Excerpted From: Laurel Anderson, Punishing the Innocent: How the Classification of Male-to-female Transgender Individuals in Immigration Detention Constitutes Illegal Punishment under the Fifth Amendment, 25 Berkeley Journal of Gender, Law & Justice 1 (Spring 2010) (241 Footnotes) (Full Document)


TransgenderLawChristina Madrazo, a male-to-female pre-operative transgender immigrant, was detained in Krome Detention Center in Miami, Florida awaiting an appeal of her asylum claim. She fled Mexico after she was violently attacked for being transgender. Madrazo was placed in solitary confinement at Krome because officials were unsure whether to house her with men or women. Solitary confinement was isolating and made her extremely vulnerable to attacks by prison guards. One of the guards, in charge of bringing her meals and watching over her safety, raped her on two separate occasions. The first time, the guard attacked Madrazo in her cell and tried to force her to perform oral sex on him. When she refused, he sodomized her until he heard another person approaching. Madrazo reported the rape, but the officer was still allowed to serve her food the next day. Later that night, he raped her a second time. Unfortunately, this tragic story is not uncommon; transgender detainees, particularly male-to-female transgender women, are at a high risk of sexual assault and harassment.

Although immigrant detainees are technically held in civil custody, there is an inherent inconsistency between their legal status and their detention conditions. Most are housed in jails and prisons, while others are held in prison-like conditions in detention centers without having been convicted of a crime. Detainees are often treated like prisoners: shackled, forced to wear jumpsuits, and permitted to visit with relatives only through glass. Despite their identification as women, most transgender detainees are housed with men. Abuse in male facilities is rampant, and male-to-female transgender women are often the targets. They experience harassment and sexual assault at rates much higher than the general population. For example, a recent study by the University of California, Irvine found that 59 percent of transgender prisoners in California reported being victims of sexual assault, compared to 4.4 percent of the general prison population.

In men's detention facilities, a strict hierarchy is enforced that rewards masculinity and aggression with power and punishes femininity and passivity with violence. An informal but highly enforced code of conduct requires men to “‘act tough, lift weights, and be willing to fight to settle grudges,’ or risk being labeled weak and subjected to beatings and rape.” Detainees and staff victimize other detainees who are perceived as weak or feminine. As one inmate explained, “Smaller, weaker, meeker individuals are usually targets. Meeker individuals tend to ‘act Gay’ is how it's described here and in turn invites [sic] assault . . . .” Transgender women in men's facilities immediately stand out due to their femininity. Consequently, they find themselves at the bottom of the hierarchy and become targets of sexual victimization and harassment from other inmates and guards.

This commentary focuses on the plight of male-to-female transgender immigrants in men's detention facilities. The term “transgender” signifies people who have a gender identity or expression that is different from the one associated with their assigned sex. A male-to-female transgender person, or a transgender woman, is a person who was deemed a man at birth but who currently identifies as a woman. This paper uses the term “transgender detainees” to refer to transgender women, who are the focus of this inquiry. Additionally, the term “detention facilities” is used as a general term meant to encompass all types of facilities--including prisons, jails, and detention centers--that detain immigrants for immigration purposes.

I argue that the detention policies of Immigration and Customs Enforcement (ICE)--when applied to transgender immigrants--create an environment that constitutes punishment in violation of the Due Process Clause. This note seeks to identify the efficacy of using a due process challenge to force ICE to make the reforms necessary to reduce the punitive nature of immigrant detention and protect the heath and safety of transgender detainees. I identify two necessary reforms: reworking the current gender classification system to reflect gender identity and limiting the use of administrative segregation as the primary means of providing detainee safety. I argue that a successful due process claim is possible to compel these reforms. Previous constitutional challenges to conditions of confinement brought by other groups serve as a litigation guide. Cases that define the constitutional rights of convicted prisoners can be utilized to define the rights of detainees as well as support a due process claim. Successful constitutional challenges brought in the context of juvenile immigrant detention provide strategies for shaping this claim.

In Part I, I will give a brief background of ways in which transgender immigrants end up in ICE detention. Part II will identify the problems caused by the current gender classification system and administrative segregation protocols. In Part III, I propose changes to these current practices that would increase the safety of transgender detainees and create accountability for the detention centers. Part IV will explore the possibility of bringing a constitutional challenge against detention centers to force ICE to implement these proposed changes. By examining the ways in which the courts have defined the proper conditions of confinement for a similar group, namely transgender prisoners, and by proposing several challenges to the current prison jurisprudence, I will provide a roadmap for a successful legal claim by transgender detainees. In fleshing out this roadmap, I look to the successes achieved by juvenile immigrant detainees and suggest that a transgender detainee challenge would benefit from highlighting the similarities between these two groups.

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Transgender detainees suffer horrific abuses in immigrant detention when they are housed in men's facilities. The common response to actual or threatened abuse of a detainee is to put the victim in administrative segregation. But segregation is an inadequate solution because it does not properly protect transgender immigrants. In many cases, segregation exposes detainees to further attacks. Thus, there is an urgent need for reform. A policy encouraging the use of alternative measures to detention that ensure an immigrant's presence at removal hearings is the ultimate goal. With many alternative measures demonstrating success rates in the ninetieth percentile, it is illogical that ICE is still using detention as a major form of absconsion prevention.

For those in detention, ICE should change its classification protocol to affirm the gender identities of its detainees instead of relying on genital-based classifications. This is not an easy change to make, but it would protect transgender detainees from conditions that amount to punishment. A change in gender classification procedures should reduce violence against transgender detainees while simultaneously affirming their gender identities. Administrative segregation is inadequate and harmful; thus, ICE should also end the use of segregation as the primary method of violence prevention. Policies that control the violence instead of isolating a particular victim would make detention safer for all immigrants.

A successful legal challenge to the current ICE policies would force them to make these changes or find other methods of ensuring the safety of transgender detainees. While a due process challenge is not the only way of convincing ICE to change its protocols, a successful case would have a monumental impact. A positive ruling that defines the constitutional protections for detainees and specifies violations within the current system in regards to transgender immigrants would ensure that these protections remain in place regardless of the administration or the political climate. Lobbying ICE through the political process to change its regulations would not have the same guarantee because there is no law preventing ICE from reverting to former policies.

A detainee challenge should incorporate similar cases brought by convicted criminals, but only to illustrate the baseline of protection afforded to detainees. Because current precedent does not afford many protections to convicted criminals, highlighting the distinction between the legal status of the two groups is essential. Linking the vulnerabilities of transgender immigrant detainees with those of juvenile immigrant detainees could bolster a constitutional claim and hopefully provide access to the protections afforded to juveniles. Comprehensive change to ICE protocols geared toward the protection of transgender immigrants could ultimately put an end to the type of violence suffered by Christina Madrazo.

J.D. candidate, 2011, at the University of California, Berkeley, School of Law.