Last week, the Department of Justice filed a statement of interest in support of Ashley Diamond’s lawsuit against the Georgia Department of Corrections. Diamond, a Black trans woman and civil rights activist who is incarcerated, has endured repeated sexual assaults and sexual harassment after being placed in a men’s facility.
She alleges two Eighth Amendment violations. First, under Farmer v. Brennan, prison officials must protect people from sexual violence through the assessment of individualized risk and must act on that by that by taking reasonable steps for safety. The Georgia Department of Corrections violates that obligation by categorically refusing to assign trans people to housing that aligns with their gender identity despite individualized risk assessments that doing so is necessary to mitigate a substantial risk of serious harm. Second, under Estelle v. Gamble, incarcerated people must receive “adequate medical care,” which includes the treatment of gender dysphoria. Thus, the Georgia Department of Corrections violates the Eighth Amendment by failing to provide individualized medical care for gender dysphoria.
The Department of Justice, under Obama, filed a statement of interest in Diamond’s earlier Eighth Amendment litigation against the Georgia Department of Corrections, which challenged the “freeze-frame policy” that limited incarcerated people to receiving only the same level of care that they had received outside of prison.
Last week’s statement of interest comes after several other important moves on the rights of trans people and LGBTQ+ people more broadly. The Department of Housing and Urban Development rescinded a rule proposed under the Trump Administration that would have allowed federally funded shelters to refuse to serve trans people and would have allowed them to disregard gender identity in housing assignments. The Department of Justice and Department of Education withdrew support for a lawsuit, championed by the Trump Administration, that challenged Connecticut guidelines that allowed students to compete in sports in accordance with their gender identity. (That lawsuit was dismissed last week.) This week, the Pentagon’s reversal of policies that effectively banned trans people from serving in the military goes into effect.
According to Lambda Legal, nearly one in six trans people—and one in two Black trans people—has been incarcerated. The Sylvia Rivera Law Project explains that, “over-policing and profiling of low-income people and of trans and gender-nonconforming people intersect, producing a far higher risk than average of imprisonment, police harassment and violence for low-income trans people.”
Trump’s Bureau of Prisons rescinded Obama-era rules that allowed trans people to use facilities that aligned with their gender identity and instead determined that the federal prisons would use “biological sex.” This policy remains, as of now, unchanged.
