The transgender/prison dilemma

August 12, 2021 • 9:15 am

I find that writing about transgender issues is difficult, for I want to both adhere to liberal tenets that respect people’s identities ensure moral and legal equality as far as possible, yet also ensure a kind of fairness that comes from realizing that while, for gender labels, a “transwoman is a woman and a transman is a man”, there are a couple of exceptions because transitioning involves modifying one’s biological (natal) sex. My solution has been pointing out a few areas in which inequality of treatment of trans- verus cis-people is useful in the interests of fairness (some sports participation, prison occupancy, rape counseling, halfway houses, and the like), but to hew to equality in all other areas (pronoun use, bathroom occupancy, etc.)  But even carving out a few exceptions gets one called a “transphobe”. Well, I can live with the opprobrium so long as I think I’m right.

The latest flare-up in this matter involves the transfer of prisoners from men’s to women’s prisons, and vice versa, as outlined in the articles below from the Los Angeles Times (first piece) and the Associated Press. Click on the screenshots to read.

There’s also this article from WOLF (the Women’s Liberation Front), which is more tendentious and uses more anonymous sources. But it shouldn’t be ignored. I believe WOLF is one of those feminists organizations branded as TERF (trans-exclusionary radical feminists), which seems even more restrictive of trans “rights” than I am. But their claims might well be right.

The backstory: last September, California governor Gaven Newsom signed a bill allowing people to occupy prisons conforming to their gender identity (with the exception of any “management or security concerns” by the state). Gender identity is determined solely by asking prisoners to name theirs when they enter prison (some of these are sexual offenders), and are based solely on self-identification—not on anatomy, chromosomes, or other markers.  There are similar laws in Connecticut, Rhode Island, Massachusetts, and New York City.

One can envision problems with this, even if one used markers other than self-identification by gender. But going with the self-ID criterion alone, the possible problems for trans men who want to transfer to men’s prisons is that they are biological women, though they may have undergone hormone or surgical treatment (some prisons pay for that), and thus possible targets for harassment and rape. You can imagine the kind of flak such a prisoner would get given the rough nature of prison life. On the other hand, a trans woman who requests transfer to a women’s prison creates two kinds of problems. The first is that, if they still have the sexual equipment and urges of men, as well as the superior body strength of that sex, they could sexually assault cis female inmates. Or sexual congress could be unforced, with cis female inmates getting pregnant through voluntary sexual intercourse, creating the problem of pregnant prisoners which sex-segregation of prisons is meant to avoid.  (One can imagine that in both cases, someone of the opposite biological sex thrown into an institution of voluntary celibacy would create “issues.”) These issues should not arise, though, with those whose identity is not a ruse, and whose reasons for requesting transfer, is genuine.

The WOLF article, and their tweets below, reports that at least one California cis-woman inmate has gotten pregnant “after being housed with a male (i.e., trans-female) felon.” The implication is that this was rape, but it’s not at all clear what happened. What is clear is that the problem will increase. With the recent exponential rise in adolescent natal girls wanting to become trans-men, and laws (in my view misguided) that regard self-identification alone as an unchallengeable marker of both gender and sex (this is creating problems for sports as well), we have a recipe for trouble.

I thought the requests for transfer would be few, and the problem small, but the AP report says that there have been 261 requests for transfers since the law took effect on January 1 of this year. (1% of California’s prisoners, according to the AP, “identify as nonbinary, intersex, or transgender.”) Even without these transfers, the problem is acute, as they report a 2007 study that 59% of prison inmates in these gender categories experience sexual assault: a rate 13% higher than cis people.  It’s expected that, for example, if you identify as a woman in a man’s prison, and act or dress like one, you’re making yourself liable for assault by sexually deprived (and criminal) inmates. That is not the fault of the nonbinary or transgener prisoners, of course, but it’s a predictable problem that, like prison transfer, needs a solution.

Another issue, mentioned by the AP as a concern of prisoners and staff, is that prisoners may try to game the system. An untreated biological male may say he’s a transgender woman simply to get into a women’s prison where he might have access to women—and sex. Indeed, the LA Times article reports that one transgender woman incarcerated in a men’s prison knows of five biologically male inmates who have applied for transfer to women’s prisons “under false pretenses”.  Again, most of the reporting in these articles by inmates is hearsay, as names cannot be used.

Advocates of the California policy say the problems are few, but so far there have been few transfers. And those transfers that have occurred between prisons have attendant problems (not always—some prisoners report improved conditions after transfer), problems involving bad treatment of transsexual inmates. While it’s not fair for transsexual people to be treated differently in prison than on the outside, it’s understandable given the conditions of prison life.

As for the WOLF article; it’s summarized in part by the tweets below (indeed, the whole organization’s Twitter feed seems devoted to the California issue):

They add that women’s prisons have started informing inmates about abortion, adoption, and prenatal care, and making both condoms and the Plan B pill available to inmates.  I can’t confirm this from any other article. The article also makes the following claims, some of which are verifiable (but which I haven’t verified):

Women’s prisons across the state appear to be making final preparations such as these for a massive wave of transfers after nearly 300 requests were initiated following SB 132 going into effect in January of this year. So far, only about 20 of the transfers have been processed (and exactly zero transfer requests have been denied) — leaving hundreds of men, many of whom are sex offenders, awaiting entry into the women’s estate.

. . . The facilities are also increasing security measures in preparation for potentially hundreds of new dangerous and violent men living alongside the vulnerable female inmate population. Women’s prisons have traditionally been lower-security and afforded more privileges to inmates since incarcerated women are less violent than men and pose a lower risk to Correctional Officers (COs) and each other. CCWF’s prison yard, for example, had been home for over three decades to trees which provided shade from the desert sun and a home to local birds. Once the men started coming, the trees were cut down, as they were seen as a security risk. (CCWF denies this happened, despite the first-hand accounts from incarcerated women). The security level of individual male inmates is otherwise completely disregarded once they enter the women’s facility, as prisons opt instead to remove privileges from all inmates.

. . .The prison has been unable to prevent or stop sexual activity between male inmates housed with incarcerated women, though. Sources tell us there have been incidents of sexual assault, as well as illicit sexual activity between the male inmates and women, putting the women at risk of pregnancy and disease, including HIV, as well as increased risk of disciplinary actions that can affect chances of parole. Avoiding the negative consequences of sex between males and females is, of course, one reason why prisons are single-sex to begin with.

As more men arrive at the women’s facilities, the crisis will only worsen. In just six months since the enactment of SB 132, the number of incarcerated people self-identifying as trans or non-binary (thus becoming eligible to request a facility transfer) has increased from 1,088 to 1,237. The nearly 300 pending transfers are only the beginning of the invasion of women’s prisons by violent male inmates, including convicted murderers and rapists.

“You might as well declare the prison is co-ed and ship us off to Pelican Bay!” one devastated woman currently incarcerated in CCWF said.

As I said, there is no substantive documentation of the anecdotes or verbal assertions of inmates in California from WOLF, though, as in the penultimate paragraph, there are checkable statements.

The good news is that this is not an insoluble problem. One solution is to have special wings for transsexual prisoners segregated from other cis-sexual inmates. That, however, would violate the trans-activist claim that “trans women are women and trans men are men.”

Sadly, that isn’t always the way they’re treated in prison, and all the activism in the world can’t prevent rapes, sexual congress in supposedly single-sex prisons, or violence. What is clear is that there is a problem, that it will grow more serious, and that adhering to the mantra above will do nothing to solve it.

41 thoughts on “The transgender/prison dilemma

  1. I suspect that — if they are allowed to — large numbers of imprisoned (cis) men would self-ID into women’s prisons. They are just vastly more benign environments. Would you want to be locked up with the sort of people in men’s jails?

    In fact, how about a quick question to male commenters: if you were falsely convicted and sentenced to 2 years in jail, and were asked (effectively), would you like to serve that in a men’s prison or a women’s prison, would anyone not opt for the women’s prison?

    1. To quote from the book I mentioned below at #2 again:

      The little evidence that exists shows that at least some of the males who identify as women are very dangerous indeed. Of the 125 transgender prisoners known to be in English prisons in late 2017, sixty were transwomen who had committed sexual offences, a share far higher than in the general male prison population, let alone in the female one.

      So either transwomen are more likely than other males to be sexual predators, or – more probable in my view – gender self-identification provides sexual predators with a marvellous loophole. Whichever is true, allowing males to self-identify into women’s spaces makes women less safe. As for the danger to transwomen from using male spaces, raising this is a backhanded acknowledgement of the purpose of female spaces. Arguing that vulnerable males must be allowed to identify out of male spaces because males are so dangerous undermines any argument that males should be admitted to female spaces on demand.

    2. I would definitely opt for the women’s prison. I’d feel bad about lying, but my fear of being prison raped (by men, anyway) would surely outweigh that.

  2. I’ve just finished reading Helen Joyce’s excellent new book Trans: When Ideology Meets Reality which a WEIT reader drew my attention to in a below-the-line comment in the past week. In it, Joyce writes (pg 258):

    Ireland is a small country with relatively little crime. Around a thousand women receive prison sentences each year, almost all short ones for petty offences. At any moment, around 170 are behind bars, of whom between zero and three have committed sex crimes. Until 2019, not a single woman had ever been imprisoned for a sex crime against an adult. Since then, Irish prisons have experienced a sudden influx of ‘female’ sex offenders – according to official records. As you will have guessed, the perpetrators are in fact male. The first, whose name is not public, was convicted in July 2019 on ten counts of sexual assault, and one of cruelty to a child. This person has changed legal sex but undergone no surgical or hormonal transition – in other words, is a physiologically normal male. The sentence is being served in a women’s prison, where the prisoner is accompanied by two guards whenever in communal areas.

    She also quotes (pp 262-3) a woman who was “sacked from her job with a reproductive-rights campaign group for writing about her opposition to legalised prostitution and gender self-ID. None of the allies from her long history of feminist and environmental activism supported her […] Then, as one left-wing group after another adopted the self-ID cause, she watched those former allies campaign for male rapists and murderers to be allowed to transfer to women’s prisons on demand.”:

    I did not come to politics to work with people who gave this little of a fuck about women prisoners, who everybody knows have overwhelmingly been victims of child-abuse, domestic violence and commercial sex exploitation. […] These women have no political representation, cannot vote, cannot talk to the press. And the people who should be speaking up for them have abandoned them. If my two options are talk to the ADF, or talk to somebody on the Left who calls me a fascist KKK bleep bleep bleep and hopes I die in a fire, is it even a choice?

  3. The good news is that this is not an insoluble problem. One solution is to have special wings for transsexual prisoners segregated from other cis-sexual inmates. That, however, would violate the trans-activist claim that “trans women are women and trans men are men.”

    I think that’s a very good solution, because the claim “trans women are women and trans men are men” is, in my opinion, neither consistent, coherent, or true. You can watch the entire edifice come tumbling down simply by asking them to define “woman” and “man.” A basic, non-circular, non-sexist definition of either simply isn’t possible within the theory, despite the fact that both are absolutely critical to what is supposed to follow. At least, I’ve not seen one.

    It would I think be the equivalent of advocates of Evolution being unable to define “natural selection.” Not a minor detail.

    1. One to file under “you couldn’t make it up:

      A billboard poster bearing the Google definition of the word “woman” has been removed after it was accused of being part of a transphobic campaign. Kellie-Jay Keen-Minshull told the BBC she paid £700 to have “woman, wʊmən, noun, adult human female” put up. […] Dr Adrian Harrop, whose complaint led to the poster’s removal, said the billboard was a “symbol that makes transgender people feel unsafe”.

      1. Since that time, there have been t-shirts printed of that definition, and women who wear them are hassled for “transphobia. ”

        I think that all people should be treated civilly and not have their civil rights violated.

        And that includes women, who seem to be forgotten in the trans “debate.”

    2. It’s polite for people to address you as you present yourself, when this isn’t obviously farcical (you are not demanding to be called His Majesty at the shoe store) and doesn’t inconvenience them (e.g. you need to dress as a women to get waiters to address you as such, not expect some additional system).

      But prison is not polite society, you have lost many freedoms by committing a crime. You wear the orange jumpsuit they give you. I hear we no longer embroider your number onto it, but good luck correcting the how the guards pronounce your surname.

      I think it’s deeply shameful how much violence we accept as normal inside prisons, I am not an expert but it sounds routine to experience horrible things at the hands of other prisoners, at least in men’s prisons. Should we offer a special safer wing (as suggested) for some to opt out of the general mayhem? Maybe, but perhaps we should offer this to all prisoners. Maybe that would happen anyway — like Coel I suspect that, if offered, almost everyone would choose “prison lite”.

    3. You and I may think that it is ludicrous, but the claim trans women are women” is their mantra and I seriously don’t that they would find the proposed solution as unsatisfactory.

  4. I’ve been thinking about this question of “identity” lately. Personally, I don’t think I “identify” as anything in the way activists who use the term seem to mean it. To the extent that I consider my identity, it is a mix of things, the most significant of which, to me, have nothing to do with my race or sex or gender. It seems to me that putting on an identity is almost a political act, in that it seeks to establish the person at some point in the political spectrum. At the same time, to the extent that people try to impose identities on others, they seem to be trying to impose their political spectrum, and, typically, to the disadvantage of their target. I remain uncertain about the extent to which we should accept this, and what the implications are for corresponding accommodations.

  5. My first thought on reading this was that it’s more an indictment of the US prison system than a trans issue. Where a trans man or woman is housed is a much less pressing issue (but still with the voluntary sex issue to be solved) if our prisons prevented assaults and rapes of the prisoners, by the prisoners.

    These issues should not arise, though, with those whose identity is not a ruse, and whose reasons for requesting transfer, is genuine.

    I don’t see why that’s the case. A genuine sincere trans woman could still be a violent, assaulting, raping genuine sincere trans woman. Such a person is going to be very rare in the general population, yes, but if you’re talking about the subset of people “incarcerated felons”, maybe not. And even for non-violent felons, my understanding is that there can be sincere genuine transwomen who are attracted to cis women. So there’s no reason to assume zero babies even in the case of no prison violence.

    1. Good points, and I’ll add in another: the women prisoners. My understanding is that, when they’re actually asked, the overwhelming percentage do not want to be forced into close living quarters with transwomen. They’re not behaving like white women who don’t want to cohabit with black women; they’re behaving like women who don’t want to cohabit with men. Even without the fear of violence, there’s privacy, dignity, and avoiding the male gaze as they shower and put themselves in other vulnerable positions. A woman’s prison is a single-sex space for reasons.

      Bottom line, solving men’s problems by removing rights from women is not a good option.

      1. The whole notion of housing a sexual predator (of any sex or gender) with a roommate that fits their prey profile is just bonkers. Heck that crosses the line into cruel and unusual punishment for the roommate, I’d argue.

        This is again at least partially a US prison issue, not necessarily a trans issue: nobody who has raped a man should be locked in a cell every night with a potential male victim, and nobody who has raped a woman should be locked in a cell every night with a potential female victim. That goes for both cis and trans rapists, and cis and trans roommates.

        1. I agree. From what I’ve read, more men than women are estimated to be raped every year in the US when you count prison rape. It’s horrible, and almost nobody cares. It’d be nice if people worked on the general problem of stopping prison rape rather than the specific problem of stopping prison rape of women.

          1. Given that women can get pregnant and men can’t, it would be best to not place male prisoners where they can impregnate female prisoners.

            1. In the prison population, I would certainly believe it. In the regular population, if you include pedophiles, maybe.

              But neither was my point, which was that it is frankly idiotic and creating more crime and misery when a prison puts a rapist in a cell with the people they like to rape. This sort of idiocy really typifies why the US prison system needs to be rethought.

  6. Cis-male and trans-male are oxymorons. There is no such thing as a male uterus or male ovaries. Cis-man and trans-man are being used because the words woman and man can be used to refer to sex or gender. I feel it’s a mistake to accept the concept that you can change your sex (one can adopt a different gender). I see it as a delusion.

    1. I really don’t see the objection to the terms. Yes, the words male and female can refer to both sex and gender. In theory, this might be confusing, but in practice, when dealing with trans people, it is not confusing at all. Nobody should be going around thinking the term ‘trans man’ refers to some person who magically changed their ovaries into testes. It never does. No speaker uses the term that way and no listener should be stupid enough to interpret it that way. So it seems perfectly fine and non-confusing to me to use the words male and female for both sex and gender.

      1. I don’t agree. By using the terms “male” and “female” to refer to both sex (reproductive pathways) and gender (socially constructed ideals of masculine and feminine,) we end up with “some males have a uterus” and “some females produce sperm.” It’s not only confusing; it leaves us with no way to refer to a person’s sex.

        1. Precisely my point! I do not agree with the claim “trans-women are women” if women is used in the sense of female (that is referring to the sex of a person).

          1. Yup, “transwomen are transwomen” – they’re in a category of their own. I intend no disrespect by that; I’m very happy to treat them as women for all purposes that don’t conflict with the rights and safety of biological women. If anyone sees that stance as transphobic, hateful, or hurtful their grasp on reality seriously needs checking.

    2. For some reason, I find the term “cis-male” offensive. I wish people would respect my feelings, and stop using it. I am a male – period.

  7. Nobody with a penis should be in prison with biological females. If they genuinely wish they were women they should be delighted to have the necessary surgery if they have not had it previously. Otherwise they should be incarcerated in separate prisons away from both male inmates – for their own safety – and from female inmates – for the safety of these females.

  8. Since all the other trappings of gender are clamped down in prison I don’t see that there is a right to gender expression in prison, or a right to be housed with those who identify as you do. There is a right to be housed with those of the same sex, so the debate seems to boil down to the question as to whether “identifies as a female” is equivalent to female, which I am under the impression most people here deny and the people pushing for this have been at pains to establish. See “Sex Is Not a Social Construct”

  9. The doctrine of authorizing self-identification would bring up an interesting question, if we still had
    mental institutions. What should the state do about individuals who self-identify as Sherlock Homes, or Napoleon, or Jesus Christ?

  10. … the possible problems for trans men who want to transfer to men’s prisons is that they are biological women, …

    Have there been any cases of trans men asking to transfer? They’d have to be nuts. Or do they suddenly remember the reality and relevance of biological sex?

    1. Easy solution: FOUR kinds of prisions. No problem for USA, where more than half of the population lives in Jails… lol. No joke. …

      1. “The United States has the largest prison population in the world, and the highest per-capita incarceration rate. In 2018 in the US, there were 698 people incarcerated per 100,000; this includes the incarceration rate for adults or people tried as adults.”

        About 0.7% of the population. No joke.

  11. I wonder if people can be prosecuted for “false pretence” in the case of transgenderism. How? Doesn’t self-identification trump whatever opinion a judge might have? A “false” transwoman can always say, “Well, at the moment I sincerely believed and felt that I was a woman.”

    1. I don’t see how – it’s like the chance McMurphy took in One Flew Over the Cuckoo’s Nest to avoid hard jail time, but with no risk of lobotomy. (Or even castration, which might be the way of deterring those looking for an easy way out.)

  12. This is not a dilemma, I don’t think.
    It was an inevitable and easily predicted consequence of their actions.
    The woke people reject old knowledge and customs ( as well as the other two “olds”), so they have to relearn the lessons of the past by making all those mistakes again.

  13. I can see how this system gives huge incentives to game it by falsely claiming to be female, obviously a problem , but i don’t think blaming gender fluidity wokeness is the right idea : we should get rid of prisons, period. It is inhumane , cruel, counterproductive, and conflicts with the truth about “free will” anyway. There are some people that simply have to be kept locked away for safety reasons, obviously, but prison in it’s current form is not what we need for that. There are better , smarter , and much more humane , and ultimately cheaper* ways of dealing with rehabilitation and punishment.

    Bottom line is that prisons are cruel, medieval institutions that incentivizes not just gender cheating , but also racism, drug use , violence an further criminal careers , it’s absurd and stupid.

    *Probably requires a bigger initial (perhaps long before the crime happens to prevent the crime) investments, but will pay for itself in spades .

  14. The first, and perhaps only, consideration should be the safety of all of the prisoners. The objection to segregation of trans prisoners that you are denying them their right to identify as their preferred gender is meaningless in a context where you are deliberately denying them even the right to liberty. Separate wings is the right answer and should not be controversial.

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