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On paper, at least, Hawaii is doing everything right when it comes to accommodating transgender inmates in the state’s prison system.
Under the state’s policy, the Hawaii Department of Public Safety cannot decide where to place transgender inmates based only on their anatomy; it must make an individualized assessment that takes into account each inmate’s gender identity and personal concerns about safety.
The policy mirrors the guidelines under the Prison Rape Elimination Act — a federal statute that established special protections for transgender inmates, recognizing them as an especially vulnerable population whose placement should be considered carefully.
But advocates worry that something is amiss in Hawaii’s actual practices: The state currently houses 29 transgender inmates — all of them at facilities corresponding to their gender at birth.
“The idea that none of them says they feel safest to be housed in a facility based on their gender identity is very unlikely.” — Chris Daley, deputy executive director, Just Detention International
“Even if you have a policy that’s PREA compliant, there’s something wrong with your implementation,” said Chris Daley, deputy executive director of the Los Angeles-based Just Detention International. “With 29 people — the idea that none of them says they feel safest to be housed in a facility based on their gender identity is very unlikely.”
Joanna Cifredo, racial and economic justice policy analyst at the National Center for Transgender Equality, questions whether the needs of transgender inmates are properly assessed.
“Anytime jurisdictions report that 100 percent of their inmates are housed according to sex assigned at birth, it begs a question of how they are assessing their inmates,” Cifredo said. “It’s important to ask how the question was formulated to ask the inmates about their safety. Formulating the question as, ‘Would you feel safer in men’s or women’s facility?’ — presenting it as an option — would be more helpful.”
Toni Schwartz, public safety spokeswoman, says the department assigns transgender inmates to facilities on a case-by-case basis, giving considerations to “a totality of issues” — including each inmate’s “vulnerability and predator factors,” as well as medical and security concerns — as recommended by PREA guidelines.
But Schwartz declined to provide any example of specific considerations that take precedence over the inmates’ gender identity.
“This is a case-by-case analysis, therefore specifics can’t be provided,” Schwartz said.
Congress passed the Prison Rape Elimination Act in 2003 with a goal of ending sexual assault and abuse behind bars — something that transgender inmates are dramatically more at risk of.
The National Inmate Survey, released by the U.S. Bureau of Justice Statistics in 2014, found that 39.9 percent of transgender prisoners at state and federal prisons reported being sexually victimized by other prisoners or guards — a rate 10 times higher than for the general prison population.
A 2007 California study put the number even higher: Nearly 60 percent of transgender women housed in men’s prisons reported being sexually assaulted.
In Hawaii, no such study has been conducted. But the state’s latest PREA report, which logged 80 separate incidents of sexual abuse and harassment in 2014, showed that transgender inmates were involved in four out of 18 substantiated cases — as the victim in three and the perpetrator in one.
In March, a U.S. Justice Department issued a memorandum clarifying specific provisions in PREA guidelines aimed at protecting transgender inmates.
“Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing or programs based solely on their external genital anatomy violates the standard,” the memorandum said.
The memo was released in response to recent measures in statehouses across the country that limit protections for transgender people — including the controversial North Carolina law that bars transgender people from using public restrooms that match their gender identity.
Hawaii, meanwhile, has been moving in the opposite direction: In May 2015, the Legislature passed a bill allowing transgender residents to amend their birth certificates without having a “sex change” surgery.
A year before that, the Department of Public Safety adopted a new policy to bring the state’s eight prisons and jails — as well as the Saguaro Correctional Center, an Arizona prison where about 1,400 Hawaii prisoners are housed — into compliance with PREA.
The state has to comply with PREA to avoid forfeiting 5 percent of federal funds — totaling about $74,000 in 2015 — allocated for the operation of prisons and jails in Hawaii.
Under the policy, the department has to give “serious consideration” to safety concerns of transgender inmates before making housing assignments.
The policy also calls for giving transgender inmates the option to shower separately and limits cross-gender strip searches or pat-downs.
Schwartz says the policy has led to a number of inmates being housed at facilities opposite of their gender at birth in the past. For instance, the Women’s Community Correctional Center in Kailua housed two transgender women until recently — when both inmates were paroled.
Still, Rebecca Stotzer, an associate professor of social work at the University of Hawaii, says she finds it “suspicious” that the department has no transgender inmates currently housed at facilities corresponding to their gender identity.
“Statistically, that doesn’t seem highly probable,” said Stotzer, an expert on violence against transgender people. “But I couldn’t answer why. There hasn’t been much research in that regard.”
Stacia Ohira, a transgender woman who served time in prison several times in the 1980s and 1990s, says it might be that transgender women in Hawaii simply prefer staying in men’s prison.
In Hawaii, Ohira says, transgender women are treated with respect by other inmates — owing to the fact that “mahu,” a Hawaiian word for a person embodying both male and female characteristics, are valued in traditional Hawaiian culture.
“There’s been an attitude that we don’t have a problem with topics related to sexuality or gender identity — that we’re the Aloha State and we’re welcoming. But that’s not necessarily true.” Rebecca Stotzer, associate professor, University of Hawaii
“Back in the day when I was inside, they never asked about what you felt comfortable. They just put you in men’s prison and treat you like any other male inmates,” said Ohira, who now works as a substance abuse counselor and professional dog handler. “I can’t speak for other people, but I liked being in men’s prison. In Hawaii, they have so much respect and love for transgender people. Other inmates are extremely nice to you.”
To Stotzer, all this points to the fact that more research is needed to better understand the issue.
“There’s been an attitude that we don’t have a problem with topics related to sexuality or gender identity — that we’re the Aloha State and we’re welcoming,” Stotzer said. “But that’s not necessarily true; there’s not a lot of data backing that up.”
Tracy Ryan, executive director of Harm Reduction Hawaii, says state officials should be turning to the inmates themselves for the insight.
“They should gather a group of people who are transgender in the prison system and let them comment on what they think should be changed,” Ryan said.
But Ryan adds that the issue isn’t just about the prison system.
“My biggest issue is why so many (transgender people) are behind bars in the first place,” Ryan said, pointing out that transgender individuals report much higher rates of arrest and incarceration in Hawaii than the general population. “So the whole issue needs to be re-examined holistically.”