Justice Department to Withdraw Protections for LGBTQ+ Inmates

The U.S. Department of Justice has announced a significant policy shift that will eliminate rules designed to protect LGBTQ+ individuals from sexual abuse in prisons. This decision has drawn sharp criticism from advocacy groups, who describe it as “reckless and dangerous,” warning that it may lead to increased assaults against vulnerable incarcerated populations.

A memo issued on October 24, 2023, stated that, “effective immediately,” prisons and jails are no longer accountable for violations of standards intended to safeguard LGBTQ+ individuals from harassment, abuse, and rape. The directive also instructs inspectors to cease auditing facilities for compliance with these protections. The Justice Department is currently in the process of revising existing regulations under the Prison Rape Elimination Act (PREA), a federal law aimed at reducing sexual violence in correctional facilities.

Impact of Policy Changes

PREA, which passed unanimously in 2003, mandates that incarcerated individuals be screened for their risk of sexual assault and that such assessments account for their LGBTQ+ status. The recent memo from Tammie Gregg, principal deputy director of the Bureau of Justice Assistance, indicates that these policy changes align with one of former President Donald Trump’s executive orders aimed at restricting transgender rights in correctional settings. This order, issued on Trump’s inauguration day, sought to bar transgender women from women’s housing in prisons and halted the provision of gender-affirming care for incarcerated transgender individuals.

According to the memo, revisions to PREA standards will allow for discriminatory practices, including how staff conduct searches and communicate with LGBTQ+ individuals. These changes will also affect protections against invasive examinations and ensure that investigations into sexual abuse consider whether a perpetrator was motivated by a victim’s LGBTQ+ status.

Linda McFarlane, the executive director of Just Detention International, stated that the proposed changes will exacerbate violence within prisons and jails, potentially placing both staff and incarcerated individuals in more perilous situations. “It will allow rapists to act with impunity,” McFarlane said, expressing concern that the loss of oversight mechanisms undermines the progress made over the past decade to combat sexual violence in correctional facilities.

Legal and Human Rights Concerns

Despite the recent memo, constitutional protections against cruel and unusual punishment remain in effect. Kara Janssen, an attorney representing transgender women in litigation against the Bureau of Prisons, condemned the policy shift. She argued that it creates an “incredibly dangerous situation” for inmates while placing facilities in a difficult position, as the federal government signals that compliance with existing laws is optional.

Janssen emphasized that facilities still bear the responsibility for the safety of incarcerated individuals. “When people are assaulted as a result of these changes, there is liability for these facilities,” she noted.

Shana Knizhnik, a senior staff attorney with the American Civil Liberties Union (ACLU)’s LGBTQ & HIV project, highlighted the challenges the memo poses for PREA monitors. She indicated that the directive complicates their work, warning that it sends a troubling message to those tasked with ensuring the safety of individuals in custody. “This gives more license to individuals to target trans, intersex, and other LGBTQ+ folks in carceral settings,” Knizhnik added.

As the Justice Department moves forward with plans to revise PREA standards, advocacy groups and legal experts continue to express their alarm over the potential ramifications for LGBTQ+ individuals in prisons. The outcome of these changes could significantly affect the safety and rights of one of the most marginalized populations within the correctional system.