The US Department of Justice (DoJ) has initiated a significant policy change that could undermine protections for LGBTQ+ individuals in prison systems. Effective immediately, the new directive states that prisons and jails will no longer be held responsible for violations of standards designed to guard against sexual abuse, harassment, and rape of LGBTQ+ inmates. Advocates have described this shift as “reckless and dangerous,” warning it may lead to increased violence within correctional facilities.
In a memo issued on March 5, 2024, Tammie Gregg, principal deputy director of the Bureau of Justice Assistance, outlined the changes, emphasizing that the DoJ is currently revising regulations under the Prison Rape Elimination Act (PREA). This federal law, enacted unanimously by Congress in 2003, mandates that incarcerated individuals be screened for their risk of sexual assault, with specific considerations for LGBTQ+ status during housing assignments. The new directive halts audits that monitor compliance with these crucial protections, raising concerns among human rights advocates.
Revisions Linked to Previous Administration’s Orders
The policy changes align with one of former President Donald Trump’s executive orders aimed at restricting the rights of transgender individuals within the prison system. Specifically, the “restoring biological truth” order, issued on Trump’s inauguration day, sought to bar transgender women from women’s housing and instructed the federal Bureau of Prisons to cease providing gender-affirming care to incarcerated transgender individuals.
Gregg’s memo to PREA auditors directed them to disregard LGBTQ+ protections in future compliance reviews. This has generated alarm among advocacy groups, with Linda McFarlane, executive director of Just Detention International, stating that the proposed revisions “will lead to increased chaos and violence inside prisons and jails.” She highlighted the risks faced by transgender and gender-nonconforming individuals, who already experience high levels of abuse, saying, “I’ve never met a trans person in detention who has not experienced sexual abuse or harassment while incarcerated.”
The amendments to PREA standards include crucial policies that mandate risk assessments for transgender, intersex, and gender-nonconforming individuals, as well as regulations that protect them from discriminatory search practices by staff. These protections are vital in ensuring that trans women are searched by female officers and that invasive examinations are minimized.
Legal Implications and Ongoing Advocacy
Despite the DoJ’s recent changes, constitutional protections against cruel and unusual punishment remain intact. Attorney Kara Janssen, who represents transgender women in litigation against the Bureau of Prisons, condemned the memo, stating that it places both incarcerated individuals and prison facilities in precarious positions. She remarked, “It’s saying you don’t have to be afraid to violate the law … and you can do these searches as disrespectfully as possible.”
Shana Knizhnik, senior staff attorney with the American Civil Liberties Union’s LGBTQ & HIV project, expressed concern over the implications of the memo for PREA monitors. She noted that while PREA continues to be the law, the new directive sends a troubling message to those responsible for maintaining safety in custody. “This gives more license to individuals to target trans, intersex, and other LGBTQ+ folks in carceral settings,” Knizhnik stated.
The memo’s release follows recent legal battles over the treatment of transgender individuals in federal custody. Earlier in 2024, some trans women were transferred from women’s facilities to men’s prisons, but courts later ordered their return, reaffirming the need for housing consistency with individuals’ gender identities.
As the Department of Justice navigates this policy shift, advocates are calling for continued adherence to PREA standards, emphasizing that the safety and dignity of LGBTQ+ individuals in correctional facilities must be prioritized. With these changes now in effect, the future of protections for these vulnerable populations remains uncertain, raising critical questions about oversight and accountability within the prison system.
