A new bill introduced by U.S. Senator Tom Cotton (R-Ark.) could prevent prisons from housing trans inmates according to their gender identity.
The bill would force the Bureau of Prisons (BOP) to make housing decisions based on “biological sex” and would coerce state prisons into doing the same by limiting funding eligibility if they assign housing by gender identity. Named the “Preventing Violence Against Female Inmates Act of 2022,” it was put forward in response to a leaked Department of Justice (DOJ) report about a proposed executive order from President Joe Biden that would require prisons to assign housing in alignment with an inmate’s gender identity.
“My bill will stop the president’s ill-conceived plan and keep men and women separated in federal prison,” said Cotton in a press release.
The Biden administration has sought to restore Obama-era protections that called on prisons to house inmates according to gender identity “when appropriate.” Although the language was vague, Obama’s policies created a pathway for trans inmates to be housed correctly, providing a better quality of life and reducing risk of harm. The Trump administration rescinded these protections in 2018 and stated that trans inmates could only be assigned by gender identity in “rare” cases.
Cotton’s bill aims to take the Trump-era policies a step further, however, by fully forbidding prisons to determine housing on the basis of gender identity.
In a statement to Xtra, Richard Saenz, a senior attorney at Lambda Legal, calls Cotton’s bill “wrong” and a “cruel attack on transgender people.
“The Constitution protects the rights of incarcerated people including transgender people and the federal Bureau of Prisons and state prisons and jails systems have a duty to keep people in their custody safe,” Saenz says. “We know that incarcerated transgender women are at risk of sexual assault, rape and violence when housed in men’s facilities.”
Incarcerated trans people experience abuse and neglect in many forms. Despite making up less than 1 percent of prison populations, more than 40 percent report being denied medically necessary care. Trans inmates are nine times more likely to be sexually assaulted by other inmates than the general incarcerated population, according to the 2015 U.S. Trans Survey from the National Center for Transgender Equality (NCTE).
Black trans communities are uniquely impacted by the U.S. prison system. Nearly 50 percent of Black trans people experience incarceration, and Black trans women are 10 times more likely to be sexually victimized behind bars.
Ashley Diamond, a Black trans woman, was reincarcerated in 2019 for leaving her state of Georgia to receive treatment for post-traumatic stress disorder in Florida, which was a technical parole violation. She made headlines after the DOJ filed a statement of interest in her case against the Georgia Department of Corrections (GDC) for failing to protect her from sexual assault and provide adequate health care. (She had filed and won a previous lawsuit against GDC in 2015 for similar conditions, which also led the DOJ to file a statement of interest in her favour.) Diamond remains incarcerated today.
In an email to Xtra, Gabriel Arkles, senior counsel at the Transgender Legal Defense and Education Fund’s (TLDEF), says Cotton’s bill is “scapegoating transgender women” and endangers them further. “Anyone concerned with violence against women should be worried about the staggering rate of sexual violence against transgender women in men’s prisons,” Arkles states.
Cotton has a long history of opposing LGBTQ2S+ rights, according to the politics transparency site On the Issues. Cotton supported the since-repealed Defense on Marriage Act (DOMA), which federally defined marriage as being between one man and one woman. He also co-sponsored the Marriage and Religious Freedom Act introduced to the Senate in 2013, which prohibits the federal government from discriminating against individuals or organizations who hold religious beliefs that only recognize marriages between a man and a woman.
Unsurprisingly, Cotton has received the lowest rating possible—a zero—on the annual congressional scorecard from the Human Rights Campaign (HRC).
It’s unclear if Cotton’s legislation has enough votes to pass in the Senate, which is currently divided 50-50 between Republicans and Democrats. But Ian Thompson, a senior legislative representative for the American Civil Liberties Union (ACLU), tells Xtra that the bill doesn’t change the fact that “trans people know who they are, and our government doesn’t know better.
“While we should address the factors that lead to trans people—particularly trans women of colour—becoming incarcerated in the first place, once someone is in government custody the government should both ensure who they are is respected and minimize the violence someone experiences while incarcerated,” he says in an email. “Multiple federal courts agree—including a recent decision in favor of the ACLU’s client Cristina Iglesias.
“This bill wouldn’t change that obligation,” Thompson adds. “It only seeks to perpetuate myths about transgender people and deny the reality of trans people’s existence.”
There are only 15 confirmed cases in the U.S. in which a trans inmate is currently being housed according to their gender identity, according to a 2020 report published by NBC News. Of the nearly 5,000 transgender state prisoners tracked across 45 states and Washington, D.C., just 13 trans women and two trans men were housed in alignment with their gender.