Weak DHS Rules Underscore Need to End Detention of Transgender Immigrants

The National Center for Transgender Equality (NCTE) and the Transgender Law Center (TLC) express disappointment in the final standards published today by the Department of Homeland Security (DHS) to address the severe problem of sexual abuse in immigration detention. While the final standards contain some valuable provisions, they fall short of the minimum steps needed to address the ongoing crisis of sexual abuse in immigration detention. In particular, the standards–which are, in key respects, weaker than those adopted by the Department of Justice (DOJ) in 2012 for prisons and jails–lack critical protections for transgender immigrants, who are among the most highly vulnerable to sexual abuse.

“The rules released by DHS today are not adequate to protect the safety of tens of thousands of real people who are at risk in detention every day,” said NCTE Executive Director Mara Keisling. “While NCTE will work with our allies to see that the positive steps that did make it into the DHS rules are fully implemented, far more needs to be done to reform and ultimately end mass detention.”​

Olga Tomchin, Soros Justice Fellow at the Transgender Law Center said, “It is a cruel irony that trans immigrants who flee persecution and believe they will be safe in the U.S. are then often met with state violence and further retraumatized by horrific treatment based on their trans status.”

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The weakness of the final rule is deeply concerning in light of the recent findings by the Congressional Research Service (CRS) that as many as 40% of allegations of sexual abuse are not reported to Immigration and Customs Enforcement (ICE) headquarters, that barriers to reporting abuse exist, and that compliance with existing sexual abuse standards is not consistently monitored. Notwithstanding these systemic failures, 20% of substantiated allegations of abuse found by CRS involved transgender victims–a percentage far exceeding their representation in the detained population.

NCTE Director of Policy Harper Jean Tobin said, “This is a tremendous missed opportunity which adds urgency to ending our multibillion dollar mass incarceration of immigrants. The lack of adequate protections for transgender immigrants in particular makes it clear that these vulnerable individuals are not safe in detention facilities and should no longer be detained.”​

Among many other protections left out of the final rule, DHS refused to add provisions prohibiting retaliatory deportation of those who report abuse; refused to strengthen protections from abusive searches or from excessive discipline of civil detainees; and refused to require facilities to use objective screening instruments. The standards fail to end long-term solitary confinement as a means of “protection,” stating a presumptive limit of 30 days–twice the time period studies have shown can have lasting medical harms–and providing no real assurance that isolation will not go on even longer. Perhaps most concerning, the rules will not apply at all to many ICE contract facilities until “substantive contract modifications” with ICE occur. In other words, many facilities could remain unaffected for years to come.

Tomchin added, “Detained transgender immigrants, including our clients, frequently experience such intolerable conditions in ICE custody that they desperately agree to give up their cases and risk persecution and death after deportation rather than remain in solitary one day longer. ICE is clearly incapable of detaining trans people with even minimum levels of dignity and safety and thus must no longer detain trans immigrants.”

With regard to transgender detainees, the final standards remain inadequate. DHS weakened protections provided by the DOJ PREA rule, and refused to include protections already routinely provided by many corrections and law enforcement agencies around the country. The result is that transgender detainees are left unprotected from abuse when taking showers or being searched by staff, or from being subject to punitive and discriminatory conditions on the pretext of protecting them from abuse. Moreover, the final rules permit facilities to automatically relegate detainees to restrictive “LGBT pods,” which the DOJ rules banned and which the National Prison Rape Elimination Commission called “demoralizing and dangerous.”

Notably, section 115.42(b) of the final rule codifies language that already existed, but which DHS has completely failed to implement, in its 2011 detention standards. This section requires that housing decisions for transgender detainees never be made solely on the basis of identity documents or physical anatomy, and instead be made on a case-by-case basis that considers a detainee’s self-identification and self-assessment of safety. By its plain language, this provision applies to all housing decisions, including the decision of whether a detainee should be placed in female or male housing. This means that transgender women must be housed with other women in appropriate cases, genital anatomy notwithstanding. Although this requirement already exists in its standards, DHS has continued to house all transgender women with men based on their anatomy. Now that this rule has been codified in a binding regulation, NCTE and TLC will look to DHS to ensure it is following the law by making these placements in a meaningful number of cases for those transgender women who continue to be detained.

“We are deeply disturbed by how these regulations fail our community and clients. In particular, instead of ‘protecting’ transgender immigrants, placing them in solitary confinement based solely on their gender identity causes real psychological and emotional damage, especially for those asylum seekers who are already suffering from PTSD and have a history of bias-motivated arrest and detention in their birth countries,” said Tomchin.

Ultimately, the numerous shortcomings of the final rule underscore that the mass incarceration of nearly 400,000 people a year in immigration detention is a failed and dangerous policy, and that immigration detention continues to be unacceptably harsh, hazardous, and unnecessary for transgender people in particular. To make matters worse, most transgender immigrants are asylum-seekers, and face unusually long periods of detention. NCTE and TLC call on President Obama and Secretary Jeh Johnson to ensure that vulnerable transgender immigrants are paroled or placed in alternative forms of custody to the maximum extent allowable by law. NCTE and TLC further calls on the President to abandon the $2 billion-dollar “bed quota” in his 2015 budget proposal, which requires incarcerating an arbitrary number of immigrants at all times.​

 

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