Darby Hickey and Melissa Rothstein, Human Rights Are for Everyone, The Washington Blade, Spetember 26, 2008

D.C. should require the Dept. of Corrections to comply with the Human Rights Act

IN 2005, DISTRICT residents celebrated the enactment of some of the country’s strongest regulations against discrimination toward transgender and gender non-conforming people. Largely as a result of community organizing, “gender identity and expression” was added to the list of protected categories in D.C.’s Human Rights Act — itself one of the most comprehensive anti-discrimination laws in theUnited States. This fall, a critical aspect of these historic regulations might be reversed.

In April, the District’s Inspector General issued a report, warning that the D.C. Department of Corrections (DOC) policy of classifying and housing transgender inmates based on their genitalia, rather than on their gender identity, may be in violation of the Human Rights Act. Rather than demand that the DOC comply with the law, the D.C. Office of Human Rights released proposed changes to the non-discrimination regulations, rewriting the rules covering transgender people.

The proposed revisions would exempt all District agencies, including the Department of Corrections, from complying with the Human Rights Act as it applies to the classification and housing of transgender individuals in the District’s custody. If adopted, these changes would thwart efforts to improve safety in D.C. jails and would encourage continued trans-phobia and homophobia within District agencies.

OVER THE SUMMER, the Office of Human Rights held a public comment period for the proposed regulations, and scores of local and national organizations, Council members and other individuals urged that the regulations not be changed. The decision now rests with the Office of Human Rights and the Commission on Human Rights.

Recent studies have confirmed that transgender women in men’s facilities are sexually assaulted at alarmingly high rates. In one study, conducted in seven California men’s prisons, nearly 60 percent of transgender women reported being sexually assaulted by other inmates. Incidents documented by the press and the Office of Human Rights confirm that transgender women in DOC jails are likewise targeted.

Under the guise of protection, the DOC often segregates transgender women, while keeping them in men’s facilities. Although some transgender inmates have found refuge in segregated units, others have found the isolation to amount to increased punishment, without providing the intended additional protection. Worse still, transgender and other vulnerable inmates are often placed in protective custody against their will, only to be sexually assaulted while there.

Relying solely on genitalia to determine where to house a detainee is problematic. In addition to self-identifying as female, transgender women are typically considered women by many staff and inmates, and are treated as such. Not surprisingly, many of these women are sexually abused.

Moreover, the proposed regulations and related DOC policies would authorize officers to conduct strip searches to establish an inmate’s genitalia. Just Detention International knows from its daily communication with transgender women that such searches are humiliating, and that they frequently are accompanied by taunts and inappropriate remarks, improper touching, and sexual violence.

Housing and Classifying individuals based on their gender identification poses significantly fewer problems than relying on genitalia alone. Other sex-segregated facilities in the District, such as homeless shelters, have successfully implemented policies that align with the law.
Some corrections officials have expressed concerns that the presence of pre-operative transgender women could be alarming to other women inmates, especially as jail showers tend to be communal.
However, such concerns could be alleviated through sensible scheduling of shower times. Implementing and enforcing appropriate policies can ensure that privacy and safety concerns are addressed when housing people according to gender identification.

The D.C. Human Rights Act and its protections of gender identity and expression are an important step forward in the effort to end all forms of discrimination and serve as a model for other cities to treat its diverse residents fairly. Creating an exception for agencies that incarcerate transgender individuals in the District would contradict the very mission of the Act.