The U.S. Department of Justice will “immediately” stop enforcing a swathe of federal regulations protecting trans and intersex prisoners from rape and sexual assault, according to leaked documents.
In a memo obtained by the non-profit news outlet Prism, DoJ official Tammie M. Gregg told prison auditors across the nation to “immediately pause” all “compliance determinations” for key safety rules concerning LGBTQI+ inmates, and advise prisons to “disregard” them.
Those rules include requiring trans and intersex prisoners to be allowed separate showers, banning body searches purely for the purpose of finding out what genitals they have, and requiring prison staff to consider their safety when assigning them to male or female wings.
Some of the suspended clauses apply to all LGBT+ people, not just trans and intersex ones, and many apply to juvenile facilities as well as halfway houses, rehab centers, and mental health facilities.
Gregg said these changes were intended as a stopgap solution while the Trump administration edits the regulations to comply with Donald Trump’s January executive order declaring that trans people should always and only be treated as their birth sex under U.S. law.
In the meantime, if actually implemented by auditors, her memo would effectively suspend numerous protections under the 2003 Prison Rape Elimination Act for trans and intersex people, whom the DoJ’s own data suggests are at much higher risk of sexual violence in prison [PDF link].
The DoJ has not commented publicly on the leaked memo, and The Independent has asked it to confirm or deny the memo’s authenticity. NPR also obtained a copy, corroborating its legitimacy.
“These changes are a green light for predators to sexually assault incarcerated adults and children who are already disproportionately at risk,” said Linda McFarlane, executive director of the non-profit campaign group Just Detention, which trains prison staff on PREA compliance and has several certified auditors on staff.
“The proposed revisions… [are] already sowing confusion among prison leaders, who have worked for more than a decade to put in place common sense rules to end prisoner rape.
“The Department of Justice would rather see incarcerated people, including children, be sexually abused than allow trans people to express their gender identity. It’s sickening.”
Gillian Branstetter of the ACLU likewise said: “The only reason not to follow the Prison Rape Elimination Act is if you do not want to eliminate rape.
“PREA audits are difficult enough to secure in any impactful or transparent way. Telling auditors just to ignore the risks queer people face is as explicit an endorsement of their abuse as you can get.”
Whether PREA auditors will actually comply remains unclear. Though trained and certified by the DoJ, they’re not actually federal employees, and often work under contract for state inspection agencies.
Passed unanimously by Congress in 2003, PREA is implemented via federal regulations that were updated in 2012 by the Obama administration to include specific protections for LGBT+ people.
Gregg’s memo was apparently sent out on Tuesday, December 2 to all DoJ-certified PREA auditors, who are responsible for assessing whether or not prisons and various other coercive institutions are complying with the law.
The memo claims that numerous specific LGBT+ protections conflict with Trump’s executive order, although it does not explain how, and says the DoJ is updating those standards to comply.
“Until these updates are finalized, and further guidance is provided, effective immediately, applicable federal and non-federal correctional facilities shall not be held to subsections of the PREA Standards that may conflict with [Trump’s order],” the memo reads.
Actually making these changes official is a lengthy and complicated process under U.S. law. But the memo further instructed auditors to simply stop assessing facilities’ compliance with a host of specific clauses, and said those sections would be frozen in the DoJ’s online audit reporting system as of December 3.
“Auditors should advise confinement facility and agency representatives to disregard the impacted provisions, or measures, listed above and ask them to refrain from uploading documentation that is no longer relevant to audits,” Gregg wrote.
One of those regulations requires facilities to train their staff on how to search trans and intersex people “respectfully” and “in the least intrusive manner possible”. Another says staff must be trained on “how to communicate effectively and professionally” with LGBT+ inmates in general.
One rule requires staff to consider on a case-by-case basis whether placing a trans or intersex prisoner with men or with women would endanger their health and safety. It also says staff must consider the prisoner’s own views on that subject.
Another rule requires incident reviews of sexual abuses to consider whether the incident was motivated by a prisoner’s trans or intersex status.
Gregg’s memo even orders the suspension of a rule that bans juvenile facility staff from treating a prisoner’s trans or intersex status as an indicator of likelihood that they themselves will be sexually abusive.
What this means in practice is unclear. ”PREA is still the law,” Shana Knizhnik, senior staff attorney with the ACLU’s LGBTQ and HIV Project, told Prism.
“Standards that are in place are still the law, and so this is essentially a directive to disregard the law.”
She said that the memo has created confusion among prison operators and advocates about which parts of PREA they are still required to follow.
However, she added that prisons could still choose to implement protections that go beyond federal regulations. State and local regulations would also continue to apply.
The National Association of PREA Coordinators similarly told NPR that since the DoJ has not finalized any rule changes, Obama’s PREA standards remain legally in force.
It claimed that the DoJ memo actually allows facility operators or corrections agencies “to continue following the regulation or, if they choose, to ignore it”, letting the federal government “to implement the President’s policy” while allowing local authorities to “determine how best to meet the needs” of trans prisoners.
