Proposed PREA Regulation for Immigration Detainees Includes Trans Protections
The Department of Justice (DOJ) released a final rule for the Prison Rape Elimination Act (PREA) in May that includes a number of protections for trans people in prison, protections that facilities are already working to implement with the help of trans and LGBT activists. But what about immigration detainees? The DOJ rule doesn’t apply to non-citizens detained under the auspices of the Department of Homeland Security (DHS), rather it asks DHS to promulgate its own rule. This was cause for concern among trans activists, as immigrants are often ignored by laws and regulations that are intended to protect US citizens.
Fortunately, DHS has released an initial draft of its own rule that includes at least some protections for trans immigrants in detention. The good news includes:
- A bar on examining detainees for the sole purpose of determining their gender. Permitted means of determining gender include a conversation with the detainee, a review of medical records if available, or learning the detainee’s gender as part of a broader medical examination, which must be conducted in private by a medical practitioner.
- A mandate for agencies to train security staff and law enforcement in proper procedures for pat-down searches, including searches of trans and intersex detainees specifically. Searches also must be conducted in the “least intrusive manner possible.”
- A requirement that staff consider factors that would mitigate potential dangers to detainees when determining where a detainee should be housed, including self-identification as trans, intersex, or gender non-conforming and the detainee’s concerns about physical safety.
- A flexible standard for housing determinations that takes into account gender self-identification in making an individualized assessment of how a given housing placement would affect the detainee’s mental health and well-being. Staff must consult with a medical or mental health professional as soon as possible and cannot base placement solely on identity documents or physical anatomy.
- A twice-yearly review of housing placements for trans and intersex detainees to review any new safety threats.
- A requirement that trans and intersex detainees be given the opportunity to shower separately “where operationally feasible.”
- Training on effective and professional communication with detainees, including LGBT, intersex, and gender non-conforming detainees.
- Explicit definition in the rule of transgender, intersex, and gender non-conforming.
Though there are some limits to how quickly the proposed rule could be implemented once adopted, and to which facilities it would apply to and when, overall this is a big step forward in the treatment of trans immigrants held in detention or temporary holding facilities. These rules track for the most part with those adopted by DOJ for prisons and other facilities, and give activists space to train staff in a way that encourages respecting individuals’ self-identities. The incorporation of self-identification both in the section on determining gender for the purposes of searches and in the section on housing determinations is promising. Though we have certainly seen troubling cases of individual staff abusing discretion, this rule sets a clear standard that allows attorneys to effectively challenge unfair treatment of trans, intersex, and gender non-conforming detainees. The mandated staff training also would encourage at least some cultural shifts in the direction of respect for LGBT, intersex, and GNC populations.
After a 60-day public comment period, DHS will draft a final rule for implementation. We’ll be sure to provide you with updates!