Sex Segregation, Safety, and Security in Prisons

Sex segregation has characterized prisons in the United States since the early 1800s, beginning with separate rooms, then quarters, and eventually taking the form of separate facilities by the late nineteenth century (Rafter Reference Rafter2004). Varied intentions characterize this segregation, from small numbers of women prisoners, to efforts to protect women from violence and abuse, to gendered treatment and programming (including less physically demanding tasks for women), and to attempts to keep them from “sexual mischief” (Rafter Reference Rafter2004, 13; see also Britton Reference Britton2003). Rafter (Reference Rafter2004, 13) discusses the consequences that segregation had for women in terms of what she refers to as “partial justice”:

A brief experiment with sex integration in the latter half of the twentieth century notwithstanding (Herbert Reference Herbert1985; Johnson Reference Johnson1987; Mahan et al. Reference Mahan, Mabli, Johnston, Trask and Hilek1989), prisons remain sex segregated to this day. Despite the existence of facilities designated expressly for women, the US carceral system also remains predominantly designed with the male prisoner—who continues to represent the vast majority of those incarcerated—in mind (Britton Reference Britton2003). Rapidly increasing incarceration rates and continued disparities in available resources for women invited a “parity movement” in the 1980s in which reformers sought to establish “equal, but not identical” resources for female prisoners (Rafter Reference Rafter2004, 185). More recently, a related sentiment has produced gender-responsive correctional policy and programming that call for focusing on treatment that addresses gendered pathways to incarceration and the effects of imprisonment unique to female offenders (Bloom, Owen, and Covington Reference Bloom, Barbara and Covington2003). The very use of the qualifier gender before responsive to signal “for women” highlights the explicitly gendered nature of the prison and the hegemony of sex segregation.

Today, sex segregation remains a taken-for-granted part of the carceral landscape—so much so that policies simply indicate where male and female prisoners will be housed without specifying how to determine who is included in these categories (Sumner and Jenness Reference Sumner, Jenness, Peterson and Panfill2014). The hegemony of this dichotomous system of sex segregation is further evidenced by the policies and procedures that are designed with these taken-for-granted categorizations in mind. Sumner and Jenness (Reference Sumner, Jenness, Peterson and Panfill2014) provide examples of these policies that attend to even the finest distinctions along gendered lines in California prisons—policies that reflect outdated, traditional assumptions about gender with regard to hygiene, grooming, and personal items (e.g., a wedding/engagement ring set may be worn by female prisoners but only a wedding band may be worn by male prisoners). Challenges to gendered distinctions have survived judicial review (see Deblasio v. Johnson 2000) on the grounds that they serve the legitimate penological interests of safety and security.

Sex segregation has also been justified on the grounds that it presumably facilitates another, very specific, institutional rule that ensures institutional safety and security: no sexual contact among prisoners (see, e.g., Dolovich Reference Dolovich2011,Reference Dolovich2012). As one Oregon magistrate judge argued in response to a challenge to anatomy-based housing assignments: “prevention of heterosexual crime in prisons is a substantial government interest” (Stevens v. Williams 2008, 13) and anatomy-based housing “is substantially related to this interest” (14) inasmuch as it facilitates this goal. Even as this heteronormative rationalization clearly persists in spite of decades of literature on sexual relationships in women's and men's prisons alike (Sykes Reference Sykes1958; Ward and Kassebaum Reference Ward and Kassebaum1965; Dolovich Reference Dolovich2012), other regulations target same-sex sexual contact in prisons more explicitly, still in the name of safety and security. From the perspective of prison officials, sexual contact may constitute and/or have the potential to lead to violence among prisoners; thus, it carries serious disciplinary consequences in its violation (Borchert forthcoming).

A focus on sexual assault in correctional facilities has experienced resurgence alongside the passage of the 2003 Prison Rape Elimination Act, which broadly construes sexual acts as victimization and misconduct (see also Beck, Rantala, and Rexroat Reference Beck, Ramona and Rexroat2014). Because the distinction between consensual and nonconsensual sexual acts in an otherwise coercive setting is difficult to make, some have argued that casting sexual misconduct as a violation of prison rules resulting in serious disciplinary action has resulted in criminalizing this behavior under the guise of mere administrative management (Borchert Reference Borchert, Halperin and Hoppe2015; see also Pasko Reference Pasko2010−2011). The rules and sanctions that focus on sexual misconduct rest on a “pervasive logic of punishment so deeply embedded that it can withstand” (Borchert Reference Borchert, Halperin and Hoppe2015, 14) progress in LGBT rights beyond prison walls precisely because it has become a fixed part of prison culture and because it is so tightly coupled with institutionalized ideals of safety and security (Borchert forthcoming).

These legitimate penological interests—safety and security—are in fact paramount to the organizational mission of prisons in the United States. Prisons are both designed to keep society at large safe and constitutionally bound to ensure safety within prison walls. As Gaes et al. (Reference Gaes, Camp, Nelson and Saylor2004) demonstrate in their survey of correctional mission statements across North America, safety and security are featured in 96.2 percent of the department mission statements. Even the correctional move toward what Feeley and Simon (Reference Feeley and Simon1992) refer to as the New Penology, which privileges risk assessment and performance measures over substantive goals of rehabilitation and deterrence, has similarly prioritized safety- and security-related outcomes.

Further, a prison culture that valorizes hypermasculinity based on the achievement of strength and toughness (Sykes Reference Sykes1958; Toch Reference Toch and Bowker1998; Sabo Reference Sabo, Sabo, Kupers and London2001) reinforces the legitimacy of a proclaimed professional institutional identity and subsequent policy structured around the prevention of violence between inmates and on staff, as does a gendered organizational work structure (Britton Reference Britton1997). Indeed, the tagline of America's largest and most powerful correctional officers' union proudly proclaims that it represents “the men and women walking the toughest beat of the state” (California Correctional Peace Officers Association 2014). Simply stated, quite apart from institutional achievement of these espoused goals in practice, at the center of the institutional identity of prisons—and subsequently underlying rationales for prison policy and procedures—are the explicit goals of safety and security.

The maintenance of safety and security—ostensibly achieved at least partially through sex segregation—is challenged by the existence of transgender women in prisons designated for men. US policies that house prisoners primarily according to genitalia result in a uniquely vulnerable population of women housed among men—situations in which their routine victimization has been empirically documented (Jenness et al. Reference Jenness, Maxson, Matsuda and Sumner2007; Jenness, Sexton, and Sumner Reference Jenness, Sexton and Sumner2011). Although systematic empirical research on transgender women in prison remains sparse, at least in part because of their sustained invisibility in official data, increasing documentation reveals their substantial vulnerabilities in terms of physical safety as well as neglected needs in US correctional facilities (Sylvia Rivera Law Project 2007; Emmer, Lowe, and Marshall Reference Emmer, Lowe and Barrett Marshall2011). In addition to increased risk for physical violence, transgender prisoners are often limited in their access to resources provided in correctional facilities by virtue of housing practices used as protective measures that also result in isolation. In addition, transgender prisoners demonstrate unique needs related to medical care (e.g., hormonal treatment), hygiene, and clothing items, and dignified treatment as it relates to name and pronoun use. As innovative strategies in related policy and practice remain few (Hawkins Reference Hawkins2011; Humm Reference Humm2014), correctional systems are faced with the dilemma of difference in determining how best to proceed in the management and treatment of transgender prisoners in a way that simultaneously ensures their protection from unique, heightened risk and provides equal access to resources.

Dilemma of Difference

Minow (1990) presents the dilemma of difference as a challenge centered upon how law and policy acknowledge, attend to, and at times reify differences among individuals and, as a result, boundaries between social groups. The impetus for this concern is what Minow (1990, 12) refers to as “the conundrum of equality in a legal and social world that has made certain traits signify important differences in people's status and entitlements.” It is in this legal and social context that Minow examines the question of whether equality can be achieved by focusing on or ignoring differences across groups of people. While focusing on difference may ensure that a marginalized or underserved group's specialized needs are met, it may also cast the group in a stigmatized, and therefore subordinated, position relative to the majority. Ignoring difference, on the other hand, may result in specialized needs being overlooked in the name of equal treatment, and thus going unmet.

Minow (1990) examines these dilemmas through an analysis of distinctions the courts have made between groups of people in pursuit of equality, with particular attention to the legal logic of the courts regarding the locus, basis, and consequences of difference. She presents an analysis of difference that examines it as a comparative characteristic that takes on meaning only in relation to something else. With regard to the law, difference emerges against the backdrop of “the dominant institutional arrangements … designed without that [particular] trait in mind” (Minow Reference Martha1987, 14). From this perspective, “to be different is to be different in relationship to someone or something else—and this point of comparison must be so taken for granted, so much the ‘norm,’ that it need not even be stated” (Minow 1990, 50). She goes on to describe the conditions that allow this point of comparison to remain implicit, but nonetheless carry great weight: “the unstated reference point promotes the interests of some but not others; it can remain unstated because those who do not fit have less power to select the norm than those who comfortably fit within the one that prevails” (Minow 1990, 51). Thus, the consequences of difference stem primarily from the failure of our social and legal arrangements to recognize and attend to this relativity, and their tendency to instead treat difference as innate, fixed, and objective.

Minow (1990) identifies five assumptions that undergird the dilemma of difference; these assumptions focus on the centrality of the perspective of the namer (the power position) and the named (the position of difference) in creating difference. First is the assumption that “difference is intrinsic” (Minow 1990, 53) rather than relational. This leads to the second assumption: that the point of difference—the normative referent—is unstated, is assumed to be normal, and, therefore, remains uncontested. In law and policy, these categories are commonly white, male, able-bodied, and heterosexual. Third, the namer's perspective is understood as “objective, rather than subjective” (Minow Reference Martha1987, 32) and certainly privileged over the perspective of the named, which is the fourth assumption. That is, the perspective of the named is overlooked or taken for granted as factored into the perspective of the namer of difference, whose perspective is not considered within the context of its subjective context. Finally, the status quo is assumed to be “natural and neutral” (Minow 1987, 33). Taken together, these five assumptions reveal the pivotal role that the hegemony of law plays in the dilemma of difference.

Minow's (Reference Martha1987, Reference Martha1990) analysis of the dilemma of difference examines several legal domains, including law related to special education and employment, which reveal the challenges associated with organizing around points of difference in order to achieve equality. Other scholars have used this framework in different legal arenas. For example, Jenness and Grattet (Reference Jenness and Grattet2001) examine the dilemma of difference through the lens of hate crime law and the inclusion of the category of disabilities, while Jenness (Reference Jenness2002−2003) examines the inclusion of gender as a category applicable to both victims and offenders in hate crime law. More recently, scholars have examined the dilemma of difference in the contexts of LGBT family rights (Richman Reference Richman, Fleury‐Steiner and Beth Nielsen2006) and sentencing decisions (Gomez Reference Gomez2010). Though not explicitly examining the matter through the dilemma of difference framework, a look at the history of women's prisons also reveals this dilemma in practice. Even if the segregation of women into separate reformatories, as discussed previously, reduced abuse and violence by male prisoners, it also resulted in limited access to resources in an ancillary system that received minimal attention as compared to the larger, men's prison system. Across these diverse arenas, the dilemma of difference reveals the tension between hegemonic legal power and groups of people cast as different.

Resistance and Friction

The sociolegal scholarship on resistance identifies and exposes cracks in the seemingly perfect façade of law's power. This literature displays a wide range, from research that has examined explicit, intentional resistance, to research that construes tacit resistance or unintentionally resistant acts as resistance nonetheless. Hirsch and Lazarus-Black (Reference Hirsch, Lazarus‐Black, Susan and Lazarus‐Black1994, 8) conceptualize this range as a continuum of types of resistance, from “subtle, ‘everyday’ opposition to organized rebellion.” A rich body of research has examined resistance to the law—both through acts that subvert the law, and through legal means themselves—that span this continuum in a variety of contexts. This literature has examined acts of legal resistance among a variety of disenfranchised or marginalized groups, including Malaysian peasants (Scott Reference Scott1985), welfare recipients (Sarat Reference Sarat1990), Mrs. G., “a woman subordinated by race, gender and class” (White Reference White1990, 5), a black domestic worker in suburban, middle-class New Jersey (Ewick and Silbey Reference Ewick and Silbey1998), parents of children with disabilities (Engel Reference Engel1993), opponents of South African apartheid (Abel Reference Abel1995), and the Jewish community in Nazi-occupied Warsaw (Einwohner Reference Einwohner2006).

Scholars have continued in this vein of examining resistance among the disempowered by bringing the study of resistance inside prison walls. Studies of resistance to the prison regime examine the negotiation of power in a system that is rigidly and blatantly structured by law—one in which law is “emblazoned across the landscape” (Calavita and Jenness Reference Calavita and Jenness2013, 72). In this overtly legal context, resistance has been examined in the form of lawsuits challenging the constitutionality of prisoners' conditions of confinement (Milovanovic and Thomas Reference Milovanovic and Thomas1989), prison riots and escape attempts (Sparks, Bottoms, and Hay Reference Sparks, Bottoms and Hay1996), female prisoners' struggles to maintain some semblance of control over their lives (Bosworth Reference Bosworth1996), prisoners' assertion of racial, gender, and sexual identities (Bosworth and Carrabine Reference Bosworth and Carrabine2001), the feigned compliance and manipulation that constitutes male prisoners' “strategic, backstage resistance” to the prison system (Crewe Reference Crewe2007, 256), and hunger strikes over inhumane conditions of confinement (Reiter Reference Reiter2014).

The acts of resistance described and analyzed in this diverse literature—both inside and outside prison—span the entire continuum from tacit or oblique resistance to conscious or intentional rebellion. More recently, however, Rubin (Reference Rubin2014) has taken a critical stance on whether resistance can truly be demonstrated unwittingly or unwillingly. In prisons in particular, Rubin makes a distinction between resistance and what she refers to as friction—prisoners' exercises of free will that may work against the prison regime, but are not intended as acts of resistance. Rubin (Reference Rubin2014, 1) notes that “secondary adjustments … that violate the prison regime's rules or expectations or, though technically consistent with the rules, frustrate its ultimate goals” are often construed as resistance, despite a lack of evidence about the consciousness or intentionality of these acts.

In her work, Rubin questions the utility of such agency-centric interpretations of prisoner behavior, which, she contends, dilute the concept of resistance. Instead, she emphasizes the importance of a conceptual category—friction—that falls “between those who accept the prison regime and those who resist it” (Rubin Reference Rubin2014, 3). Rubin's (2014) concept of friction applies to transgender prisoners who claim and assert their identity as women within a men's prison—not as a conscious act of resistance against the institution, but simply as an expression of their individual identities. Using the data described below, we examine the friction that transgender prisoners produce for the institution, as they both face and pose a dilemma of difference inside prison walls.

Identifying the Difference: What Does “Transgender” Mean and Who Is Transgender in Men's Prisons?

In examining the dilemma of difference simultaneously faced and posed by transgender prisoners, it is critical to begin by understanding who transgender prisoners are—both from the perspectives of the namers and from their perspectives as the named. Given that transgender prisoners have emerged as a salient group in terms of policy and scholarship only recently, there still exists no agreed-upon definition or criteria for this group. Thus, one of the first goals of our interviews and focus groups was to determine what transgender means in the context of Pennsylvania prisons, and who is considered to be transgender.

We addressed these questions early on in staff interviews and slightly later in our interviews with the random sample of prisoners, after prison life and culture had been discussed. Our initial question about transgender prisoners was often met with confusion by staff and prisoners alike. Although it quickly became clear that transgender prisoners were a distinct—and distinctive—group of prisoners seen as different from the larger men's prison population, these initial responses demonstrated a lack of agreement about who, exactly, fell within the boundaries of this group.

For instance, when asked what transgender means and who is transgender in prison, many respondents paused and hedged before hesitantly offering up their preliminary thoughts. Clarifying questions such as “What does ‘transgender’ mean?” and “What do you mean … [prisoners with] stuff changed?” were common responses to our initial questions during focus groups with the random sample of prisoners.

Staff were less likely to respond to our questions with counterquestions, but still revealed quite a bit of uncertainty around the definition of transgender and its categorical boundaries. One correctional officer went so far as to point out that it would have been helpful to have advance notice that the interview would focus on transgender prisoners so he could have prepared for discussion of such a specialized topic. One notable exception to this pattern of hesitation, ambivalence, and confusion was a staff participant who readily (but inexplicably) launched into a comprehensive and detailed explanation of not only what “transgender” means, but also who it includes as an “umbrella term” that encompasses a range of different gender identities.

A common theme in initial descriptions of who is and is not transgender was the conflation of gender identity and sexual orientation—or, more specifically, the conflation of “transgender” with “homosexual.” At times, this conflation was demonstrated by halting questions about whether we were referring to “sexual contact” or “sexual preference” when we used the word transgender. Other respondents were more confident in their assertions. For example, one staff respondent noted that, questions of transgender status aside: “If you have a penis, it's some kind of homosexual.” When interviewers specifically asked respondents whether transgender and homosexual were one and the same, a common answer was a simple and definitive “yes.” Even transgender respondents frequently interchanged sexual orientation and gender identity, replying to questions about transgender prisoners with responses about the “other homosexuals.” This conflation was also reflected at the very end of each interview, when transgender respondents were asked about their sexual orientation. Four out of ten transgender prisoner respondents identified themselves as “transsexual” or “transgender” in response to this question.

Once respondents had settled on a working definition of transgender that they were comfortable with, their criteria for inclusion in the category “transgender” began to emerge. Among these criteria, biological markers of sex were granted central status in the determination of difference embodied by transgender prisoners. Staff and prisoners alike noted that transgender women in prisons for men were those who wanted breasts, or those who already had breasts by virtue of surgery or hormone therapy.

With discussions of medical interventions for transgender prisoners, the conversation shifted from mere biological markers to explanations of the myriad ways that transgender prisoners sought to reconfigure what biology might otherwise dictate for them. Transgender respondents addressed this theme by speaking candidly about the limitations that biology placed on them. For instance, one respondent prefaced a remark about her life as a woman by reminding the interviewer, “I am male. I am physically male.” One staff respondent defined transgender as someone who is born as one sex, but “transfers” to another. A prisoner in the random sample made this process more explicit, noting that transgender prisoners were “born with a penis and they get a vagina.” According to these definitions, biology is seen as both a springboard from which transgender prisoners seek to transform themselves, and the means by which they can achieve this transformation.

Respondents described the element of transformation as necessary for transgender prisoners to satisfy their desire to be something that they—in some way—are not. In our interviews with transgender respondents, this was generally expressed as a desire for their biology to reflect their psychological sense of who they are. For staff and prisoners who are not transgender, however, discussions of transformation seldom carried the implication of correction or realignment. Instead, they often held connotations of pretense and delusion as respondents described a transgender prisoner as someone who at minimum “elect[s]” or simply “want[s]” to become a woman, and at maximum “pretends to be another sex” or “believes he is female.”

Other elements that were not afforded primacy in respondents' definitions of transgender, but found their way into later descriptions of transgender prisoners when prompted, were nonbiological presentation or behavior. Only after discussing the primacy of biology did respondents begin to fill out their descriptions of transgender prisoners—often in the context of interactions with other prisoners and staff—with characterizations of aspects of their gender presentation and behavior. Both staff and prisoners described how transgender prisoners dress and act in feminine ways, despite the constraints of being in a men's prison environment. In focus groups with the random sample of prisoners, transgender prisoners were described as “flamboyant—they throw it out like you accept it.” One staff respondent noted that transgender prisoners are “slutty, they often strut around in spandex and small muscle shirts.” Another staff respondent explained that some transgender prisoners have a more feminine appearance and look “almost pretty.” She added that transgender prisoners' feminine appearance can make other prisoners feel as though they are “really with a woman.”

Respondents' perspectives on what makes someone transgender, although varied, were not entirely inconsistent with the selection criteria we used to identify transgender prisoners for our sample. Respondents' perspectives can be considered both more specific (in terms of references to discrete biological characteristics) and more expansive (as evidenced by the conflation of gender with sexual identity). In this way, initial responses confirmed transgender prisoners as a group labeled different by virtue of attributes related to their gender, and revealed a misunderstanding about this group related to assumptions about sexual orientation (that they are “homosexual”). As we moved on to questions about how transgender prisoners are situated within inmate culture and managed through institutional policies and practices, respondents' contentions became clearer and more self-assured, indicating that this group is, indeed, a recognizably different subset of prisoners.

Understanding the Difference: Transgender Prisoners Within the Larger Inmate Culture

While respondents' descriptions of transgender prisoners implicitly addressed how this group is situated within the larger inmate culture, these descriptions were often followed by more explicit discussions about the position that transgender prisoners occupy relative to others. Many staff respondents reported that transgender prisoners occupy a place in prison culture that is very similar to their position in society outside prison walls—a position determined by their difference and characterized by the stigma attached to it. One staff respondent noted that transgender prisoners' social location “mirrors general society” in that there is evidence of “homophobia” against transgender prisoners, but that most other prisoners refrain from acting upon it—despite the close quarters and ample opportunity to do so.

Another staff member noted that prisoners' reactions to a transgender prisoner on their cell block would be the same as what one might observe if a transgender person walked by on the street. She went on to explain that these “reactions are amplified” by the “hypermasculine” prison setting, but that the underlying attitudes toward transgender prisoners are “not unique to us [in a prison setting].” After all, she pointed out, “society as a whole doesn't know what to do with [transgender people].” A third staff respondent concurred, dividing the prisoner population neatly into two halves: those who “could care less” about transgender prisoners, and those who view them as “abnormality,” experience paranoia, and feel a need to act out against transgender prisoners.

While staff respondents addressed the parallels between prison and the outside world, prisoner respondents located their discussion firmly within prison walls. They discussed how exactly transgender prisoners fit within the larger inmate culture, including the particular types of stigma attached to being transgender in a carceral setting. In occupying a position on the outskirts of mainstream inmate culture, transgender prisoners joined “homosexual inmates”—with whom they were frequently conflated—and other social undesirables, including many types of sex offenders (“pedophiles,” “molesters,” and “rapists” among them), mentally ill prisoners, and snitches. The following exchange between prisoners in a focus group reveals the range of attitudes—from self-isolation to outright hostility—prisoners hold. In response to the question, “How do you think transgender inmates should be treated?” they stated: “Like somebody with a mental disease”; “Personally, I think [we should] open a big old oven and burn them”; and “That's between them and God. I got my own stuff to worry [about].”

The lack of respect described by staff and evident among the random sample was also acknowledged by transgender prisoners themselves. One transgender respondent explained: “It's hard. It's, it's very hard because … we're discriminated against—not only by the staff but by inmates who don't understand our lifestyle.” Other transgender prisoners noted that “we're looked down upon” and “mistreated.” Some transgender respondents explained that the negative orientations that other prisoners have toward them go beyond mere disrespect and verge on “hate” and “resentment” that often result in “demeaning” treatment. One transgender respondent explained that these attitudes are even more pronounced toward transgender prisoners as compared to “regular homosexuals.”

The heightened stigma associated with being transgender was explained as reflective of other prisoners' assumptions that being transgender was a lifestyle choice. One staff respondent explained that many prisoners actually regard various types of “low-functioning” prisoners with compassion, but make an exception for transgender prisoners. Because many other prisoners think that transgender prisoners chose their “lifestyle,” they regard them as having the capacity to make other—ostensibly better—choices. Another staff respondent concurred, noting that the general inmate population is more accepting and supportive of prisoners with mental health issues or physical disabilities, but that when it comes to transgender prisoners, it's “more of an open season on gay people.”

Interestingly, the lack of respect that transgender prisoners receive from the larger prisoner population manifested in a variety of different ways in terms of the social organization of the prison. In response to the question, “What do you think of [transgender prisoners]?” random sample respondents provided comments such as: “none of my business,” “don't touch me,” and “no problem with them as long as they don't infringe on me.” One prisoner in the random sample put it succinctly: “They don't intermingle with us; we don't intermingle with them.” Prisoners in a random sample focus group responded to the question “If there was one thing you would want people to know about transgender inmates, what would it be?” with requests to emphasize transgender prisoners' difference and heighten the visibility of this difference, including “keep them away from us” and “expose them” so the other prisoners will know who they are and act accordingly. Another prisoner in the random sample posited that transgender prisoners should be housed separately with “rapists, molesters, [and] homosexuals” so as not to mix them with the general population.

We also heard reports—primarily from transgender prisoners themselves—that the state of affairs was quite the opposite: rather than being ignored, they reported being subjected to intense scrutiny from both staff and other prisoners. As one transgender respondent explained: “Whatever we do is scrutinized. We're like, we stay under a microscope, you know what I mean? It's just like: walk up the hall, and people are watchin’; walk into chow, everybody's lookin’. I mean, they're lookin’ to see what are you going to do, or what can I get on you about, you know what I mean?” Another transgender prisoner described a similar state of scrutiny to convey her feelings about being transgender in prison: “It's hard bein’ accepted. It's like, you're constantly feeling like you're being watched, you're being talked about, you're being disliked. And, and so that makes me, it's hard enough just being, period. You know? The struggle that, you know, that we have to go through, just bein’ ourselves.”

This juxtaposition between transgender prisoners' experiences of scrutiny and other respondents' reports of disinterest or distancing stigma come together in an uneasy tension to characterize transgender prisoners' social location—a location characterized largely by the closely intertwined elements of relationships and victimization. Respondents reported that transgender inmates were more likely to be in relationships, along with “homosexuals, hide-away homosexuals, and closet cases.” One staff respondent explained that transgender inmates' engagement in relationships is “nonstop, from my experience.” Another staff respondent remarked that transgender inmates are either more likely to be in sexual relationships, “[o]r at least they're more forward about the ones they're involved in … that at least is more accepted. They aren't ridiculed by inmates for being in relationships.” Some respondents hastened to point out, however, that “it's not just transgender inmates” in these relationships. By and large, transgender inmates were described as engaging in relationships with male inmates who otherwise keep these relationships hidden for fear of ridicule and shame by others. What sets transgender prisoners apart, our respondents explained, is that they are open about who they are and who they are involved with, while the men in the relationships are not.

Prisoners and staff alike reported that with relationships come jealousy, envy, and conflict, often in the form of violence. One transgender respondent admitted that some transgender prisoners “like to have their cake and eat it too. So, they like to have like about four or five different boyfriends.” She went on to explain that, inevitably, “the fireworks start explodin’” and violence erupts. Indeed, staff cited “love triangles” and “love affairs gone bad” as primary catalysts for violence involving transgender prisoners.

Several transgender respondents recounted tales of arguments with their boyfriends or husbands that ended in physical violence. One particular respondent explained that “when you tell someone no, there is violence.” She illustrated this point with a story about being attacked by her ex-boyfriend on the yard with a metal bar after she ended their relationship. Another transgender respondent described a similar scenario, in which her “supposed husband” jumped her in the yard because she no longer wanted to be with him. She explained that her rejection of him was exacerbated by her ex-husband witnessing her “put[ting] it out there in the streets … in the yard” as an advertisement of availability to other prisoners.

Yet another transgender respondent reported being stabbed by her ex-boyfriend after she broke up with him. She recounted that the relationship “didn't work, and his thing was that, ‘[If] I can't have you, can't nobody else have you. I'll kill you.’ And, my thing was this, ‘You're gonna have to kill me ‘cause I'm not gonna stay where I'm not happy.’ So, you know, one day he stabbed me, you know, a couple times.” These instances reveal a link between relationships—particularly their discontinuation—and the victimization of transgender prisoners, as well as a telling juxtaposition of male prisoners' attempts to keep their relationships clandestine and their willingness to retaliate publicly against transgender prisoners for relational wrongdoings.

Respondents' perspectives on violence and victimization involving transgender prisoners apart from relationships varied. One transgender respondent told us how terrified she was of being incarcerated for the first time, and her fear that being transgender put her at greater risk for violence: “I tell ya, when I first came to jail, it was like I was so scared about people not acceptin’ me, I might get raped, or beat up.” She quickly found, however, that other inmates were more accepting of her than she expected. She notes: “It just didn't happen to me like that. … I didn't know people when I first came to jail, but I grew to know people and they, they saw how I was.”

Although this type of positive experience was not unique to this particular respondent, others reported instances of violence and victimization as common. One transgender respondent explained that she simply would not let a derogatory comment pass without responding. “[T]he majority of the times it's ‘Get out of here, you faggot,’ and stuff like that. And, I lose my temper and I go.” Revealing the pervasive culture of violence in men's prisons, the same respondent reminded us: “And sometimes I got to remind them, ‘Like, don't forget, we in a man's prison.’ [Points down toward her lap and laughs]. ‘Don't get it twisted. I am a man. If you put your hands on me, I'm gonna remind you.’ (laughter).” By invoking biology, among other things, transgender respondents revealed that they would defend themselves when necessary, even if that meant engaging in violence. One transgender prisoner explained that she had “had a few scuffles [and] broke a few nails. People think if you're transgender you have no testosterone. They see you as a girl.” Many prisoners saw it differently, however. For instance, one respondent pointed out: “He still a man—even if gay, I know he can fight me as hard as anyone.”

Yet there was a sense that these fights were not particularly instrumental for male prisoners, due to cultural stigma associated with fighting with a transgender prisoner. One transgender prisoner explained “it's like a lose/lose situation for them because, like if they get into a fight with someone like me, the way they say it is, if you lose, we're gonna talk about you because you got beat up by a dude with breasts (laughter). And, if you win, you don't get no prison points because you beat up a dude with breasts.” The same respondent indicated that this demonstration of a willingness to fight—and her accomplishments on that front—have been relatively successful as she is generally left alone now.

One staff focus group offered a similar explanation when responding to a direct question about whether transgender inmates are at greater risk for victimization. Answering “no,” they explained that there just is not “any satisfaction” in victimizing a transgender prisoner because “it's like kicking a woman.” Although mixed perspectives were evident among the respondents regarding transgender inmates' degree of risk of victimization, more often than not, staff did not think that transgender prisoners were at greater risk. They even indicated that sometimes transgender prisoners are on the other side of the violence, acting as the instigators.

Prisoners in the random sample expressed similar sentiments. One respondent with extensive prison experience stated: “Ain't like nobody attack them. I ain't seen it—been in jail thirty-seven years and never seen it. Seen 100 of them in that time coming through.” Consistent with this view, the themes that arose in the data regarding management and treatment of transgender prisoners from an institutional perspective did not explicitly center around violence and victimization; rather, they too highlighted involvement in relationships in addition to other procedural challenges.

Dealing with Difference: Policy and Practice Regarding Transgender Inmates in Men's Prisons

The difference embodied by transgender prisoners presented in the findings above is identifiable through physical characteristics and social interactions, reified through the social hierarchy of the inmate culture, and manifested in complicated relationships rife with violence. This difference presents more than just a dilemma for transgender prisoners; it also creates friction for the institution. Issues surrounding relationships and sexual activity loomed particularly large in discussions of the management of transgender prisoners from an operational perspective. One of the main institutional challenges discussed was where and how to house transgender prisoners. Nine out of ten transgender respondents in this study reported having “z-codes,” indicating that they are designated for single-cell housing. Staff respondents explained that a z-code is used to flag prisoners who may be at an increased risk of victimization or predatory behavior, with an emphasis on sexual victimization in particular.Footnote ⁵

Interviews and focus groups indicate, however, that this code is also used for “homosexuals” in general, and particularly “aggressive homosexuals” who are likely to engage in “continuous homosexual activity,” whether consensual or not. One staff member explained that if transgender prisoners are “openly gay we do z-code them so as not to promote open homosexuality, [because] sex is not allowed in prison.” While z-codes may be used for other statuses that render prisoners vulnerable, such as prior victimization, mental health issues, or even medical needs, our data reveal a considerable emphasis on “homosexuality” as the impetus for the application of z-codes to transgender prisoners—a use that corresponds to the overly broad understanding of the difference embodied by transgender prisoners and results in a reinforcement of difference through institutional labels.

This formal assignment of difference via z-codes often resulted in transgender prisoners feeling that they were being differentially punished. One transgender prisoner told of an instance when she wanted to report harassment from a correctional officer but knew that, as a result, she would be moved to protective custody.

Due to staff expectations of heightened engagement in sexual activity—and to a lesser extent, victimization—transgender prisoners described being subject to increased “monitoring” through z-codes and other measures. Consistent with transgender prisoners' sense that they experience more scrutiny than other prisoner populations, this feeling of differential punishment also extended beyond z-codes. One transgender prisoner described this, stating that:

Another transgender prisoner simply pointed out that “they was like mainly watching me—see if I was doin’ anything sexual instead of puttin’ focus on what was really happenin’ in reality there, like drugs, uh, gambling.” In fact, a staff respondent corroborated this, indicating that a major challenge associated with the management and treatment of transgender prisoners is “making sure there's no sex going on. If it's known to happen, you keep your eyes on that cell all the time and this takes your eyes off the rest of your job.” This issue was central to discussion of the main operational challenges that transgender inmates present from an institutional perspective: managing housing and the real and perceived “threat” of “homosexual activity.” As one staff respondent stated:

While z-codes attend to the sexualized difference assigned to transgender prisoners by staff and the random sample of prisoners, other operational considerations reflect attention to the more narrowly defined difference embodied by transgender prisoners from their own perspective—gender identity and presentation. The challenges posed by these considerations include extending the “courtesy” of letting “girls with very large breasts … wear a t-shirt in the shower” or taking extra care to be professional in searches in order to preempt the potential filing of a grievance. Interestingly, despite the friction that transgender prisoners' gender identities and presentations produce for the institution, in some cases officials' responses to these challenges attended to their uniquely gendered needs, rather than serving as additional punishment as was the case with z-codes.

The Consequences of Difference

The operational challenges and institutional responses described above set the stage for an acute dilemma of difference: a choice between orienting to transgender prisoners' actual or perceived difference as a legitimate driver of institutional policy and practice, or ignoring the very real consequences of transgender prisoners' difference at the risk of compromising safety and security. The tension between these choices—and the ways that staff and prisoners attempted, and often failed, to reconcile them—is evidenced by the presence of a strong common theme among transgender prisoners and staff alike that transgender prisoners should be treated “just like everybody else.”

For staff participants, this perspective—that they should and do treat transgender prisoners no differently than others—revealed two themes. First, it revealed a stated commitment to treating everyone equally because it is fair and appropriate policy to do so. This was also evident in some interviews through a general commitment to respecting everyone by not emphasizing difference. As one staff respondent said: “We just have to handle in [a] professional [way] whether you're dealing with transgender as your regular male inmate. Can't degrade them in any way, shape or form.” Another staff member stood out when she remarked that staff should “[r]espect them. I can't stomach people who treat people differently because they are different. They are just like us. There is nothing mentally wrong upstairs, they're just in the wrong body.” Although resulting in a similar outcome, some used a slightly different rationale for the “sameness” argument. As one staff respondent noted: “You come to jail and it's one policy, one policy only. If they had their junk removed, they could be in a female prison. But if not, then no.” Another staff respondent explained that “they are an all-male institution and you need to be in regulations for males. They cannot make special considerations for males who believe they are female.”

Alternatively, there was a sense that no particular group deserved specialized treatment and that once this began it would be a “slippery slope” in terms of policy and operations in general. An upper-level custody staff member explained that: “We are an all-male institution. If you still have what it takes to be in an all-male population then … what about the next population? And the next? Bras are never gonna be on a male commissary list. If it were bras, then it would be makeup, then hair ties.” Another staff respondent corroborated this point, stating that developing different policies for this group would lead to “open[ing] up a can of worms for anyone who's different in any other way—hard enough keeping track of policies as they are.” Other staff respondents—although only few in number—saw a need for particularized efforts, much like those in place for youth or elderly correctional populations, in order to develop specialized or targeted treatment.

Regardless of the rationales presented above, it was very common for staff and transgender prisoners to want “people to know” that they are (according to staff) and should be (according to transgender prisoners) treated just like everybody else. As one transgender prisoner stated simply: “We're human. Everyone's the same and wants respect. Same respect as anyone else.” In the correctional setting, this translates to the same policies and procedures for transgender prisoners as any other prisoner, equally applied. As another transgender respondent explained:

The strong stated and desired commitment to equity through equal application of the same policies and rules expressed by both staff and prisoners alike stands in stark contrast to the reality that transgender women are uniquely situated in men's prisons. This is nowhere more evident than with regard to their sexual activity—specifically with regard to the visibility of the victimization it engenders—but it also applies to their visibility as a group identified by their difference from the larger men's prison population in terms of gender and perceived sexual orientation. It is in these contrasting states—a desire for and commitment to equal treatment, despite their clearly differential social situation and the friction it produces—in which the dilemma of difference lies.