The US Department of Justice (DoJ) has taken a controversial step to dismantle federal protections designed to shield LGBTQ+ individuals from sexual abuse within prisons and jails. Human rights advocates have swiftly condemned the move as "reckless and dangerous," warning it will inevitably lead to a surge in assaults behind bars.
Immediate End to Oversight and Compliance
In a memo issued on Tuesday, the DoJ's Bureau of Justice Assistance declared that, "effective immediately," correctional facilities would no longer be held accountable for violating specific standards under the Prison Rape Elimination Act (PREA). These standards were crafted to protect queer and transgender people from harassment, abuse, and rape while incarcerated.
The directive, signed by Principal Deputy Director Tammie Gregg, also instructs federal inspectors to cease auditing prisons and jails for compliance with these LGBTQ+ safeguards. The department indicated it is now in the process of formally updating the PREA regulations to reflect this shift.
Alignment with Trump's 'Biological Truth' Order
The policy reversal is explicitly designed to align with one of former President Donald Trump's signature anti-transgender executive orders. Issued on his inauguration day, the "restoring biological truth" order mandates the exclusion of transgender women from women's housing in correctional facilities and halts the provision of gender-affirming healthcare to incarcerated trans people by the Federal Bureau of Prisons.
Gregg's memo was sent directly to PREA auditors, directing them to ignore LGBTQ+ protections in all future facility reviews. This move persists despite the fact that Trump's executive order has been blocked in federal court.
What Protections Are Being Stripped Away?
The targeted regulations are comprehensive and critical. They include:
- Mandates that transgender, intersex, and gender-nonconforming individuals be screened for their risk of victimisation during housing placements.
- Rules protecting LGBTQ+ people from discriminatory pat-down searches, including ensuring trans women can be searched by female officers and preventing invasive examinations of genitals.
- Guidelines on respectful communication by staff with LGBTQ+ inmates.
- Requirements that sexual abuse investigations consider whether the perpetrator was motivated by the victim's LGBTQ+ status.
Linda McFarlane, executive director of the human rights group Just Detention International, stated the revisions "will lead to increased chaos and violence inside prisons and jails" and "allow rapists to act with impunity." She emphasised the dire existing situation, noting, "I've never met a trans person in detention who has not experienced sexual abuse or harassment while incarcerated."
Legal Confusion and Continued Risks
Attorneys representing incarcerated transgender people have voiced outrage and concern. Kara Janssen, a lawyer who has litigated against the Bureau of Prisons this year, argued the memo puts facilities in an "impossible position," with the federal government telling them not to comply with federal law. She warned, however, that constitutional protections against cruel and unusual punishment remain, and facilities could still face liability for assaults.
Shana Knizhnik, a senior staff attorney with the American Civil Liberties Union's LGBTQ & HIV Project, highlighted the confusion the memo sows among PREA auditors and prison officials. "This gives more license to individuals to target trans, intersex and other LGBTQ+ folks in carceral settings and ignore their obligations under the law," she said.
The White House and the Federal Bureau of Prisons declined to comment on the policy change.
