A lawsuit filed against the California Department of Corrections and Rehabilitation for its failure to protect a transgender prisoner from sexual assault could alter policies and procedures pertaining to housing and treatment of incarcerated transgender individuals.

The trial is scheduled to begin July 2 in San Francisco Superior Court. Gregory Walston, the attorney for Alexis Giraldo, initially sued corrections personnel for negligence. The suit also seeks punitive damages for the intentional infliction of emotional distress, and cruel and unusual punishment while Giraldo has been in Folsom Prison.

Judge Peter Busch dismissed negligence claims against all of the defendants and claims for punitive damages against some of the defendants on June 21. Busch ruled that the case could go to trial regarding damages for intentional infliction of emotional distress against other corrections officials and claims of violation of the California Constitution.

Giraldo, 30, a Puerto Rican transgender woman whose legal given name is Edwin, alleges in the lawsuit that two inmates with whom she shared cells between January and March 2006 repeatedly raped her. According to the lawsuit, which was filed earlier this year, Giraldo informed multiple prison officials during February and March 2006 that she was being raped daily, beaten, and held "hostage" by her second cellmate. Giraldo, according to the lawsuit, did not report the alleged sexual assaults perpetrated by her first cellmate.

Giraldo's verbal and written requests to prison medical and corrections officers that she be removed from her cell and the reported rapes were met with either a response for her "to be tough and strong" or no response, according to the suit. That changed on March 12, 2006, when she was allegedly physically attacked with a box-cutter by her cellmate and taken to the medical unit. According to the lawsuit, Giraldo informed the medical personnel about the rape, but only the cuts on Giraldo's back were documented. According to the lawsuit, Giraldo didn't receive an examination for rape, but there is one recorded report of Giraldo's allegations noted by prison officials.

"They didn't use the rape kit, not until two weeks later did they take her to the [University of California at Davis] to do the rape kit," said Alex Lee, director of the Transgender, Gender Variant, and Intersexed Justice Project, who assisted with preserving evidence in Giraldo's case. "At that point ... the doctor said this is pointless."

Giraldo was placed in isolation for two weeks after the alleged rape while her accused attacker was reportedly released into the general population, according to the lawsuit. In March 2006, Giraldo, due to mental and emotional problems, was moved to the Correctional Clinical Case Management Systems at the California Medical Facility in Vacaville, her original housing assignment before she was sent to Folsom Prison. CCCMS at CMF is one of the three prisons that house a concentrated population of transgender inmates.

"She's not dealing with this very well, and I don't blame her," said Walston, an attorney with the Walston Legal Group, who took Giraldo's case pro bono. "She's experienced significant enough emotional distress."

Walston told the Bay Area Reporter that in the complaint, Giraldo described "feelings of disgust with herself, feeling dirty with herself, which is common for people who have gone through this ordeal."

In a telephone interview last week that was arranged by Walston and took place at his office, Giraldo told the B.A.R . that she continues to experience nightmares "at night I feel him touching me."

Giraldo was a graphic design student in college, according to Lee, at the time she was sent to prison.

"Her experience is extremely common to our community," said Lee, who added that transgender prisoners often face "extraordinary amounts of danger while being in prison" that "far outweigh the gravity of any law that they broke."

Giraldo was charged with petty theft, which led to a parole violation stemming from an earlier vehicular manslaughter conviction. According to Giraldo, when she was in her late teens she "fell asleep at the wheel" while driving, which resulted in an accident that killed a family member.

Walston said that Giraldo never went to jail for the incident, nor did she have any other problems with the law.

The parole violation in late 2005 resulted in a two and a half year sentence in prison.

Rape, protection, and justice

The Prison Rape Elimination Act of 2003 and the Sexual Abuse in Detention Elimination Act of 2005 were enacted in order to reduce incidents of sexual assault in prisons. In 2005 the CDCR granted $400,000 to the University of California at Irvine's Center for Evidence-Based Corrections to conduct an investigation into incidents of prisoner sexual assaults and rape, with a special interest in incidents that occurred to transgender inmates.

The report, released earlier this month, found that 59 percent of the 39 transgender prisoners interviewed reported being sexually assaulted while in California prisons. This was in comparison to the 4 percent of 322 non-transgender inmates interviewed in six California prisons that reported being sexually assaulted, according to Valerie Jenness, professor of criminology, law and society and lead author of the report. The ratio of sexual assault for transgender inmates was 13 to 1. The report also revealed that transgender prisoners "often described multiple events of sexual assault" and that the incidents "occurred fairly recently."

Jenness told the B.A.R. that much like in the outside world, sexual assault in prison tended to happen between prisoners who knew or were familiar with each other and that in particular with transgender inmates, prison officers weren't aware of them. According to the report, transgender prisoners reported that prison officers "were not aware of sexual assault/misconduct," while general prisoners reported that officers were aware of sexual assaults "the majority of the time and medical attention was provided when it was needed."

The findings of the report go against what Teda Boyll, a retired correctional lieutenant and training manager, experienced during her 26 years working for the CDCR. Walston recruited Boyll, who is a certified expert on the CDCR, to explain the prison system and conditions to the court.

"I don't think it happens as often as people believe it does," said Boyll, 57, who worked at Pelican Bay, the most maximum-security prison in California. She admitted that LGBT inmates who have "characteristics of a femininity ... are preyed upon."

Giraldo described the situation to the B.A.R . as "it was like taking a fresh piece of meat to a lion's cage."

Boyll told the B.A.R. that there were policies and procedures in place to house transgender prisoners in one of the three facilities that had a large number of gay and transgender inmates, but often they were crowded and transgender prisoners would be placed where there was an available bed. She believed that "the departmental procedures are adequate if they are followed."

Repeated attempts to contact state corrections officials were not returned by press time.

Walston, Jenness, and prisoner advocates disagree with Boyll that the current procedures and policies are adequate.

"The Department of Corrections has been utterly inadequate in protecting Ms. Giraldo," said Walston. "They've completely failed to even follow the policies they have and we think those policies are inadequate."

Walston believes that there are hundreds of other inmates who are in a similar situation as Giraldo.

"They are housed with thousands and thousands of male inmates who look upon them as property and treat them that way," said Walston.

Walston hopes the judge will make a decision by July 13, when Giraldo is scheduled to be paroled.

"They failed in their obligation in keeping her safe," said Alex Cleghorn, staff attorney with the American Civil Liberties Union of Northern California's LGBT and AIDS Project. "I hope that people will be as outraged as I am."