Shifting policy on prison placement of transgender people sparks scrutiny

New Jersey prisons were held up as a role model nearly two years ago when corrections officials agreed to house transgender people by their gender identity instead of genitalia, a protection recognizing the harassment and assaults they often endure behind bars.

But last fall, the Department of Corrections reversed course after a summer of scandalous headlines about a transgender woman who impregnated two cisgender women at the female state prison.

Under a policy in place since Oct. 11, officials now consider six factors besides gender identity to determine housing placement for transgender people — their safety in their current and potential facility; their vulnerability to sexual victimization in both; their criminal or institutional disciplinary history; the safety of others in the potential facility; medical and mental health recommendations; and “reproductive considerations.”

The tweaked policy means that very few of the transgender people incarcerated in New Jersey — 10 of 75 — live in facilities that align with their gender identity, according to department data.

Forty-one transgender women are in six men’s prisons, while 24 transgender men live at Edna Mahan Correctional Facility for Women. Five people who identify as nonbinary are at Edna Mahan.

Those trends aren’t necessarily troubling, some advocates said.

Bonnie Kerness serves as coordinator of the American Friends Service Committee’s prison watch program and also sits on Edna Mahan’s board of trustees.

The initial policy change ­— court-ordered to settle a transgender woman’s lawsuit — prompted a “major uptick” in prisoners’ requests to transfer to Edna Mahan, Kerness said. Some women at Edna Mahan were afraid and uncomfortable about getting transgender neighbors, she added.

“So many of these women are in because they were abused and because they harmed their abusers, so there’s a delicate balance that needs to be achieved,” Kerness said. “Many of us felt that you have to have some kind of process more comprehensive than self-identification.”

Christian Fuscarino, executive director of Garden State Equality, was active in the effort to place prisoners by their gender identity.

He told the New Jersey Monitor he’s relieved gender identity remains a prevailing factor in prison placement and happy officials seem to consider the transgender person’s perspective and well-being when deciding housing.

“We’re going to continue to advocate for the fair treatment of transgender people in custody and see how things evolve,” Fuscarino said.

Other advocates are concerned.

Mike Wessler of the Prison Policy Initiative said transgender people are at a heightened risk of incarceration for reasons largely related to poverty and law enforcement harassment. And while prisons are inherently traumatizing places for anyone, that’s especially true for transgender people who face higher risks of physical and sexual violence, he added.

“This policy change leaves far too much discretion in the hands of prison officials, particularly considering the high rates at which trans people are harassed by prison staff,” Wessler said. “Trans people should be housed in the facilities that most closely align with their gender identity and expression, treated in all matters like others in that facility, and not subjected to additional scrutiny or punishment for disciplinary infractions.”

Jeanne LoCicero is legal director of the American Civil Liberties Union of New Jersey, which represented the transgender woman whose lawsuit prompted the 2021 settlement and initial policy change.

“We’re monitoring the policy implementation,” she said, but declined to comment further.

Under the newer policy, transgender people who don’t get the housing assignment they want have 14 business days to appeal and housing assignments are reassessed at least twice a year. They can also be placed in small units known as vulnerable housing units intended for people with risk factors like physical size, appearance, occupation, and notoriety of offense.