Achieving LGBT Equality Through Litigation, Legislation, Policy, and Public Education

Views & Analysis

October 3, 2013

Forthcoming Regulations Will Mean Increased Protections for Transgender Detainees

Prison_Pic1As Congress considers overhauling and repairing our broken immigration system, NCLR has been committed to identifying areas where LGBT immigrants are especially vulnerable and working to ensure those issues are addressed. Detention facilities and standards for transgender detainees is one such area of heightened vulnerability.

Immigrants in the U.S. are detained in detention facilities for a number of reasons, including non-punitive reasons like while they are seeking asylum or refugee status. However, these facilities are ill-equipped to serve LGBT detainees, and that is especially true for transgender detainees. Transgender detainees face a myriad of obstacles in our immigration system. Reports show that transgender detainees are more likely to face sexual assault and abuse. Also, an overwhelming number of transgender detainees report being forced to be housed in facilities that are inconsistent with their gender identity or forced into involuntary isolation.

While the Department of Homeland Security (DHS) has tried to address these issues with guidance and suggested internal policies, these efforts have not gone far enough to address the pervasive safety, privacy, and discrimination concerns that plague transgender detainees in detention centers.

Fortunately, forthcoming DHS regulations for Immigration and Customs Enforcement (ICE) detention centers will soon provide increased protections for  transgender detainees. These new regulations, authorized under Prison Rape Elimination Act (PREA), will replace the non-legally binding internal polices and create federal standards for detention centers found in other federal confinement facilities. While we do not know exactly what these regulations will say, it is predicted that transgender detainees will gain the right to be housed in facilities consistent with their gender identity. Moreover, the new regulations are expected to require regular audits to ensure compliance, disciplinary and prosecutorial action for violations, and education for staff and contractors. So for the first time transgender detainees will have what they need to combat this abuse and discrimination – federal protections against such abuse and a system in place to ensure accountability for violating their rights.

These soon-to-be-released regulations, while necessary and significant, will only address a part of the systemic problems LGBT detainees and asylum-seekers face in our immigration system. Asylum-seekers still contend with an arbitrary and unrealistic one-year filing deadline. Those who are forced into detention centers face facility overcrowding issues and the lack of safe and adequate housing. And too often, LGBT detainees are automatically forced into solitary confinement based solely on their gender identity or sexual orientation. This is why NCLR continues to support and work to develop strong legislation to repair our broken immigration system to address these issues. Additionally, NCLR is committed to working with agencies and community members to advocate for alternative forms of detention, such as electronic monitoring and community placement especially for vulnerable detainees such as LGBT individuals.

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