An Overview of Issues Facing Queer Prisoners
by Jason Lydon
Discussions about queer people always need to start with a definition of those whom we are talking about. We are looking at people who openly identify as gay, lesbian, bisexual, and/or transgender. We also need to look at those who are closeted and those who do not identify with those same terms. Often, predominantly white gay and lesbian organizations forget to look at same-gender loving folks and those who use terms like “on the down low,”1 as well as people who simply do not fit into society’s, or the queer subulture’s, norms of gender and sexuality. This article attempts to include all of these people.
Prisoners have experienced similar socialization around sexuality and gender as those of us not in prison. As dangerous as we know our culture to be for people outside of prison who do not identify as heterosexual or fall within the accepted ideas of gender, we must understand how much more dangerous it is inside the prison walls for queer identified persons.
Rape and other Coercive Sex Abuses
The organization Stop Prisoner Rape www.spr.org, a national nonprofit that works to end sexual violence against those who are incarcerated in men’s prisons, women’s prisons, and youth facilities, has examined the impact of rape on all prisoners. Many studies by this group make clear that those who are gay or perceived to be gay are much more likely targets for harassment and rape than other prisoners.
Rape in U.S. prisons is a huge problem. Much of the rape in prison is violently forced and brutal, leaving people’s bodies bloody and broken. Prison rape also comes in the form of coercion. In order to maintain safety, some prisoners will find another prisoner to “protect” them soon after entering prison. In exchange for oral or anal sex on command the “man,” “daddy,” or “jocker” will protect his “bitch,” “boy,” or “catcher,” and stop others from harassing or raping him. However, there are times when the “man” will trade his “boy” in order to settle debts or in exchange for other benefits. If as a result the “boy” is forced to have sex against his will, this constitutes sexual slavery.
Because of how coerced rape occurs, guards will often ignore rape reports from inmates. Ignoring reports of sexual slavery and rape is abusive, and prison guards are supposedly ordered to keep prisoners safe. It is also important to recognize that sexual abuse by guards can take other forms as well. There are guards who place prisoners they do not like, or whom they want to discipline, in the same cells as known sexual predators. The outcomes of those situations are known and deliberately set up by prison guards. We don’t need to look to Guantanamo Bay or Abu Ghraib to find torture in prisons.
Trangender Persons and Medical Treatment
Transgender women in men’s prisons are at an especially high risk for sexual assault. To make classification based on genitalia is to place certain women at high risk in men’s prisons. Incarcerated women need to be placed in women’s prisons. This is not to say that all transgender men should therefore be placed in men’s prisons. They, too, would be particularly vulnerable. Clearly the best solution is the abolition of the prison system, but until then alternatives need to be created to protect people’s bodies and identities.
There are a number of organizations around the country working to serve transgender folks in prison. The National Center for Lesbian Rights, the Transgender Law Center, and the Sylvia Rivera Law Project are the best known, but more advocacy is clearly needed. Since the U.S. Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994), advocacy concerning the responsibility of prisons to protect inmates has become even more difficult. The Farmer decision made it more difficult to bring Eighth Amendment lawsuits by requiring that plaintiffs prove “deliberate indifference” on behalf of an offending prison guard or institution before they could recover for cases of severe abuse or neglect.
Having to prove deliberate indifference is of great concern for transgender prisoners who file lawsuits seeking hormone replacement therapy. The federal Bureau of Prison has adopted a “freezing” policy for transsexual people. Transgender people who were legally prescribed hormones when they entered prison would continue to receive them. All others would be denied treatment, even if they had been receiving hormones without prescription. Stopping hormones abruptly can be very dangerous to a person’s health, but is inevitable for many when they begin to serve their sentences.
The problem for transgender prisoners who have not been on hormones before being incarcerated is acute. They should have the right to hormones as well. In Kosilek v. Maloney, 221 F.Supp.2d 156 (2002), a Massachusetts court found that the plaintiff’s transsexualism constituted a “serious medical need” and directed prison officials to provide adequate treatment as recommended by a physician experienced with treating gender identity disorder. If hormones and psychotherapy were insufficient to treat Kosilek’s serious medical need, the DOC was to consider whether sex reassignment surgery “might be deemed medically necessary.” This establishes a precedent that goes well beyond the policy of the Bureau of Prisons. Even if one was not on hormones before being incarcerated, they should have the right to receive the treatment if it is deemed medically necessary by a doctor. This certainly brings up the long debated question about the impact of having “Gender Identity Disorder” as a medical diagnosis, a question that seriously affects many people.
Consensual Sex and Safer Sex Supplies
Within the prison walls there are those queer people who do find love, or affection, or some kind of consensual sex. Their love and/or sex should not be disciplined or shamed. Love can indeed be found in strange places, including prisons. When imprisoned with others for years or the rest of one’s life, it is not unlikely that one might meet another person with whom one develops a deep connection. This could become a friendship, romantic relationship, or simply sexual exchange. Prohibiting all consensual sex creates an atmosphere of secrecy and denial.
Sex between prisoners and guards is inherently questionable because of power. The relationship between guards and prisoners is extremely out of balance and to include sex in those relationships would very likely not be consensual or based in shared power. There is also reason to be concerned about sex between prisoners. Much like on the outside, people in prison engage in sex they are not totally comfortable with. Power imbalance exists between those with more money in their canteen and those with out any money; between those who have been in for a long time and are familiar with the structure and those who are new; between those with strong support systems and those with no one.
However, sex is going to happen, in both healthy and unhealthy relationships in and out of prison. When sex happens protection needs to be available (i.e. condoms, dental dams, etc.). Because safer sex supplies are not made available to prisoners, the rate of HIV/AIDS and other STDs is much higher than they need to be2. By not providing safer-sex supplies someone who was sentenced to a few months or years in prison can receive a death sentence because of exposure to sexually transmitted infections. The healthcare available to people in prison is atrocious, we should not be creating more reasons to increase the line at the prison infirmary.
Other Forms of Discrimination
Many prisons around the country do not allow printed material into the prison that could be considered homosexual or transgender. Some parole boards have denied prisoners parole because of their sexuality. Our culture should not be criminalizing queerness while we claim that all are created equal.
While supporting queer folk in prison is imperative, we also need to look at why they are getting into the system in the first place. Even after the Supreme Court overturned the “sodomy” laws that criminalized essentially all sex between “same sex” people, other homophobic laws and policies continue to exist. There are still discrepancies between “same sex” and “opposite sex” age of consent laws. Therefore, more queer folks are targeted with these charges and imprisoned. Furthermore, we know that queer youth make up a disproportionate percentage of homeless youth. Homelessness is directly correlated with “crimes” of poverty and survival such as theft, sex work, and drug use. The prison system is a modern-day plantation incarcerating adult Latino males at a rate of 1,717 per 100,000, and adult black males at a rate of 4,919 per 100,000 (Prison and Jail Inmates at Midyear 2004). This racism places queers of color behind bars far more often than white queers. While the many mainstream gay and lesbian organizations can spend seemingly unlimited funds to secure the right to get married, far more marginalized queers are being targeted and intimidated by the police.
Future Directions and Resources
We need to build healthy communities of support for everyone, including those who are locked up in our prisons. It is not uncommon to find references to prison rape that sexualize and sensationalize while simultaneously trivializing the horror of the experience and ignoring the cries of those most negatively affected. We need to make visible the struggle of all people in prison and help their voices emerge from behind the walls and into our individual and collective consciousness. Becoming aware is an important first step.
The following is a list of great websites with useful resources and guidance for further action.
Critical Resistance: www.criticalresistance.org
Human Rights Watch: www.hrw.org
Prison Talk Online: www.prisontalk.com
Just Incarceration: www.spr.org
The Sylvia Rivera Law Project: www.srlp.org
The National Center for Lesbian Rights: www.nclrights.org
Transgender Law Center: www.transgenderlawcenter.org
Trans, Gender-Vairant, & Intersex Justice Project www.tgijp.org
1 A term used for men who have sex with men, but who identify neither as homosexual or bisexual.
2 In 2000, the rate of HIV infection among those Massachusetts’ prisons was 10 times the rate of infection among the general population. Massachusetts Public Health Association, Correctional Health: The Missing Key to Improving the Public’s Health and Safety, October 2003, 8.