasis added)

31. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: The auditor will likely need to conduct a comprehensive review of the facility’s risk screening and classification processes, specific inmate records, and documentation regarding placement decisions.

32. Appropriate Housing and Programming Placements for Transgender and Intersex Inmates and Residents
From the FAQ: Importantly, the facility shall not place transgender inmates in involuntary segregated housing without adhering to the safeguards in Standard

33. EqualityOhio Alex Shank
THINK AND WAIT
W.A.I.T (Why am I talking)
T.H.I.N.K. - Is what I’m saying…
True, Helpful, Inspiring, Necessary, Kind

34. For More Information
Visit the National PREA Resource Center at: or direct questions to:

35. Citations
Beck, A. J., Berzofsky, M., Caspar, R., & Krebs, C. (2013). Sexual victimization in prisons and jails reported by inmates, Washington, DC: US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Retrieved from
Gates, G.L. (2011). How many people are lesbian, gay, bisexual and transgender? Los Angeles, CA: UCLA School of Law, The Williams Institute. Retrieved from
demographics-studies/how-many-people-are-lesbian-gay-bisexual- and-transgender/