Appropriate Placement and Treatment of Transgender Prisoners: Constitutional Concerns and Arguments for Alternative Housing and Treatment Policies

Abstract

This article examines the appropriate placement and treatment of transgender prisoners. It first examines the current prison housing standard in the United States, which is to house transgender prisoners according to birth-sex or to administratively segregate such prisoners from the general population, and the risk of violence and harm this standard housing policy creates. This article then outlines alternative housing policies that adhere to housing a prisoner based on their affirmed gender, rather than birth sex, and how such policies have been demonstrated to ameliorate violence and harm. This article further notes the need for transgender prisoners’ access to hormone therapy and sex reassignment surgery, along with reformed housing policies, in the broader evaluation of prisoners’ welfare. This article then examines how the standard housing and treatment policies employed by most prisons, may violate constitutional law and concludes with a discussion of the need for a certain precision in policy language, when creating appropriate (and constitutional) treatment and housing policies for transgender prisoners.

Keywords: gender, transgender, prison, prisoner, housing, binary, non-binary, constitutional

JEL Classification: k19, i18