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Picture uneven for local LGBT inmates behind bars

by Seth Hemmelgarn

An inmate who did not want their face shown sits in the<br>housing area used for transgender inmates at the San Francisco jail. Photo:<br>Jane Philomen Cleland
An inmate who did not want their face shown sits in the
housing area used for transgender inmates at the San Francisco jail. Photo:
Jane Philomen Cleland  

With San Francisco Sheriff Ross Mirkarimi's recent announcement that he plans to stop classifying transgender inmates who have not had surgery according to their birth sex, the city is ahead of other local agencies.

The move by Mirkarimi, which he and his office have been working with transgender advocates on for over a year, would mean that trans women would no longer be housed with men.

The same would be true for transgender men, but the jail population generally sees more trans women inmates.

Other local agencies aren't yet considering such plans, citing concerns for inmate safety.

Many have called attention to problems faced by LGBT inmates more generally, including assaults by other inmates and even staff. But finding data that reflects that is difficult.

Like other agencies, the San Francisco Sheriff's Department doesn't break down inmate grievance data by sexual orientation or gender identity.

Even if such information was compiled, some say it wouldn't be that useful, because inmates are afraid to report incidents, and their stories won't show up in the data.

In an interview last week, Mirkarimi said his office's changes involving transgender people "will elevate the voice of the transgender population" and bring "more awareness and more participation."

Trans inmates who have had surgery are already housed based on their preferred gender identity, the sheriff's department said. Trans inmates also have access to hormones.

San Francisco Sheriff Ross Mirkarimi, shown here with department leaders, is finalizing a new policy that would see trans women who have not had surgery housed with female inmates. Photo: Jane Philomen Cleland

Mirkarimi said people in custody "are instructed on how to file a grievance," as is required by law.

The most common problems reflected in the agency's data from this year, reviewed by the Bay Area Reporter, are related to commissary and medical care. Grievances about staff were among the least frequent.

Asked about the possibility of inmates being afraid to report problems involving staff because of fear of retaliation, Mirkarimi said that's why his office has a Prisoner Legal Services unit, which is overseen by a civilian and provides "a check" to the system.

If there are grievances about staff, "I really want to know about that," he said.

But Mirkarimi expressed confidence that the lack of complaints about people who work in his agency is an accurate gauge of how they handle their jobs.

The "vast" majority of staff in the jails are "outstanding, committed, and dedicated" he said, and the "absence of grievances reflects that."

When there are problems, though, the consequences can be serious.

"The penalty for staff who ignore or minimize a grievance or complaint are also quite severe," Mirkarimi said, adding, "People have lost their jobs over this."

Like many other agencies, the San Francisco Sheriff's Department doesn't track whether complaints are coming from LGBTs.

Mirkarimi said it could be worth adding information about how people identify to his agency's grievance data, but officials have to be careful "not to violate [inmates'] civil rights by forcing any self-identification," since they may not want to share that information.

Flor Bermudez, director of the Detention Project, which works to end the abuse of transgender and gender non-conforming people in prison and similar institutions, also noted that in order for data to be broken down by sexual orientation and gender identity, people would need to self-identify, and there first needs to be "a cultural shift" for that to be safe. The Detention Project is part of the Oakland-based Transgender Law Center.

"Policy changes need to come from above," Bermudez, a lesbian ciswoman, said, and officials "need to give the message that transgender people are going to be respected in their gender identity." Until "that happens, and there is adequate training of correctional staff," and other changes are made, "it is not safe to either self-identify or complain."

Jennifer Orthwein, the Detention Project's senior counsel, said in an email, "We have heard from numerous trans women over the years" who have had problems with the San Francisco Sheriff's Department, "generally alleging" they have been misgendered, faced verbal and physical harassment, and other complaints. Orthwein couldn't provide more specific details on the allegations.

In 2007 and 2008, transgender women filed lawsuits against sheriff's Deputy Scott Neu and others, claiming Neu had sexually assaulted them while they were in custody. The city eventually settled those cases.

More recently, Neu was one of the deputies who allegedly forced inmates to fight each other and gambled on the bouts. The FBI and others are investigating the allegations. Mirkarimi's office has been working to terminate Neu, who the B.A.R. hasn't been able to reach for comment.

Some say that when inmates have problems, they don't go to authorities.

Bermudez said people may take complaints "to advocates and friends" rather than institutions "because they're afraid of retaliation."


'A much-needed change'

The changes that have been proposed in San Francisco are not on the horizon in Alameda County, where transgender inmates are housed separately from other inmates.

Tiffany Woods works with trans people at the Tri-City Health Center. Photo: Courtesy Tiffany Woods

Tiffany Woods, coordinator of the TransVision program at the Fremont-based Tri-City Health Center, called Mirkarimi's efforts "a much-needed change."

Woods said people's transgender identities "should be respected," and inmates shouldn't be classified based on their genitalia.

"In most cases, if you're on hormones, your penis isn't working anyway," Woods, who's transgender, said.

From what she's heard, Woods, who frequently works with people who've been incarcerated, said she doesn't think life for transgender inmates is "as bad as it used to be. ... I don't hear a lot of bad stories at all."

"They're away from the main population, so they're not getting all the violence," she said.

Orthwein, who identifies as genderqueer, thinks it can be a problem when LGBT inmates are placed in separate housing.

"When inmates are housed together because of their sexual orientation or gender identity, they tend to be susceptible to discrimination and assault, because essentially they are being outed and can be easily targeted by other inmates and staff," and they lack access to programming and appropriate recreation, she said.

Housing people separately based on their sexual orientation or gender identity without a court order violates the standards of the national Prison Rape Elimination Act, as does using someone's birth sex as the only means of determining where someone should be kept.

Alameda County Sheriff's office spokesman Sergeant J.D. Nelson

Sergeant J.D. Nelson, a spokesman for the Alameda County Sheriff's office, seemed unfamiliar with the part of PREA related to housing people based on their sexual orientation or gender identity.

People are housed based on their birth sex, so that transgender women who have not had surgery are placed in housing with men, Nelson said. However, he said, they're placed in protective custody "for their safety."

A concern in San Francisco has been that transgender inmates lack access to programs when they're housed separately. In Alameda County, Nelson said, people in protective custody have the same access to programs as everyone else, but keeping them separate is for their own good.

"Historically," he said, when people "find out that somebody is gay or transgender, aggressive inmates will utilize that and take advantage of that," assuming that the LGBT inmates are "weaker."

That problem "doesn't happen very often," Nelson said, because staff work "to make sure that doesn't happen."

"We don't want people to come in here and get raped. That's the bottom line," he said.

Asked if he could see Alameda County changing its classification policy, as San Francisco is, Nelson said, "Not at this particular time," but "anything can change."

Using himself as a hypothetical example, he said there's a "risk" to not housing people based on their birth sex.

"I get arrested, and I say I identify as a female, so now I go in the female housing," Nelson said. "You see there can be some inherent problems with that?"

He said he understands Mirkarimi's stance, "but our reality is so many people try to game the system, you run a tremendous risk of something bad happening" if trans women who have not had surgery are placed in women's housing.

Gay and lesbian inmates aren't necessarily put into protective custody, Nelson said.

"There are gay men in the general housing population," Nelson said, and there are lesbians housed with other women.

In an email exchange, Nelson said sheriff's staff are trained under PREA standards, and "We do our best to ensure that our inmates are not harmed while in custody, but "in minimum housing units there is one deputy for 300-plus inmates."

Woods, the trans advocate, said she's heard that transgender inmates in Alameda County are still "regularly" misgendered, with guards purposefully using the wrong pronouns.

Nelson said, "If you are housed with other males, there can be mistakes made. It's been my experience that deputies are pretty respectful and try to use proper pronouns or just not use them at all." He didn't know whether transgender people in custody have access to hormones.

Last year, according to information provided by the Alameda County Sheriff's office, inmates filed 30 reports complaining of sexual assault or harassment. Several of them were determined to be unfounded. The data weren't broken down by sexual orientation or gender identity. Nelson indicated he didn't see any value in doing that.


Santa Clara County

Policies in Santa Clara County, about an hour south of San Francisco, are similar to those in the East Bay.

Sergeant James Jensen, a spokesman for the Santa Clara County Sheriff's office, said medical personnel determine whether someone is male or female, but he indicated it's likely transgender women who have not had surgery would still be housed with men.

Jensen said, though, that his agency has just started looking at "changing our policies and procedures," so that trans women may be housed with ciswomen.

A B.A.R. review of Santa Clara County Sheriff's office data show that out of just over 19,000 records from January 2010 through April 2015, about 75 were related to harassment, and four pertained to rape, but they can't be broken down by sexual orientation or gender identity, and it's not clear whether the harassment involved perceptions about either.

Jensen said more information on what happened in those incidents isn't readily available, since the grievances aren't stored digitally, but citing another agency staffer, he said LGBT-related complaints are rare.

He supported adding a column to the data to indicate whether someone's LGBT.

"I definitely think that would help all of us in better serving our community," he said.

When inmates enter custody, they can get a book that includes instructions on reporting incidents, and they're advised of PREA.

LGBTs are placed into protective custody, as are people who fear for their safety, and others.

"Ninety-nine percent of the time, if they tell us they're LGBT, we would place them in protective custody for their own safety," Jensen said, "even if they don't request it."

When someone's in protective custody, a deputy walks with them any time they're in the general population. Protective custody isn't the same as solitary confinement, and it doesn't limit access to programs, Jensen said. He didn't know when or how the practice of keeping them in protective custody came about, "but we are charged with their safety while they're in our custody," and the agency's concerned about liability, Jensen said.

One transgender inmate in California who's drawn attention recently is Michelle-Lael Norsworthy, 51, who began identifying as a woman in the 1990s. The state has been fighting a judge's order to give Norsworthy, who's been convicted of second-degree murder, sex reassignment surgery.

Norsworthy's case is typical, Orthwein said.

"Right now in California there is a blanket policy against providing any kind of surgical treatment for gender dysphoria," she said.

The Los Angeles Times has reported that in court documents, Attorney General Kamala Harris' office has claimed, "evidence showed that there was no medical or psychological need for immediate sex-reassignment surgery."

The B.A.R. reached out to numerous nonprofits, government agencies, and individuals â€" including Norsworthy â€" in an attempt to find current or former inmates who are LGBT to talk to for this story. Most didn't provide any.

Deyna Loveless, 49, a transgender woman who lives in San Jose, spent years in and out of custody but is now free. Loveless struggled to adjust at first â€" "I know how to live on the street. I didn't know how to live in there," she said â€" but she "never really had any problems" while incarcerated.


State approach

Santa Clara and Alameda counties' policies are similar to the guidelines of California's Department of Corrections and Rehabilitation, which oversees the state's prisons.

Terry Thornton, a spokeswoman for the agency, said inmates are housed based on their birth sex "regardless of how a person self-identifies."

That's "for safety and security reasons," Thornton said. "You would not want to put a person that has female genitalia in a men's institution." She said of 112,000 inmates, less than 300 are transgender people.

"If a person is receiving hormones before they come to prison that is continued after they come to prison," she said.

There's "only one male-to-female post-op transgender inmate in the entire state prison system," Thornton said. The woman started in a men's facility but since she's had transition surgery, she lives in a female institution.

As with local agencies, the CDCR doesn't have data categorized by sexual orientation or gender identity.

"We do know that LGBT inmates can also be harassed or victimized," Thornton said, but she doesn't have any sense how often that is.

"We don't break it down by the way you're looking for it," Thornton said.

Explaining why that is, Thornton said there are "lots of reasons."

"We already do a lot of things to protect vulnerable inmates, whether they're LGBT" or for other reasons, she said. "There are a lot of reasons inmates can be victimized ... so we do our best to protect all inmates."

Asked whether analyzing the data by LGBT status might show trends, Thornton said, "It might, but then would you do it for child molesters, too? Would you do it for gang dropouts? You'd have to do it for everybody."

She said she wasn't "trying to minimize" what LGBT people go through, but "LGBT inmates are not the only ones who can be preyed upon. We have an obligation to keep all inmates safe."


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