Republicans opposed these protections for trans prisoners in the Violence Against Women Act
The House on Thursday passed the Violence Against Women Act (VAWA) reauthorization, with 33 Republicans joining Democrats to vote for the legislation. But many Republicans opposed the bill over provisions aimed at protecting transgender people, including transgender inmates, from violence.
The law, which expired during the partial government shutdown last year, provides programs and services such as funding for rape crisis centers and hotlines, community violence prevention efforts, and legal aid for survivors of domestic violence. The legislation prohibits certain abusers from possessing firearms and Thursday’s version would expand upon those efforts. It was last reauthorized in 2013.
Republicans made their objections to the bill clear on the House floor when they jeered at Rep. Debbie Dingell (D-MI) while she argued in favor of the legislation. GOP members expressed opposition to provisions that acknowledge the threat of sexual violence for transgender people and that restrict abusers’ access to guns. The bill faces tough odds in the Republican-controlled Senate, where Republicans already have voiced objections to it.
The legislation would codify into statute existing regulations for incarcerated transgender people, which has angered Republicans, despite the fact that these standards have existed for some time and were once part of a bipartisan effort. Congress passed the Prison Rape Elimination Act (PREA) in 2003 and President George W. Bush subsequently signed it into law. Congress created a bipartisan commission to study the issue and hold hearings across the United States.
The commission then created proposed standards to address the prevention and detection of and response to prison rape. This included protections for trans prisoners, such as case-by-case housing placement decisions to avoid automatically placing transgender people according to their assigned sex at birth. The standards also addressed search procedures for transgender prisoners. The commission’s recommendations were sent to the Justice Department in 2009 and, in 2012, the department released a final rule to prevent, detect, and respond to prison rape.
If the Senate passes the VAWA reauthorization, it would essentially give the issue of trans prisoner safety more prominence, said Harper Jean Tobin, policy director at the National Center for Transgender Equality.
“By codifying it into statute, the hope is to provide greater clarity, greater awareness of the protections and greater permanence since they came out of such a long process of study through this bipartisan commission, through public comment period, and through the Justice Department and because they deal with such a vulnerable population,” Tobin said. “It’s worthwhile to codify into law as part of an effort to lay out how we’re going to protect women’s safety in prisons.”
At a House Judiciary Committee hearing in March, Republican Reps. Louie Gohmert (TX) and Debbie Lesko (AZ) tried to amend the bill to take out any measures that included protections for transgender people. Lesko introduced an amendment preventing the government from allowing trans women to stay in women’s shelters, which Democrats blocked. Gohmert’s amendment would have changed language specifically to undo the already existing regulatory protections for trans prisoners, going one step further than preventing the protections from being codified it into statute. His amendment failed.
Gohmert said, “I would humbly submit that it’s going to do more harm.”
Republican attempts to remove gender identity language from the bill are particularly harmful for trans prisoners because of the high rates of violence they face while incarcerated. Transgender women housed in men’s prisons are put at risk for sexual violence. A 2007 statewide study in California found that in the state’s correctional facilities, sexual assault and misconduct victimization was more prevalent among transgender inmates compared to inmates in a random sample. Department of Justice data from 2011-2012 showed the rate of sexual assault in that year was about 10 times higher for transgender prisoners.
“Prisoners who are transgender face the highest rates of sexual abuse by other prisoners and by staff of any demographic group of prisoners that has been studied,” Tobin said.
Republicans have framed their concerns around women’s rights. In so doing, they argue against both the Equality Act, a nondiscrimination bill to expand and clarify protections for LGBTQ people, and VAWA’s protections for transgender people. During a congressional hearing on Tuesday about the Equality Act, Republicans said cisgender men would “game the system” by pretending to be transgender women to secure government grants.
“This is a reformulation of the same tired arguments, myths, and lies we have seen for many, many years. They are leading with the frame of women’s rights because their arguments haven’t worked in the past and they’re trying to put it in a new packaging,” Tobin said. “The reason it won’t work is that most advocates in women’s rights, sexual violence, and domestic violence fields and, I dare say, most women, don’t buy it — that other women who happen to be transgender are a threat to them, as opposed to all of the real problems that legislation like VAWA is intended to combat.”
“They are leading with the frame of women’s rights because their arguments haven’t worked in the past and they’re trying to put it in a new packaging.”
Tobin added that in the context of incarceration, these kinds of arguments about transgender women putting cisgender women in harm’s way weren’t being made, let alone substantiated, when the standards were being developed.
“There was no evidence to support these fears in the hearings or public comments gathered by the Justice Department, and there hasn’t really been evidence in the years since their implementation to support these fears,” Tobin said.
Although PREA does allow for financial penalties when institutions don’t comply with these standards, people affected by noncompliance aren’t permitted to file a lawsuit in court over PREA violations. Prisoners would instead have to sue based on a violation of the Eighth Amendment, after exhausting all administrative remedies, according to Lambda Legal, which focuses on LGBTQ rights. The Prison Litigation Reform Act makes it very challenging for prisoners to go to court over their mistreatment in facilities, including for sexual assault. VAWA would not address the relief in court issue, Tobin said.
Jails and prisons have unevenly implemented these regulatory standards. Ella Mae Vail, a transgender woman who stayed at Weber County Jail in Utah said she was so worried about the violence she might experience by being housed with men that she hurt herself in order to be placed in the mental health ward, the Salt Lake Tribune reported. Before she was placed in the mental health ward, male inmates would harass her. After she was placed in the mental health ward, male inmates could still see her while she showered. The jail did not have guidelines on housing transgender inmates.
“In practice, some states have been slower than others to fully implement these standards,” Tobin said. “But we are seeing that, increasingly, you see trans women being placed because it’s going to be more safe for them, along with other women, rather than a facility surrounded by men where they pretty obviously have a target on their backs.”