Since the birth of America, our nation has been known for being a culturally diverse society that welcomes people from everywhere in the world, regardless of race, creed, and background. Given the importance that has been placed on creating this diverse society, one would expect that America’s open-minded and welcoming repute towards people with different backgrounds would translate into the values, aims, and sentiments of the American legal system. Instead, the American legal system has evolved into one that is based on the need for absolute, rigid and identifiable categories with a distaste for ambiguity, particularly as applied to transgendered/transsexual immigrant detainees.
In American society, which appears to be so focused on being able to clearly identify people by checking a box, a transgendered/transsexual immigrant detainee is the epitome of the indefinable. Ze1 presents a serious threat to society’s need for having rigid categories. Society does not understand if ze is male or female, and instead it views hir2 as being something caught in between the two. This lack of understanding of the trans individual causes conflict when dealing with the placement of a detainee based on gender. As a result, ze is faced with a unique struggle in proving hir3 gender. Ze must not only fight for legitimacy to be American, but ze must also fight to be the gender ze so chooses. Ze is trapped with nowhere to go. Hir homeland has rejected hir for who ze is, and America has rejected hir for who ze is not, leaving hir oppressed in a legal system that has yet to begin to understand hir predicament. Hir imprisonment is one that extends beyond that of the four cell walls of a detention center to being in a body that is not truly hirs, battling with the essence of what it means to be male and female, masculine and feminine. This article briefly explores some of the bases for the struggles of these individuals and how those struggles are exacerbated in the immigrant detainee system, and also suggests some possible remedies to improve the same.
The Medical Model and the Law
When determining the legal status of a trans individual, the legal community has chosen to base its determinations upon narrowly defined and socially “appropriate” gender roles by interpreting the medical determinations of sex. “In essence, the medical community determines the status of biology, while the legal community determines the status of one’s body (how to live assigned to a particular sex).”4 The United States Supreme Court has adopted the American Medical Association’s definition that a transsexual is: “one who has ‘[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex,’ and who typically seeks medical treatment, including hormonal therapy and surgery to bring about a permanent sex change.”5 Although courts have recognized the chosen sex of individual transsexual people, the recognition is highly dependent on the particular judge hearing the case, the jurisdiction and the legal context in which the question is raised.6 “The law, in short, is very thin, heterogeneous, and ad hoc. But one consistent theme clearly emerges: Courts generally will not recognize a transsexual person’s chosen sex or gender without successful completion of sex-reassignment surgery.”7 The legal system relies on the classifications within the medical community differentiating transsexuals that are post-operative or pre-operative8 and since “the law [is] a system of regulations that depends upon precise definition, [it] utilizes this diagnosis as another category upon which to base its decisions.”9
Currently, the legal determinations used in determining who is considered transsexual are ambiguous, unclear, and capricious. This ambiguity is a direct result of discord within the judicial community with regards to how “transsexual sex” should be determined and what rights should be awarded based on the determination.10 For example, some jurisdictions allow post-operative transsexuals to define their own sex in order to attain a new or amended birth certificate or obtain a marriage license, and others do not. Some states refuse to recognize a post-operative transsexual’s new anatomical sex altogether, making of the transsexual’s body a mockery, condemning hir to live the rest of hir days in a body that should be a source of pride and personal honor but is instead downgraded to a humiliating prison, a constant reminder of hir sexual deviance.11
ICE Detention is different from Criminal Detention
The criminal incarceration system, unlike Immigration and Custom Enforcement’s (“ICE”) detention, refers to the authority of the government to incarcerate individuals charged with, or convicted of, criminal offenses.12 ICE does not have the authority to detain aliens13 for criminal violations.14 Rather, pursuant to the Immigration and Nationality Act, ICE has the authority to detain aliens who may be in violation of administrative immigration law and are subject to removal.15
Although immigration detention is unlike criminal incarceration, society tends to view and treat immigrant detainees as being comparable to criminal detainees, and both populations are typically handled in similar ways.16 With only a few exceptions, the facilities that ICE uses to detain aliens were originally built – and currently operate – as jails and prisons to confine pre-trial and sentenced felons.17 The design of these secure facilities is based upon principles of command and control.18 The facilities are typically in remote locations and at considerable distances from counsel and/or communities.19 Along these same lines, ICE has attempted to adopt standards that are based upon corrections law and promulgated by correctional organizations to guide the operation of jails and prisons.20
Treatment of Trans individuals in Detention Facilities
There is a great need for laws pertaining to trans individuals to be disseminated and explained to government employees and institutional authorities so that they can properly assist trans individuals.21 Little things, such as training the employees to use a trans individual’s chosen name rather than birth name, and using the gender pronoun with which ze identifies, are small details that can make a huge difference to the mental welfare of trans detainees.
It is crucial to acknowledge that gender segregation occurs in nearly every detention institution in the country.22 This segregation certainly plays a role in the discrimination that transgender people face in such facilities. However, equally as harmful are the gendered expectations that this segregation creates. The existence of a “men’s” institution and a “women’s” institution, for instance, not only raises expectations about the gender of the people housed there, but also the stereotypes associated with that gender. These expectations and stereotypes are then played out in the way in which prisoners are recognized and treated.23
Inmates who deviate from the norms of society – such as those who have diverged from gender norms – tend to become a target in the context of jail culture.24 Supporting this idea are findings from Human Rights Watch that state that “empirical data on prison sexual violence suggest that it is not a random activity, but arises from the choosing of particular victims who … are believed to be more vulnerable.”25 This vulnerability places the trans detainee at a “heightened risk of torture, sexual assault, rape, and ill treatment.” 26
The ill treatment of trans detainees is perpetuated because very few prison systems have clearly articulated policies on how to address the needs of trans detainees.27 As a result, many trans detainees have little access to protection from these crimes and “tend to endure them in silence.”28 They do not speak up about the injustices committed against them for a number of reasons including that they may believe that they will be “disliked and feared by some guards, as well as by other inmates.”29 They also may fear sparking more attacks if it becomes known that they were assaulted, raped, or harassed.30
Categorizing trans detainees is very difficult, especially if they are pre-operative. There is the fear that if they are placed with their chosen gender they “may pose a threat to other prisoners – particularly women.”31 In order to avoid such difficulties in violating some detainee’s rights while protecting others, one response in classifying them has been to detain them in isolation.32 This solution is harmful to the detainees because it is an assault on their dignity, identity, and selfhood.33
While ICE has implemented extensive guidelines for their immigrant detention facilities, they have not made any effort in addressing the needs of trans detainees who are housed within their facilities, nor have they made any comprehensive effort to create an overarching, consistent policy among all of their detention facilities nationwide. Since there are no protocols for how trans detainees are treated, often their treatment varies dramatically from staffer to staffer and facility to facility. As a result, there are instances where ICE personnel treat the detainees in a derogatory manner. For these reasons, ICE needs to take initiative in training its personnel in transgender/transsexual issues and needs to bring the agency’s detention standards in line with the federal views regarding gender non-discrimination.
By implementing more sensitive detention standards, ICE will ensure that trans detainees are treated more fairly and at the very least are having their basic needs met, such as receiving proper health care, hygiene items, and gender appropriate clothing. In addition, with the implementation of these standards, ICE will be taking large proactive strides towards lowering instances of sexual violence and rape in their detention facilities. By implementing more gender sensitive detention standards, detention facilities will ensure that they are reducing – with the goal of ultimately ending – the dehumanizing violence to which trans detainees are susceptible.
Annette De La Torre is an Associate at Foley & Lardner LLP