DoJ moves to eliminate sexual abuse protections for LGBTQ+ people in prisons

The US Department of Justice has moved to eliminate rules protecting LGBTQ+ people from sexual abuse in prisons, a shift advocates say is “reckless and dangerous” and will lead to increased assaults behind bars.

A justice department memo issued on Tuesday said “effective immediately”, prisons and jails will no longer be held responsible for violations of standards meant to shield LGBTQ+ people from harassment, abuse and rape. It also directed inspectors to stop auditing facilities for compliance with those protections. The justice department is in the process of seeking formal updates to the rules, the memo said.

The directive relates to regulations under the Prison Rape Elimination Act (Prea), a longstanding federal law which says incarcerated people should be screened for their risk of facing sexual assault when officials place them in housing and that assessments must consider LGBTQ+ status.

Prea, passed unanimously by Congress in 2003, includes standards aimed at addressing the high levels of violence that transgender, gender-nonconforming and queer people face in jails and prisons across the US. Prea applies to all correctional facilities.

The memo from Tammie Gregg, principal deputy director of the Bureau of Justice Assistance, which is part of the justice department, said the policy shifts were designed to align with one of Donald Trump’s signature anti-trans executive orders. The “restoring biological truth” order, issued on Trump’s inauguration day, called for transgender women to be banned from women’s housing in correctional facilities and dictated that the federal Bureau of Prisons stop providing gender-affirming care to incarcerated trans people.

The Department of Justice did not immediately respond to a request for comment.

Gregg’s memo was sent to Prea auditors, who review compliance with the law, directing the monitors to ignore LGBTQ+ protections in future audits. The justice department, Gregg said, was “currently updating” its Prea standards to align with the president’s order.

The affected regulations, the memo says, include policies mandating that trans, intersex and gender-nonconforming people be “screened for risk of victimization”. It also affects regulations designed to protect LGBTQ+ people from discriminatory pat searches by staff, including rules meant to ensure trans women can be searched by female officers and regulations to prevent invasive examinations of individuals’ genitals.

The memo further affects rules on how employees should respectfully communicate with LGBTQ+ people and requirements that sexual abuse investigations consider whether a perpetrator was motivated by a victim’s LGBTQ+ status.

“The proposed revisions to the Prea standards will lead to increased chaos and violence inside prisons and jails, placing staff and incarcerated people in greater danger,” said Linda McFarlane, executive director of Just Detention International, a human rights group, in a statement. “It will allow rapists to act with impunity. And it is already sowing confusion among prison leaders, who have worked for more than a decade to put in place commonsense rules to end prisoner rape … It’s sickening.”

McFarlane’s group has long trained correctional staff on Prea standards and has had certified auditors on staff. In an interview on Friday, she said the immediate impact was a loss of a critical oversight mechanism, and that she hoped institutions would continue to honor Prea.

Incarcerated trans people have long struggled with abuse, even with the standards in effect, she added: “They are already in grave danger. I’ve never met a trans person in detention who has not experienced sexual abuse or harassment while incarcerated.”

The memo comes even after Trump’s executive order has been blocked in court. Earlier this year, some trans women imprisoned by the Bureau of Prisons were moved from women’s facilities into men’s prisons, but the courts later ordered they be transferred back. The rulings have protected individual plaintiffs, but the majority of trans people in federal custody remain housed in facilities that do not match their gender identity.

Spokespeople for the White House and Bureau of Prisons declined to comment.

Kara Janssen, an attorney who has represented trans women in Bureau of Prisons custody in litigation this year, condemned the memo. “This is putting not only our clients in an incredibly dangerous situation, it’s putting all these facilities in an almost impossible position, with the federal government telling them not to comply with their own laws,” she said. “It’s saying you don’t have to be afraid to violate the law … and you can do these searches as disrespectfully as possible.”

Regardless of any changes to Prea, constitutional protections against cruel and unusual punishment remained in effect, Janssen added: “When people are assaulted as a result of these changes, there is liability for these facilities. That is not going away.”

Shana Knizhnik, senior staff attorney with the American Civil Liberties Union’s LGBTQ & HIV project, noted the memo would create challenges for Prea monitors, with at least one auditor warning in a statement to NPR the memo would make their work “more confusing and more difficult”.

Knizhnik emphasized that Prea remained the law and institutions were required to follow it, but she was concerned about “the signal this sends to officials in charge of maintaining folks’ safety in custody”. She added: “This gives more license to individuals to target trans, intersex and other LGBTQ+ folks in carceral settings and ignore their obligations under the law.”

Knizhnik, who has also represented incarcerated trans people challenging BOP policies, continued: “It’s so important for folks to know that even though the government is denying their existence and trying to put them in harm’s way, there are folks on the outside who care and affirm and want to protect them.”