The US Department of Justice has announced significant changes to regulations protecting LGBTQ+ individuals from sexual abuse in prisons. A memo released on March 15, 2024, indicates that prisons and jails will no longer be held accountable for violating standards intended to shield LGBTQ+ people from harassment and assault. This decision has drawn sharp criticism from advocacy groups, who describe it as “reckless and dangerous.”
The memo, issued by Tammie Gregg, principal deputy director of the Bureau of Justice Assistance, states that effective immediately, compliance audits regarding these protections will cease. The directive is part of a broader effort to revise the regulations under the Prison Rape Elimination Act (PREA), a federal law designed to address the high rates of violence faced by transgender and gender-nonconforming individuals in correctional facilities.
Since its passage in 2003, PREA has mandated that incarcerated individuals be assessed for their risk of sexual assault, taking into account their LGBTQ+ status when determining housing placements. This law was enacted unanimously by Congress and applies to all correctional facilities nationwide.
The recent policy shift echoes Donald Trump’s executive order issued on his inauguration day, which sought to restrict the rights of transgender individuals in prisons. The order aimed to bar transgender women from women’s housing and halted gender-affirming care for incarcerated trans individuals. The Department of Justice’s memo suggests a concerted effort to align current policies with this executive order.
In her communication to PREA auditors, Gregg directed them to disregard LGBTQ+ protections in future compliance assessments. This change will affect several critical regulations, including those requiring that transgender, intersex, and gender-nonconforming individuals be screened for victimization risk, and those ensuring that such individuals are treated respectfully during searches.
The implications of this memo have sparked alarm among human rights advocates. Linda McFarlane, executive director of Just Detention International, stated that these proposed revisions will likely lead to increased violence and chaos within correctional facilities. She expressed concern that the removal of oversight mechanisms could allow perpetrators to act without fear of repercussions.
“This is sickening,” McFarlane remarked. “It’s already difficult for incarcerated trans people, who face significant risks of abuse even with the protections in place. The loss of these standards will only exacerbate their vulnerability.”
Despite court rulings that have temporarily blocked some of Trump’s executive order provisions, the majority of incarcerated transgender individuals still find themselves placed in facilities that do not correspond with their gender identity. Earlier this year, some trans women were moved from women’s to men’s facilities, only to be ordered back by the courts.
Legal experts have voiced their concerns about the ramifications of the DOJ’s new directive. Kara Janssen, an attorney representing trans individuals in litigation against the Bureau of Prisons, condemned the memo, stating it places both incarcerated individuals and prison staff in precarious positions. “This is putting not only our clients in an incredibly dangerous situation, but all these facilities in an almost impossible position,” she said.
Legal representatives also emphasize that constitutional protections against cruel and unusual punishment remain intact. “When individuals are assaulted as a result of these changes, there is liability for these facilities,” Janssen added.
The American Civil Liberties Union (ACLU) has similarly expressed alarm over the DOJ’s policy change. Shana Knizhnik, senior staff attorney with the ACLU’s LGBTQ & HIV project, highlighted the challenges that PREA monitors will face in light of the new directive. While she reiterated that PREA remains the law, she acknowledged the potential for officials to ignore their obligations to protect vulnerable populations.
“The signal this sends to those in charge of maintaining safety in custody is concerning,” Knizhnik stated. “It gives more license to individuals to target trans and other LGBTQ+ individuals in carceral settings.”
As the DOJ seeks to amend PREA regulations, advocates continue to stress the importance of upholding protections for incarcerated LGBTQ+ individuals. Despite the uncertain future of these safeguards, support exists for those affected. “It’s crucial for people to know that there are individuals and organizations fighting for their safety and rights,” Knizhnik concluded.
As this situation develops, the implications for LGBTQ+ individuals in US correctional facilities remain critical, with potential increases in violence and discrimination looming as a direct consequence of these policy changes.
