Review of Guidelines

LGBT individuals have higher prevalence of mental disorders than heterosexuals and have poorer mental health outcomes.Reference Mereish and Poteat ³ Specifically, higher levels of depression, suicidality, interpersonal trauma, substance use disorders, and general distress have been found for transgender individuals.Reference Valentine and Shipherd ⁴ Recent increased attention of the effects that stigma, discrimination, shame, rejection, and victimization have on LGBT individuals’ mental health has been studied.Reference Mereish and Poteat ³ The high prevalence of mental illness in LGBT individuals may be explained by the Minority Stress Model.Reference Meyer ⁵ Minority stress is caused by prejudice, stigma, discrimination, daily hassles, marginality, oppression, hostility, and nonsupportive environments that create unique stressors in LGBT individuals and produces adverse health outcomes, including developing or worsening of mental health disorders. Despite the increased attention to the impact of stigma and discrimination in sexual minority groups, there are few strategies to develop interventions to reduce illness morbidity.Reference Kidd, Howison and Pilling ⁶ Advocacy strategies are recommended to reduce the negative behavioral and environmental experiences by LGBT individuals.Reference Pandya ⁷ Secured settings are hetero- and cisgender-normative environments that, without the appropriate policies to decrease the negative impact of the environment and the attitudes toward LGBT residents, can worsen their mental health. Recommended strategies to decrease minority stress are not only implementable but also cost-effective for the facilities.

National Center for Transgender Equality

The National Center for Transgender Equality (NCTE) in 2018, published Policies to Increase Safety and Respect for Transgender Prisoners: A Guide for Agencies and Advocates, which identified the unique needs of LGBT individuals in secured settings. ⁸ LGBT individuals endure potential abuse and violence when serving time in these agencies. More specifically, transgender people are 10 times more likely to be sexually assaulted by staff and other residents in state and federal prisons and 40% reported a sexual assault in the previous year.Reference Beck, Berzofsky and Caspar ⁹ Secured agencies should develop and implement policies that mitigate and reduce these rates of interpersonal violence. The NCTE guide discusses the Prison Rape Elimination standards that apply to the LGBT population. ¹⁰ In 2012, the Prison Rape Elimination Act (PREA) developed standards to protect all inmates including LGBT individuals in federal and state prison. ¹¹ Although, PREA standards are only legally binding in state and federal prisons, adopting these standards in jails and state hospital policies is one substantive step toward the safe provision of services to LGBT residents. The NCTE guide includes how to prevent discrimination, prevent abuse, perform risk assessments, appropriate placement, dignity, respect, privacy, access to health care, and community reentry.

The NCTE guide recommends that agencies have policies that contain clear nondiscrimination statements. The nondiscrimination statement should bar discrimination and mistreatment based on sex, age, race, national origin, disability, and actual or perceived sexual orientation and gender identity. The policies nondiscrimination statements should include that LGBT residents will be treated with respect, fairness, and dignity. The policies’ nondiscriminatory statements should also contain language that states the agency will have zero tolerance for harassment based on sexual orientation, gender identity, and expression. A simple and low-cost intervention that shows support to LGBT residents is to post nondiscriminatory statements in communal areas.

The NCTE recommends that during the admission or intake process, staff identify vulnerable populations, and prevent victimization. Admission or intake policies should contain procedures to identify LGBT individuals, provide for their safety, and establish the appropriate delivery of care. The University of California Los Angeles’ Williams Institute website is a helpful resource on how to ask questions about sexual orientation. ¹² The Ford Foundation funded a multiyear project at the Williams Institute to identify the best scientific approach to gather data on sexual orientation. Also, PREA standards require assessment and documentation of risk of victimization within days of arrival. It is also an important PREA requirement that the assessments are conducted by staff who are trained in effective and affirmative communication with lesbian, gay, bisexual, transgender, intersex, or gender nonconforming residents in confidential settings. The PREA Resource Center provides training webinars such as “Respectful Communication with LGBTI Offenders” and “Understanding Lesbian, Gay, Bisexual, Transgender, Intersex Inmates, Residents and Detainees” that help staff learn how to interact with LGBT residents with knowledge, respect, and compassion. ¹³ The period of admission or intake allows time to ask the resident their preferred name and gender pronoun as well as to document this information so that staff are aware of how to address the resident. Policies should also include the resident’s preferred staff gender with whom they feel most comfortable when searches are conducted or when staff observe or assist during medical procedures. These simple actions taken by staff during the admission or intake period can prevent stress in LGBT people and can reduce the risk of developing psychological distress. During admission or intake, as with any individual, it is important to assess for the need of mental health services for LGBT patients. Mental health questionnaires are often used to identify those individuals that need to be referred to mental health professionals.

Placement or housing assignments of LGBT residents, especially transgender individuals, can be challenging. Policies should include that placement or housing determination will be made through a case-by-case assessment and on an individualized basis. Segregation based solely on their gender or sexual orientation, such as solitary confinement or isolation, is not an appropriate placement for LGBT residents. LGBT individuals are more likely to be placed in solitary confinement than heterosexual residents. The Bureau of Justice Statistics reported that approximately 30% of lesbian, gay, and bisexual prisoners were in restrictive housing in 2011-2012, compared to 18% of heterosexual prisoners, and 22% of lesbian, gay, and bisexual jail inmates had been in segregation compared to 17% of heterosexual jail inmates.Reference Beck ¹⁴ PREA standards prohibit individuals at high risk for victimization such as LGBT residents to be placed automatically in involuntary segregated housing, unless there is no other alternative to separate them from likely abusers or for a short period while a placement assessment is completed. Placing LGBT residents who suffer from mental illness in segregation may be detrimental since it may increase their psychiatric symptoms. Some agencies, which do not have to comply with PREA standards such as nonfederal jails and prisons, have created LGBT-only housing units. Should these units be available to the organization and utilized, it is important to make residents fully aware that such placement is voluntary and available upon request by the resident. LGBT-only units should have the same privileges, programing, treatment, education, and work opportunities as non-LGBT units. PREA standards also prohibit having a blanket policy to house transgender residents based on their sex assigned at birth or observed anatomy. Every effort should be made to place an LGBT resident in a unit that has residents consistent with their identified gender, unless issues of safety and security prevent such placement.

Many organizations have committees for LGBT residents that assist in placement upon admission into the facility. Some organizations use these committees beyond placement. For example, committees could be involved in determining what property the resident can retain in their possession such as items that supports their identified gender, approving special accommodations such as separate shower times, or authorizing medical treatments such as gender affirming hormone replacement therapy or surgery. It is recommended that the composition of these committees contain medical and mental health professionals who can inform and educate the rest of the committee members on LGBT-specific issues. It is important that these committees advocate for the resident’s preferred placement, their access to property related to their gender identity and expression, and their access to the affirmative medical treatment they need.

When developing policies for LGBT residents in secured settings, the NCTE guide emphasizes privacy, dignity, and safety. LGBT patients have the right to privacy. Special attention should be placed on policies regarding access to bathrooms, especially for transgender residents that are consistent with their identified gender. In multiuser bathrooms, privacy can be accomplished with privacy shields or having the resident use it at a different time than other residents. This should be done without limiting the resident’s shower time or without isolating them completely from other residents. Having individual toilet stalls with doors and individual showers with curtains are preferred in order to maintain the privacy and dignity of all residents. The NCTE guide recommends that policies should also include the ability of LGBT residents to have access to purchase personal items. These items should not be limited to undergarments but should include items consistent with the person’s preferred gender such as clothing, grooming items, cosmetics, and accessories. Some facilities have adopted a gender-neutral commissary lists. These commissary lists contain items for all genders. Any resident can purchase any item from the list. Another recommendation from the NCTE is to allow LGBT residents to have same-sex partner visitations including conjugal visits. LGBT residents should be able to show mutual and consensual displays of affection, such as holding hands and kissing unless these actions are prohibited to all residents in the facility. These are additional low-cost efforts, when implemented, can improve the psychological wellbeing of LGBT residents.

Policies should ensure that LGBT patients receive the same access to medical and mental health care as any other resident. Common law cases such as Sterling v. Borough of Minersville, Powell v. Shriver, Thomas v. District of Columbia, and Moore v. Provo concluded that the constitution protects the privacy of highly personal information such as sexual orientation, gender identity, and HIV status. This information shall be kept private by staff unless the LGBT resident discloses this information with others. Special medical treatment considerations in the LGBT community include but are not limited to HIV care and prevention, gender affirming hormone therapy, and gender affirming surgery. Special mental health considerations in the LGBT community include but are not limited to Gender Dysphoria, Trauma-Related Disorders, Anxiety Disorders, and Depressive Disorders. According to the NCTE guide, denying the treatment of these conditions and disorders in institutionalized persons may constitute a violation of the Eighth Amendment. The American Medical Association, American College of Physicians, the American Psychological Association, the American College of Obstetrics and Gynecology, and the WPATH all agree that transition-related treatments are safe, effective, and medically necessary. These treatments are no longer considered cosmetic or experimental. These interventions including providing gender-affirming support by mental health professionals are the approved treatments for transgender people who are transitioning. The WPATH in its Standards of Care for The Health of Transsexual, Transgender and Gender Nonconforming people Reference Coleman, Bockting and Botzer ¹⁵ provides guidelines for medical and mental health treatment and includes criteria for gender affirming hormone therapy and gender affirming surgery.

Reentry planning poses a unique challenge to staff placing LGBT residents back in the community. The same best practices that apply to secured settings should apply to reentry facilities. PREA standards and fair housing laws that prohibit discrimination against LGBT people should also be applied to community-based facilities (eg, treatment centers, halfway houses, group houses). Agencies should also ensure that they have contracts with community facilities that adhere to these practices. In addition to appropriate housing, other special considerations for LGBT residents when developing a reentry or prerelease plans, include: ensuring continuity of medical services for LGBT-specific care; helping transgender residents obtain identification documents that reflect their authentic gender identity; and providing LGBT-specific community and online resources.

National Institute of Corrections

The NIC in 2015 developed a policy review and development guide, Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Custodial Settings. Reference Smith and Yarussi ¹⁶ This guide provides a substantive review of constitutional law that should be considered when developing LGBT-affirmative policies. Also, they provide checklists that are based on case law and on PREA standards that apply to LGBT residents. If any of the questions on the checklists are answered “No,” the guide recommends addressing that specific issue in policy. NIC contends that the recommended standard is that all policies should be updated to contain all the recommended principles included in the checklists. The NIC’s guide also contains appendices containing useful resources for developing policies for LGBT persons.

Another useful aspect to the NIC guide is that it provides examples of case law where institutions have been found to violate the Eighth Amendment, that is, the right to be free from cruel and unusual punishment. These violations are mostly based on deliberate indifference, or the disregard of the consequences of one’s acts or omissions. Agencies were found in violation of the Eighth Amendment when they failed to protect LGBT people from abuse or harassment, used needless segregation, failed to provide medical treatment, failed to protect from unnecessary searches, prohibited same-sex partner visits including conjugal visits, denied marriage to a same sex partner, prohibited signs of affection between same sex couples if the same did not apply to heterosexual couples, failed to protect information concerning sexual orientations, failed to protect HIV status, and prohibited possession of nonsexually explicit LGBT materials.

Specifically, regarding transgender inmates diagnosed with Gender Dysphoria, agencies were found in violation of the Eighth Amendment when they failed to recognize Gender Dysphoria as a serious medical condition and failed to provide the medically approved treatment for the condition such as gender affirming hormone therapy and gender affirming surgery. Agencies cannot prevent residents diagnosed with Gender Dysphoria from expressing and adopting the gender consistent with their gender identity since it is considered medical treatment. Treatment for Gender Dysphoria cannot be denied due to cost or because the agency officials disapprove of the provision of such services. Moreover, according to the NIC guide, agencies cannot use unproven security and safety issues as a reason to deny Gender Dysphoria treatment.

The Joint Commission

In 2011, The Joint Commission (TJC), published Advancing Effective Communication, Cultural Competence, and Patient-and-Family Centered Care for Lesbian, Gay, Bisexual and Transgender Community: A Field Guide. ¹⁷ The TJC field guide can be useful when developing policies for LGBT residents. The strategies and recommendations in this field guide are divided into five main areas or domains. These domains are (1) leadership, (2) provision of care, treatment and services, (3) workforce, (4) data collection/use, and (5) community engagement. The following is a brief summary of each domain.

In the leadership domain, TJC recommends integration of LGBT patient needs into the existing and new policies in their accredited facilities. In particular, they recommended that policies contain nondiscriminatory protections for sexual orientation and gender identity and expression. Policies should provide the patient with the right to identify a support person of their choice in the facility and to define family broadly to include different—and same—sex partners and those people significant to the patient’s life regardless of familial or non-familial relationship to the patient. Policies should have a confidential and reliable method for patients to report discrimination and disrespect. If patients are disrespected, intimidated, harassed, or abused by other patients or staff, a disciplinary process needs to be in place to address these behaviors. Importantly, this domain requires that the facility leadership identifies staff accountable to oversee efforts to provide culturally competent and patient-centered care to LGBT patients and families, as well as establishes a high-level advisory group to monitor supportive efforts, identify gaps, and use information to establish quality improvement activities. The recommendation also includes identifying support staff and physicians with special expertise or experience with LGBT issues.

Regarding the provision of care, treatment, and services domain, TJC recommends the creation and maintenance of a supportive and affirming environment for LGBT patients. Their recommendations include creating a LGBT bill of rights that is posted in high visibility areas of the facility. The common areas, including the visiting rooms, should be welcoming to LGBT patients and their families. It is also recommended that “Safe Zone Area” signs with LGBT-related symbols are posted in these common areas (eg, rainbow icon). Also recommended is having unisex or single stall bathrooms. The agencies must ensure that visiting polices are fair and nondiscriminatory. The language used by staff with LGBT patients should be inclusive and gender-neutral, and staff should be cautious and avoid bias, stereotypes, and misconceptions about LGBT patients. Staff should also understand and respect the patient’s choice to disclose their sexual orientation or keep it private.

The workforce domain ensures that LGBT staff are treated with respect and have equitable treatment and inclusion. Facilities should have policies that protect LGBT staff from abuse, discrimination, bias, and harassment that targets staff members’ sexual orientation or gender identity and expression. Staff working in the facilities should have the same protections as LGBT patients. LGBT staff should be offered health care coverage and benefits equal to any other employee including coverage of same sex partners and transgender health. Recruitment and hiring of staff must be inclusive and equitable; human resources departments should provide nondiscrimination policies and statements in writing to new employees.

The data collection and use domain provides examples of what information to gather from all patients to inform facility’s policies, program development, quality improvement initiatives, and outreach efforts. These standards around data collection practices assist health care organizations in meeting patient population needs; most importantly, empirical data collection can help health providers to understand their patients and improve the provision of affirmative and competent care. It is recommended that certain data are collected from all patients, including relationship status, sexual orientation, sex, and gender identity. This information can be collected during the admission and intake process, and patient responses should be voluntary, self-reported, and protected. One important way that health care organizations can improve their patient data collection and better serve their patients is to ensure that electronic medical records have gender identifications beyond the binary of male and female. If the hospital develops a survey, information about sexual orientation and gender should be included. Hospital staff should be trained in how to collect data from all patients, especially those who are LGBT.

Lastly, the TJC recommends that facilities collect feedback from LGBT patients, families, and surrounding LGBT communities to better understand the health needs, identify gaps, and to improve areas where deficiencies are found. It is recommended that patient satisfaction surveys include questions on sexual orientation and gender identity. It is important to receive feedback from families on how the facility and staff responded to their needs during the duration of the health care encounter. Also, the facility should engage the surrounding LGBT community and establish outreach partnership efforts that ensure the facility’s commitment to provide equitable care to LGBT patients.