In 2014, trans Maryland inmate Sandy Brown was transferred to the Patuxent Institution—a maximum-security prison—for a mental health assessment. Upon discovering that Brown identified as a woman and had both breasts and male genitalia, correction officers decided to place her in solitary confinement. The prison staff decided that Brown posed “a possible threat to the security of the institution”—simply because she was trans. It then held her in solitary confinement for no particular reason, long after her assessment was complete. During that time, officers watched her in the shower, told her she would never be a woman, and called her “disgusting.” Officers also came to her cell to harass her, calling her a “fag” and encouraging her to kill herself.
Brown sued Patuxent Institution for mistreating her—and won a massive victory for trans inmates across the country. In an emphatic ruling, Judge Denise Oakes Shaffer affirmed the rights of trans inmates under a federal law called the Prison Rape Elimination Act, or PREA. Her ruling gave Brown only a modest award of $5,000. But it also put prisons across the country on notice that trans inmates don’t lose their rights because of their identity.
The PREA, passed unanimously in 2003, initially only required the government to study sexual violence in prison. But it also tasked the Department of Justice with implementing policies to respond to those findings to reduce prison sexual abuse. In 2012, the DOJ issued regulations to implement the PREA—and included protections for trans inmates. Under the PREA, prisons that receive federal funds must craft explicit policies for the humane treatment of trans inmates. They must also train guards to comply with these guidelines and adopt “a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment.”
When Patuxent received Brown, it complied with none of these rules. That, Shaffer ruled, is unacceptable—and, she implied, a rather startling dereliction of duty under the law. Shaffer also ruled that the officers’ harassment of Brown (including their habit of gathering together to gawk at her in the shower) clearly amounted to sexual abuse. In addition to the $5,000 award to Brown—the first individual compensation ever awarded under the PREA—Shaffer ordered Patuxent to comply fully with federal law.
Patuxent listened. So did Maryland. Shortly after the ruling, the Maryland Department of Public Safety and Correctional Services issued new rules fully compliant with the PREA (and Shaffer’s decision). Brown’s attorney, Rebecca Earlbeck, has declared that the decision “creates a framework for enforcing the national standards” that govern trans incarceration.
Earlbeck is right, of course, but the real power of the ruling is more complex. The PREA doesn’t create a private cause of action—that is, the ability of a prisoner to sue under the law for damages in state or federal court. So how did Shaffer award Brown $5,000? Shaffer, an administrative law judge, noted that the law did confer a “procedural benefit” to inmates—though the precise nature of such benefits isn’t defined. Shaffer held that, in the absence of an explicit statutory definition, monetary damages (the typical award in a civil suit) would fit the bill. Presuming more courts adopt her logic, the PREA could become a mechanism through which trans inmates essentially sue prisons for violating their rights under federal law. That’s an alarming prospect for correctional facilities, one that might encourage them to comply with the federal standards for trans prisoners.
For years, trans rights advocates have attempted to use the Eighth Amendment’s bar on “cruel and unusual punishments” to protect trans prisoners, to mixed success. The liberal 1st Circuit held in 2014 that denying a trans inmate sex reassignment surgery is not “cruel and unusual”—though since then California has agreed to provide the surgery to at least one trans inmate, following a lawsuit. As America’s evolving standards of decency shift toward trans inclusivity, the Eighth Amendment may be interpreted to require more tolerant treatment of trans prisoners. But until then, the PREA is probably trans prisoners’ best bet as they seek to secure their human rights in court.