“DONNA LANGAN IS very worried. Langan is a transgender woman in an American prison. She is a direct beneficiary of federal anti-rape regulations finalized in 2012, as well as subsequent changes to Bureau of Prisons policy, which have made it possible for a small number of trans people locked up in federal facilities to be housed in accordance with their gender identity. In March 2016, after spending years struggling to stay safe in male facilities, Langan was transferred to Federal Medical Center Carswell, a federal prison located just outside of Fort Worth, Texas.
For Lagan and the other trans women locked up at Carswell, the new policies were a lifeline. They were allowed to escape the pervasive risks they faced in male custody, including sexual and physical assault from prisoners and guards; they frequently ended up in solitary confinement, either as punishment or, perversely, for “protection.”
According to the Bureau of Justice Statistics, more than one third of transgender people held in prisons and jails experience sexual violence, the highest reported of any demographic group studied; the new policies were meant to ease this burden.
Today, however, a Christian legal advocacy group with a growing national profile, called Alliance Defending Freedom, is working to undo the regulations and policies that helped Langan move to Carswell. Now she is at risk of being sent back into the male prison population.
“I had to learn to fight to not make my whole existence a living hell. I’m not trying to live that way again.”
“I had to learn to fight to not make my whole existence a living hell, even though it was to some extent,” said Langan, of her life before she was transferred to a women’s facility. “I’m not trying to live that way again.”
Langan’s status at Carswell was thrown into jeopardy by a lawsuit initially filed in February 2017 by a group of three cisgender women previously housed at the prison. The lawsuit, joined by Alliance Defending Freedom last April, seeks to reverse the policy that has made Langan’s new life possible.
This isn’t ADF’s first foray into attacking transgender rights. The organization, labeled by the Southern Poverty Law Center as a hate group, and its supporters have pushed several state-level “bathroom bills” — legislation that seeks to restrict transgender people’s rights to use restrooms that align with their gender identity, rather than their gender assigned at birth. In arguing for their clients in the Carswell case, ADF is drawing on the same logic utilized when promoting bathroom bills: recognizing trans people’s gender self-identifications puts cis people in danger.
ADF’s involvement in the Carswell lawsuit represents yet another front from which the group is endeavoring to roll back protections for LGBT people, at time when ADF has more support than ever within the Department of Justice. With many of the cisgender women who originally filed the lawsuit now transferred to a different facility, the case is now in settlement negotiations. Bureau of Prisons policy could not be changed overnight without the Justice Department violating federal law and risking another lawsuit, said LGBT advocates and attorneys interviewed by The Intercept, although some said such a move on the DOJ’s part would not have surprised them.
“Placement of transgender women in women’s facilities is exceedingly rare and where it does happen, it is often the result of years of advocacy by the individual prisoners and detainees,” said Chase Strangio, a staff attorney with the American Civil Liberty Union’s LGBT & AIDS Project, who has worked to oppose bathroom bill legislation and support incarcerated trans people. “Attacks on these placements by non-transgender women alleging harms by simply existing in space in proximity to women who are transgender are legally frivolous, but the message to the transgender individuals who are fighting so hard to survive is devastating.”
THE CASE HANGING over Donna Langan, Fleming v. United States, concerns policies that enable transgender prisoners to be housed according to their gender identity by mandating case-by-case evaluations and prohibiting placement determined solely on the basis of an individual’s external genitalia. The regulations were the result of a decadeslong bipartisan effort, initiated under President George W. Bush, to end the epidemic of sexual violence inside American prisons, jails, and detention centers. The effort culminated with the unanimous passage through Congress of the Prison Rape Elimination Act in 2003, which created a bipartisan commission to study and address prison sexual violence; it garnered support from such wide-ranging groups as the conservative Christian group Focus on the Family and the NAACP.
Historically, jails and prisons have almost always housed transgender individuals in accordance with their genitalia. “Because very few incarcerated transgender people had any way to access transition-related surgical treatment (even in cases where it would have been medically indicated), this has almost invariably meant transgender women being housed in men’s prisons, and transgender men being housed in women’s prisons,” Harper Jean Tobin, director of policy at the National Center for Transgender Equality, told The Intercept over email. “This automatic practice has contributed to the extremely high rates of sexual abuse of transgender prisoners.”
The final PREA standards, released in 2012 under President Barack Obama, sought to address the problem by requiring correctional agencies to evaluate transgender individuals for placement on a case-by-case basis and take into consideration the prisoner’s own sense of where they might be safest. The Bureau of Prisons subsequently developed internal regulations in accordance with the standards, including the creation of a Transgender Executive Council to help determine placement.
Over the last few years, conditions for incarcerated trans people in Bureau of Prisons custody, as well as some other jurisdictions, have improved somewhat, said Tobin, pointing to better housing policies and increased access to hormones. According to the Bureau of Prisons, as of December 2, 2017 there were 473 individuals in BOP custody who identified as transgender. The Fleming case could impact them all.
For Alliance Defending Freedom, American prisons’ moves to alleviate the risks for incarcerated transgender people are a response to a contrived crisis — contrived by the transgender people themselves.
DONNA LANGAN IS a former member of the Aryan Republican Army, who has been incarcerated on and off from the time she was 15. She is currently serving a life sentence without the possibility of parole for robbing two banks and assaulting federal officers, among other charges. (Langan acknowledges and is remorseful for her past, and says she no longer maintains racist beliefs.) The 59-year-old, who began taking hormones in March 2012, said that in men’s facilities, the threat of violence was “always there.”
“I had to constantly think every day about different survival strategies,” she said in a phone interview, a perpetual sense of fear she no longer has to live with now that she’s housed with women. At times, claimed Langan, prison staff forced her to share a cell with sex offenders, which made her feel particularly at risk. “You’re like, ‘I’m not trying to be a victim,’ yet if you’re too aggressive in defending yourself, you can get in trouble,” she said.
For the Alliance Defending Freedom, American prisons’ moves to alleviate the risks for incarcerated transgender people are a response to a contrived crisis — contrived by the transgender people themselves, and the prisons that accede to their gender identity. In the Fleming lawsuit, the word transgender appears in scare quotes and Langan and the other transgender women are referred to using male pronouns; the suit condemns federal prison authorities for harming the plaintiffs — the cisgender women — by accepting what ADF calls “gender-identity ideology.”
To Langan, ADF’s assault on transgender rights is more than an abstract affront: The Fleming lawsuit specifically names Langan, as well as several other transgender women locked up at Carswell, and alleges that they perpetrated acts of violence against the cisgender plaintiffs and other cisgender women. Langan adamantly denied to The Intercept that she has harmed anyone at Carswell. “I’ve never threatened anybody in this institution, period,” she said. “I’ve been investigated by all the little people here, and all their little claims have been investigated. If there was like one scintilla of truthfulness and seriousness [to these allegations], then I’d be locked up” — a reference to solitary confinement. The government concurred: In a brief filed over the summer, the authorities said they investigated the plaintiffs’ claims of experiencing harassment and harm at the hands of transgender prisoners, and found that these allegations were unsubstantiated.
Langan acknowledges that one of the transgender women named in the suit did violate prison rules, including exposing herself to a group of women. But the woman has since been moved into the Special Housing Unit for a disciplinary infraction, Langan said, which is what would occur with any other prisoner who violated the rules.
Trans people may be at greater risk than their cis peers of being victims — not perpetrators — of physical and sexual violence.
ADF’S FIGHT AGAINST transgender civil rights outside prison walls has had a direct impact on its efforts against incarcerated transgender people. Years before they joined the Fleming lawsuit, ADF drafted model legislation called the Student Physical Privacy Act, that would prohibit transgender children in public school from using the bathroom that matches their gender identity. This language has been taken up in legislative efforts across the country.
In May 2016, a former ADF staffer was among the litigators in the Texas Attorney General’s office when the state and 10 others filed lawsuit to block a Department of Education guidance explaining why transgender public school students should be able to use the restroom according to their gender identity. A few months later, federal Judge Reed O’Connor of the Northern District of Texas issued a preliminary injunction blocking the guidance.
Rhonda Fleming and two other Carswell detainees asked the court to extend the Texas injunction to federal prisons’ policy. That motion was subsequently severed from the Texas case as its own civil action, which is how the Fleming lawsuit was born as a separate case. Since Carswell is located in the Northern District of Texas, O’Connor is also presiding over the Fleming case.
The plaintiffs in both the Texas and Fleming lawsuits contend that transgender people pose a grave threat to women and girls, despite statistics indicating that trans people (especially those who are poor or people of color) may be at greater risk than their cis peers of being victims — not perpetrators — of physical and sexual violence.
In legal rulings dating as far back as 1991, courts have rejected the argument that sharing space with transgender individuals violates the safety or privacy of cisgender individuals. “The plaintiffs’ claims that the presence of other prisoners who were transgender violated their rights were highly doubtful to begin with, given existing case law,” said Tobin, of the National Center for Transgender Equality. “It is hard to see how they have any standing at all on such claims when they have been transferred to different facilities.”
Despite the weak legal arguments, the ADF has a significant advantage in its political reach. In an investigation of ADF published in November 2017 in The Nation, journalist Sarah Posner documented the group’s ideological history, its multifaceted attack on LGBTQ rights, and its close ties to the Trump administration. The connections and cooperation between ADF and Trump’s Department of Justice go right to the very top. Attorney General Jeff Sessions consulted with the organization when drafting a controversial memo on how to interpret religious liberty protections under federal law. When he spoke at an ADF event this summer, Sessions reportedly praised the group for its “important work.”
SPECULATION HAS SWIRLED for a month that a settlement in the Fleming case is imminent. One settlement rumored as a possibility would involve transgender people being housed separately from others. Both the ADF and the Department of Justice declined to comment on the Fleming case or the ongoing settlement negotiations. But the ADF attorney litigating the suit, Gary McCaleb, told the Dallas Morning News that he was “pretty confident” the Bureau of Prisons would change its transgender housing policy.
“We have a multitude of issues. But certainly you’re going to have to find a way to separate, either in space or time, men and women in the general population,” McCaleb stressed to the Morning News. “However it’s done is less our concern than ensuring the privacy of women in prisons is protected.”
None of the experts contacted by The Intercept were able to speculate on the ongoing settlement negotiations. They did, however, agree that if the Justice Department wished to settle the Fleming case by reversing the Bureau of Prisons’ transgender housing regulations, it would face significant legal hurdles to doing so.
“DOJ is legally bound by the PREA standards to make genuine case-by-case decisions,” said Tobin. “Reopening the PREA rules would be a terrible and extremely controversial policy and legal decision, given the extraordinarily thorough and bipartisan process that produced them and the many interests that were balanced in this comprehensive set of regulations.”
Amy Fettig, deputy director for ACLU’s National Prison Project, told The Intercept, “[PREA] regulations can be changed, but it requires a particular process under the Administrative Procedures Act.” She added, “If they fail to follow that process, they can be sued and courts can overturn the regulations.”
Under the current interpretations of the PREA standards, trans-specific housing units are prohibited unless “established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates” — but the aim of the Fleming lawsuit is to “protect” cisgender women, not vulnerable transgender prisoners.
“Since the day Sessions came in, he has prioritized attacks on transgender people.”
“It would not surprise me, however, if DOJ were willing to settle the case in a way that violates PREA,” Strangio told the Intercept. “Since the day Sessions came in, he has prioritized attacks on transgender people and used every available opportunity to roll back and compromise the explicit protections that exist in agency guidance, regulation, and enforcement.”
Strangio added that even without settling with ADF, the department could find ways to render the PREA standards almost meaningless. “With so few enforcement mechanisms within PREA, it is possible to simply continue the work of rubber-stamping audits without meaningful review of the systematic violence that prisoners and detainees remain subjected to in various carceral setting,” he said.
Back at Carswell, Langan hopes the Bureau of Prisons will approve her request for gender confirmation surgery, which would mean Langan would likely never be sent back to a men’s facility. In the meantime, she is keeping up the legal fight against a host of unsavory possibilities for settlement.
“Transgender prisoners are being reduced to second- or third-class citizens, and even nonpersons in this whole matter,” Langan pleaded in a motion submitted to the court in mid-December, after she heard the news about the possible settlement. “We cannot rely on the Federal Bureau of Prisons to protect our rights or defend policy that was meant to protect us when they are entering into secret negotiations to give away or deprive us of those same rights.””