Behind the Binary Bars: A Critique of Prison Placement Policies for Transgender, Non-Binary, and Gender Non-Conforming Prisoners

By Jessica Szuminski. Full Text. 

To help us more easily understand the world, society relies on binary concepts to create a sense of order: left or right, up or down, this or that. But when relying on binary concepts, the other available options often are neglected: not left or right, but forward; not up or down, but in the middle; not this or that, but both. In the same vein, prison housing in the United States is organized based on binary categories—men versus women—which leaves those who identify as anything but cisgender out of the categories. The struggles of transgender women wanting to be housed in women’s prisons and transgender men wanting to be housed in men’s prisons are rampant and well-documented. Less documented are the plights of non-binary and gender non-conforming inmates who do not have prison housing options available that match their gender identity. Gender is fluid and often exists on a spectrum, and this Note explains how the failure to accommodate this spectrum in prison systems wreaks avoidable consequences on those who cannot neatly categorize themselves as man or woman.

This Note begins by exploring the emerging prevalence of transgender, non-binary, gender non-conforming, and other diverse gender identities (TNGI identities) and summarizing how the American legal system accommodates—or fails to accommodate—these identities. Then this Note evaluates the United States prison system and how its systemic shortcomings and injustices, which include mass incarceration, racial disparities, and inhumane living conditions, unleash devastation on TNGI inmates’ mental health and physical safety. It next examines current placement policies for TNGI prisoners and criticizes their inability to offer these prisoners a housing option that does not assume a binary, noting how this failure constitutes a violation of the Eighth Amendment’s protection against cruel and unusual punishment. However, legal pursuit of these Eighth Amendment violations is unlikely to offer the relief that TNGI inmates deserve, and the long-term goals of more radical efforts such as prison abolition are likely unable to provide a swift dismantlement of the injustices plaguing all American prisoners. Instead, this Note proposes the need for legislative action to create specialized TNGI wings within existing prisons, relying on a multi-factor placement evaluation that emphasizes the inmate’s preference in determining which housing option they should be assigned to. Society acknowledges that people exist outside of and between male and female identities; it is time for the prison system to do the same.