Regulating Gender: Transgender People’s Experiences in the Criminal Justice System

In light of underemployment (Khobzi Rotondi et al., 2013; Badgett et al., 2007), unstable housing (Thornhill & Klein, 2010), social and familial rejection (Sevelius et al., 2014), and frequent mental health concerns (Xavier et al., 2013; Nuttbrock et al., 2014), trans people are being swept into the criminal justice system at an overrepresented rate – and the system is just not ready to accommodate them. Cisnormativity within the system not only erases the existence of trans people, but continues to control the manner in which they can express and live as their true identities. In its most basic form, cisnormativity – the oppression that trans people face – is the hegemonic and naturalized assumption that those assigned male at birth will grow up to be men and those assigned female at birth will become women (Bauer et al., 2009). This cisgender assumption reinforces the belief in two distinct and rigid gender categories, of male and female, thereby overlooking the very existence of the trans population (Serano, 2007). When the criminal justice system encounters a transgender person, they are often considered on an individual basis, rather than being understood as a legitimate identity group. As a result of the overall lack of knowledge of the population and outdated and policies and procedures, transgender identities are subject to strict regulation within the criminal justice system.

When a trans person engages with the criminal justice system, their identities are first regulated through the identification process. Whether victim or offender, the identification process proves difficult for trans individuals who are met with hostility and accusations of deception by police when their gender expression does not align with their sex designation on identity documents (Minter & Daley, 2003). Officers sometimes intentionally and maliciously misgender trans individuals in order to reinforce their past identities (Amnesty International, 2005) and frisks and searches may be used in order to determine or ‘verify’ gender – a practice routinely accompanied by transphobic verbal abuse (Minter & Daley, 2003; Amnesty International, 2005).

Similar experiences extend to the courtroom. The regulation of gender norms within the courts is not a new phenomenon, but rather, one that uniquely affects the transgender and gender non-conforming populations. As Balfour (2002) explains, lawyering strategies exemplify the legal system’s commitment to normative conceptions of femininity and masculinity, sexuality, race and class. Similar to the policing of cisgender women’s expressions of femininity, by playing on stereotypes of vulnerability and irrationality (Balfour, 2002) so, too, has trans people’s gender expressions been subject to regulation. For instances, trans people have even been advised by council to dress in clothes that would align with their assigned sex (Graham et al., 2014) and court officials often emphasize their past identities through the misgendering and use of legal names (Nadal et al., 2012). While reinforcing gender norms, for both cis and trans individuals, is an outdated and normalizing practice, the manner in which this affects trans people amounts to an erasure of their identities.

While one seemingly simple resolution is to change one’s legal name and sex designations, barriers often prevent such changes. Not only is there the burden associated with the time and cost of replacing all identity documents, but the social and emotional implications of changing ones identity influence this process. Moreover, subject to provincial or territorial policy, proof of sex-reassignment surgery may be required. Empirical evidence documents the large number of trans people yet to change their legal name and sex on identity documents, but wish to do so (Bauer, 2012), illustrating the vast numbers of people not yet accounted for by the institutions.

Identification and documentation is not the end of it, but rather, sex-divisive policies enforced by the correctional system generates additional harms. Due to Correctional System Canada’s use of sex designations, as opposed to gender identity, trans offenders are housed within institutions in accordance with their sex (Correctional Service Canada, 2015). While recently in 2015, Ontario and British Columbia have changed their policy to allow for housing based upon gender identity in provincial institutions, in practice this seldom occurs (Kirkup, 2016). This results in trans women being housed with cisgender men, and trans men with cisgender women – unless they have undergone genital surgery. However, there are again restraints to obtaining surgeries, if the individual even wishes to do so. Results from a US national study document that the majority of trans people have not undergone genital surgery, yet wish to do so (Grant et al., 2011). Indeed, transgender people – even if fully socially transitioned and have undergone some surgeries – are classified strictly by their genitalia.

Within the correctional setting, expressing one’s transgender identity proves difficult. To begin, policy often restricts one’s ability to medically transition – that is, transition one’s gender with the help of hormones or gender-affirming surgeries. Only if deemed medically essential, dependent on institutional considerations and a diagnosis of gender dysphoria by a professional in the field may individuals receive trans-related medical care in the form of hormone therapy or gender-affirming surgeries. Problematically, many individuals will not have medical documentation of their transition (Minter & Daley, 2003) and are therefore forced to wait to see a professional within the institution, if deemed medically essential. Further, Correctional Service Canada (2015) policy insists that the individual live one year as their felt gender, prior to incarceration, in order to even qualify for gender-affirming surgeries.

The reality is, most trans people won’t receive the appropriate transition-related medical care within correctional institutions. As we know, access to general medical care within correctional institutions is lacking and trans people within broader society experience discrimination and rejection by service providers (Xavier et al., 2013; Grant et al., 2011). Evidence suggest that similar experiences occur for the incarcerated trans population (Brown, 2014; Reisner et al., 2014) and this denial of medical care certainly has the potential to foster egregious emotional and physical implications, from the exacerbation of depression and suicidal tendencies so pervasive amongst the population (Reisner et al., 2009) to, in exceptional cases, performing surgeries on oneself (Brown, 2010; Sylvia Rivera Law Project, 2007).

Just as medical transitioning is strictly regulated, so is one’s ability to socially transition – that is, living in accordance with their gender identity in everyday life. As part of the deprivation of liberties that occurs when one enters a correctional institution, the ability to express one’s individuality, through clothing or access to certain goods available to the public, for instance, is limited. While trans women are routinely denied long hair, make-up products, and even female-gendered clothing within prison (Minter & Daley, 2003) – and in some cases, are even subject to extreme disciplinary actions for having such items (Sylvia Rivera Law Project, 2007) – these would be commonplace within a women’s facility. Indeed, because of the sex that transgender people were assigned at birth, their current identities remain overlooked and overturned by corrections.

From the criminal justice system’s lack of knowledge of the needs of trans population to the subsequent reliance on outdated policies and procedures, trans identities continue to be strictly regulated. To the system, trans people are no more than a burden, requiring additional care and accommodations that are not yet understood as essential. Moving forward, we must shift away from classifying individuals in accordance with their sex – or simply, genitalia. We must move toward recognizing the validity of gender identity in ensuring that transgender populations receive appropriate treatment within the system. Until then, trans people continue to be swept into a system that undermines their identities and dignities and that reinforces the trauma of past lived experience: the current system fosters these harms.

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