Judicial Notebook

The term "transgender" has most recently been used to unify people with transgender identities including a wide variety of subpopulations that differ from traditional, existing gender norms. Transgender offenders encounter significant problems in the criminal justice system. Some of the problems they encounter include the classification of their gender for incarceration, access to health care and potential stereotyping by legal decision-makers. However, there is little psychological research on or legal scholarship regarding the forensic issues faced by this important and complex population.

Where should they go?

Courts have typically categorized and placed transgender inmates according to their biological genitalia, such as in Littleton v. Prange (9 S.W.3d 223, 230-231 [1999]), Meriwether v. Faulkner (821 F.2d 408, 415 [1987]), and Powell v. Shriver (175 F.3d 107, 111 [1999]).

The U.S. Bureau of Prisons has developed guidelines for handling arrests and incarceration of transgender inmates that is consistent with these decisions. Therefore, biologically male transgender offenders with female gender identity are typically incarcerated in a male facility. Inmates who realize their transgender identity after they are incarcerated would have the same concerns.

These transgender inmates may be at risk for abuse by correctional officers and other inmates. The Supreme Court considered violence against transgender inmates in Farmer v. Brennan (128 L. Ed. 2d 811 [1994]), where it held that a prison official violates an inmate's Eighth Amendment rights only when the official is subjectively aware of the risk of harm toward an inmate and purposefully ignores that risk-establishing a high burden of proof for the abused inmate. This potentially increased vulnerability to violence could result in constant fear for transgender inmates or other negative psychological effects.

However, little empirical research has examined the effects of imprisoning transgender offenders based on biology, the prevalence of violence against transgender inmates or the unique psychological problems they may experience while incarcerated.

Health-care needs

Physical and mental health care while incarcerated could also become serious concerns for transgender inmates. For transgender offenders who were undergoing hormonal therapy or sex reassignment at the time of arrest, the continuation of hormone treatment is important to their welfare. However, access to hormonal therapy or surgery can be temporarily or permanently suspended while incarcerated. The administration of hormones requires ongoing care by a physician, and adequate support services are required to assist in the gender transition, as noted in "Transgender Care: Recommended Guidelines, Practical Information, & Personal Accounts" (Temple University Press, 1997).

Abrupt termination of hormonal therapy can be physically dangerous and can also cause adverse emotional effects. This could result in an increased need for specialized health care, mental health services and suicide prevention. Psychological research is required on the mental health implications of incarceration and on suicide rates of transgender inmates.

Punishment beyond the crime

Based on the highly publicized cases involving transgender persons, such as the Brandon/Tina case that was the basis for the movie "Boys Don't Cry,"it is likely that there are both stereotypes about and prejudice against this population. People working in the criminal justice system (such as judges, juries, police and corrections officers) may also have misconceptions of and prejudice against transgender individuals, such as the false notion that all transgender inmates are homosexuals or malingerers. Research that examines these perceptions would be helpful in determining where the misconceptions lie and could help determine the types of discrimination transgender offenders face in the criminal justice system, if any.

For example, a defendant's transgender status could affect decisions to arrest, influence jury verdict decision-making and could lead to disproportionate sentences exceeding what is typical for the crime committed. To date, there is little if any empirical research that examines the verdicts against and the sentences given to transgender offenders in relation to their crimes. This research is crucial to gain insight as to whether transgender offenders are treated differently than nontransgender individuals for similar crimes.

Policy implications

The aforementioned issues require empirical research not only in mental health fields but also in the criminal justice and legal arena. Thus far, little empirical research has been conducted investigating the experiences of transgender offenders and inmates. Careful attention must be given to how the transgender population is defined, and it is vital that empirical investigations are mindful of subpopulations encompassed by this general classification. Research will help the criminal justice system determine the best place to house incarcerated transgender offenders, to provide proper health care and legal representation, and to prevent abuse and excessive punishment.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).