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LGBTI Laws and Policies

This web page focuses on laws and policies related to Lesbian, Gay, Bisexual, Transgender and Intersex persons in custodial settings. The resources highlighted below include recent and landmark court cases, policy development and example policies from correctional institutions, and policies specific to juveniles. For additional information, trainings and materials on the NIC Project go to: Lesbian, Gay, Bisexual, Transgender and Intersex Offenders.

Resources Guide

The following are a list of "top-shelf" resources that have been hand-picked by our library team around this topic. If you're wanting some additional research assistance on this topic, please contact our help desk. They have access to specialized databases and thousands of resources you won't find online. Click on a heading below to browse resources in that section.

Court Cases - 13 items(s)

Resources
MICHELLE-LAEL B. NORSWORTHY, Plaintiff, v. JEFFREY BEARD, et al. (2015). U.S. District Judge Jon Tigar ruled in San Francisco that refusing to pay for the surgery denied 51-year-old convicted killer Michelle-Lael Norsworthy (formerly Jeffrey Bryan Norsworthy) constitutionally adequate medical treatment. He issued an injunction compelling the state to provide the surgery, which could cost up to $100,000.
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Kosilek v. Spencer - Sex Reassignment Surgery in Prison. This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution. We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction (“DOC”) has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek (“Kosilek”). More precisely, we are faced with the question whether the DOC's choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment-a treatment which would give rise to new concerns related to safety and prison security.

After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment. We therefore reverse the district court's grant of injunctive relief, and we remand with instructions to dismiss the case.
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State of CA and Transgender Law Center reach historic settlement over trans prisoner health care. The California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals.
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Transgender inmate is first to be awarded individual compensation under Prison Rape Elimination Act. A Maryland administrative judge awarded $5,000 to a transgender state prison inmate, who alleged that guards kept her in solitary confinement for more than two months. AVA Journal, 2015. See Proposed Decision: http://freestatelegal.org/wp-content/uploads/2015/09/Brown-2015.08.17-Decision-of-Secretary-and-ALJ.pdf
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State to pay $80,000 to settle suit by transgender inmate. The state has agreed to pay $80,000 to settle a lawsuit by a transgender inmate from Rochester who alleged she was beaten by corrections officers at the Attica Correctional Facility.
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Know Your Rights: Laws, Court Decisions, and Advocacy Tips to Protect Transgender Prisoners (2014). "This guide identifies laws, court decisions, advocacy tips, and other resources that may be helpful for adult transgender prisoners. Each transgender person’s experience in prison and jail is different, in part because the conditions vary a great deal from one prison to another and change over time. However, the safety and health of every transgender prisoner in the United States is guaranteed by the U.S. Constitution no matter where the prisoner is held" (p. 2). Sections cover: the Prison Rape Elimination Act (PREA); safety and protection from violence; medical care; housing and administrative segregation; searches and privacy; safely preserving and enforcing your rights; and additional resources—legal and advocacy organizations, and links to useful documents.
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Federal appeals court reinstates prisoner’s sex-change lawsuit.. “The 4th U.S. Circuit Court of Appeals found that Ophelia Azriel De'lonta, born Michael Stokes, can argue that denying her the surgery violates the Eighth Amendment's prohibition against cruel and unusual punishment.”
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Patti Hammon Shaw, Plaintiff, v. District of Columbia, et.al.. A District of Columbia district court opinion regarding the treatment of Pattie Hammond Shaw, a transgendered female, upon her arrest and while she was detained. Eighth Amendment claims were granted in part and denied in part.
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Federal Judge Strikes State-Law Ban on Hormone Treatment for Transgendered Inmates. This news article reports on the unconstitutionality of a state law in Wisconsin, which banned transgender inmates from receiving hormone therapy.
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DAVID H. PICKUP, et. al. vs. EDMUND G. BROWN, JR., Governor of California. Reversing an order granting preliminary injunctive relief in Welch v. Brown, 13-15023, and affirming the denial of preliminary injunctive relief in Pickup v. Brown, 12-17681, the panel held that California Senate Bill 1172, which bans state-licensed mental health providers from engaging in “sexual orientation change efforts” with patients under 18 years of age, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights. The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review.
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Brandon vs. County of Richardson, Texas. The Nebraska Supreme Court unanimously holds that the Richardson County Sheriff is liable both for his failure to protect Brandon Teena and separately for his abusive treatment of him.
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Juveniles - 4 items(s)

Resources
A Quick Guide for LGBTI Policy Development for Youth Confinement Facilities (2012). “This Quick Guide will help agencies and facilities develop a comprehensive response to working with lesbian, gay, bisexual, transgender and intersex (LGBTI) youth. It is not meant to provide an answer to every question or an in-depth discussion of all issues that agencies face or that the LGBTI population faces while in custody. It provides an overview of the important issues that agencies should consider when working to house and treat LGBTI youth in a way that is safe and consistent with an agency’s mission, values, and security guidelines … This Quick Guide is organized chronologically according to the decisions an agency will have to make before and at the point when an LGBTI youth enters the system. These areas of focus include: Assessment of Agency Culture (as relates to LGBTI individuals); Assessment of Agency Staff and Administration Knowledge and Attitudes; Examination of Current Relevant Agency Norms; Development and Implementation Mechanisms; Development of Awareness of Current Legal Responsibilities; Foundational Issues; Intake Screening/Risk Assessment; Classification and Housing Placement; Medical and Mental Health Care; Information Management; Group Youth Management; Specific Safety and Privacy Concerns for Transgender and Intersex Youth; and Staff, Volunteer, and Contractor Training Requirements” (p. 1).
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The Legal Rights of Young People in State Custody: What Child Welfare and Juvenile Justice Professionals Need to Know When Working with LGBT Youth (2006). The legal rights of LGBT (lesbian, gay, bisexual, and transgender) youth are discussed through the use of scenarios that show professionals in child welfare and juvenile justice what they may experience working with this population. This paper is divided into four parts: the Constitutional right to safety-- in foster care and juvenile detention and correctional facilities; other constitutional rights—the right to equal protection, and First Amendment rights; state non-discrimination laws; and conclusion. “Agencies and facilities that provide care to youth in state custody must educate themselves on the needs of LGBT youth and the scope of their civil rights” (p. 11).
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Advances in Juvenile Justice Reform: LGBTQ Youth in the System. Two policies: Louisiana — New Orleans Juvenile Detention Center Sets New Policies to Protect LGBT Youth and New York — New York City Issues New Policies to Protect LGBTQ Youth, 2011.
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Legal Representation - 1 items(s)

Resources
Representing Transgender and Gender Nonconforming Clients. This PowerPoint presentation provides an overview of transgender youth and adults in the criminal legal system. It covers unique issues around language, gender identity and expression, rights at arrest, and advocacy in the courtroom. A case study and example policies are included. 2015.
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Policy - 21 items(s)

Resources
Policy Review and Development Guide: Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Custodial Settings, 2nd Edition (2014). "In the first edition of this guide, we aimed to reach out to correctional agencies in order to help them identify, address, and respond to abuse of LGBTI individuals through agency policies and procedures. We hoped to deepen the dialogue between staff and administrators as well as community leaders and criminal justice advocates about strategies to eliminate abuse of LGBTI individuals in custody. The second edition of this guide provides updated key information to correctional agencies about PREA’s impact on agency practice as it relates to LGBTI individuals in custody" (p. 1). This guide is made up of three chapters: introduction and overview—introduction, evolving terminology and definitions, core principles for understanding LGBTI individuals in custody, and emerging data on LGBTI individuals in custodial settings and the challenges they face; LGBTI youth under custodial supervision—the law, PREA standards, other governing principles (state human rights laws and professional codes of ethics), and elements of legally sound and effective policy and practice; and LGBTI adults under custodial supervision—the law, PREA standards, and elements of legally sound and effective policy and practice. Appendixes provide: glossary; case law digest; additional resources; webpages with sample policies; Issues to Watch: The Impact of Non-Custodial LGBTI Developments on Corrections; sample policies; and training matrices.
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California Is First State to Adopt Sex Reassignment Surgery Policy for Prisoners. Under the new policy, the state will cover mastectomies as well as operations to remove and reconstruct reproductive organs. But it will not cover services the state considers cosmetic, including breast implants or procedures or drugs for hair removal or hair growth. New York Times 2015.
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A Quick Guide for LGBTI Policy Development for Adult Prisons and Jails (2012). “This Quick Guide will help agencies and facilities develop a comprehensive response to working with lesbian, gay, bisexual, transgender and intersex (LGBTI) inmates. It is not meant to provide an answer to every question or an in-depth discussion of all issues that agencies face or that the LGBTI population faces while in custody. It provides an overview of the important issues that agencies should consider when working to house and treat LGBTI inmates in a way that is safe and consistent with an agency’s mission, values, and security guidelines … This Quick Guide is organized chronologically according to the decisions an agency will have to make before and at the point when an LGBTI individual enters the system. These areas of focus include: Assessment of Agency Culture (as relates to LGBTI individuals); Assessment of Agency Staff and Administration Knowledge and Attitudes; Examination of Current Relevant Agency Norms; Development and Implementation Mechanisms; Development of Awareness of Current Legal Responsibilities; Foundational Issues; Intake Screening/Risk Assessment; Classification and Housing Placement; Medical and Mental Health Care; Information Management; Group Inmate Management; Specific Safety and Privacy Concerns for Transgender and Intersex Inmates; and Staff, Volunteer, and Contractor Training Requirements” (p. 1).
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Ohio LGBTI Policy (2015). Ohio Department of Rehabilitation and Correction.

The purpose of this policy is to provide guidelines for the evaluation and placement of inmates who are identified as lesbian, gay, bisexual, transgender and intersex individuals.
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Lesbian, Gay, Bisexual, Transgender and Intersex, (L.G.B.T.I.) Training Program and Agency Policy (2013). This collection is comprised of a training program and an agency policy regarding the treatment of lesbian, gay, bisexual, transgender, and intersex inmates.

"Course Name: L.G.B.T. Awareness" by B. Galindez. "Cultural Diversity/Awareness is essential in terms of adapting to changes and the morphing of all human traits and values. Acceptance and / or tolerance are key elements when the pursuit of cohesion is the overall goal. Lesson Objectives: 1. Student will be able to identify alternate lifestyles; 2. Student will be able to identify alternative lifestyle definitions; 3. Student will be able to identify custodial issues regarding alternative lifestyle arrests; 4. Student will be able to identify Departmental Policy regarding Discrimination / Harassment; [and] 5. Student will become familiar with Lawrence vs. Texas" (p. 4). Included are a lesson plan, PowerPoint slides, pretest and key, handout, final exam and key, and a handout.

"Lesbian, Gay, Bisexual, Transgender and Intersex, (L.G.B.T.I.)", HCSO Policy # 413. “This Order provides guidelines for the Harris County Sheriff’s Office (HCSO) to follow in order to meet federal statutes and regulations, American Correctional Association (ACA) Standards, National Commission on Correctional Health Care (NCCHC) standards, Prison Rape Elimination Act (PREA), and other Texas standards, statutes, regulations, guidelines, directives, or requirements that: A. Facilitate the elimination of discrimination against; and B. Address the appropriate classification, housing and treatment of; and C. Provide for the specific safety, security and medical needs of Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) inmates in a humane and respectful manner while maintaining the safety, security and good order of all HCSO facilities; and D. Establish sanctions for any violation of this policy” (p. 1).
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Gender Identity Disorder: Health Care Services (2013). "It is the policy of the New York State Department of Corrections and Community Supervision to recognize that Gender Identity Disorder (GID) is a psychiatric diagnosis as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and that the Department will address offender health care needs consistent with this diagnosis" (p. 1). This policy explains how the Department will do this. Procedures cover: verifying or establishing the diagnosis; GID hormone therapy; and state-issue bras. Documents attached to this policy are: "Female to Male Hormone Therapy Consent Form"; "Male to Female Hormone Therapy Consent Form"; and "Bra Measuring Instructions and Sizing".
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Respectful Classification Practices with LGBTI Inmates [Lesson Plans] (2014). "Lesbian, gay, bisexual, transgender, intersex (LGBTI) and gender non-conforming inmates represent particularly vulnerable populations with unique medical, safety, and other needs. Though some of the concerns and vulnerabilities faced by these populations are similar, transgender and gender non-conforming inmates are distinct from gay, lesbian, and bisexual inmates in important respects. Basic principles of risk-based classification should be applied with LGBTI populations, accounting for unique characteristics that may affect their risk of victimization. For transgender inmates, this includes making individualized decisions regarding gender placement (i.e., whether the inmate will be housed in a facility for females or for males). Reception staff must have clear guidelines allowing for the consistent identification of LGBTI inmates and collecting key information relevant to individualized risk assessment. Like other important characteristics, an inmate’s sexual orientation or transgender status will not always be immediately obvious at reception, but can typically be identified with relatively simple procedures" (p. 1). This 60-minute training session explains how to improve the correctional intake and classification process for LGBTI inmates. Contents of this zip file include: "Respectful Classification Practices with LGBTI Inmates: Trainer’s Manual" comprised of the following four lessons—Why LGBTI Responsive Intake and Classification Matters, LGBTI Terminology, Implementing Promising Intake and Classification Practices, and Moving Forward; 14 "Myth or Truth" flash cards; and presentation slides.
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An LASD Guide: Transgender & Gender Non-Conforming Employees (2014). "This publication sets forth guidelines to address the needs of transgender and gender non-conforming employees and clarifies how the law should be implemented in situations where questions may arise about how to protect the legal rights or safety of all employees. These guidelines do not anticipate every situation that might occur with respect to transgender or gender non-conforming employees, and the needs of each employee must be assessed on a case-by-case basis. In all cases, the goal is to ensure the safety and comfort of transgender or gender non-conforming employees while maximizing the employee’s workplace integration and minimizing stigmatization of the employee" (p. 3). Sections of this guide cover: purpose; definitions; privacy; official records; names and pronouns; restroom accessibility; locker room accessibility; dress codes; transitioning to the job; sex-segregated job assignments; discrimination and harassment; additional resources; and Unit of Assignment (UOA) Transition Plan Guide—before the UOA transition begins, the day the transition will be made known to co-workers, and the first day of the employee's official workplace transition.
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Tribal Equity Toolkit 2.0: Tribal Resolutions and Codes to Support Two Spirit & LGBT Justice in Indian Country (2013). “Tribal laws reflect our values as a people, define our collective barriers, prioritize our issues, allocate public resources, and identify eligibility for conferred status and public benefits and services. This Toolkit identifies areas in which existing tribal laws may discriminate against Two Spirit /LGBT individuals. The Toolkit also gives tribal legislators a brief overview of legal and policy issues that impact the equal treatment of Two Spirit/LGBT community members, and offers sample resolution and code language for tribal lawmakers to consider adopting to maximize equality within their communities. The purpose of this Toolkit is to protect the most vulnerable among us by facilitating the development of tribal laws that ensure that Two Spirit/LGBT people have the same access and opportunities as other community members. By making simple adjustments to laws and policies— such as creating an inclusive definition of family, or extending criminal laws to address hate crimes based on sexual orientation and gender identity—tribal governments can exercise their sovereignty to better protect all of their tribal citizens” (p. 9). This toolkit is comprised of ten chapters: introduction about the toolkit; family—marriage, domestic partnerships and civil unions, and children (adoption, child custody and visitation for Two Spirit/LGBT parents, and child welfare); employment; housing, real property transactions, public accommodations, and public services; education; health care and end of life; bias-motivated (hate) crimes—criminal offenses with bias motive, prohibiting specific actions, enhanced penalties, and bias-motivated crime reporting and training; jury service; law enforcement and corrections—police conduct, prison/jail conditions, and a sample “Equality Protocol for Law Enforcement and Corrections”; and identity documents and name changes.
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Further Guidance Regarding the Care of Transgender Detainees. This memorandum provides further guidance regarding the placement and care of transgender adult detainees in the custody of U.S. Immigration and Customs Enforcement (ICE), Emforcement and Removal Operations (ERO). This guidance complements existing ICE detention standards and the requirements of the U.S. Department of Homeland Security (DHS).
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Gender Identity Disorder: Healthcare for Offenders with. “The purpose of this standard operating procedure (SOP) is to establish guidelines for the diagnosis, treatment, management, and placement of offenders diagnosed with gender identity disorder (GID) to ensure offender safety and access to appropriate and necessary medical and mental health treatment. This SOP defines the extent and general limits of healthcare services provided to offenders identified as meeting the criteria for diagnosis of GID as outlined within the most current Diagnostic and Statistical Manual of Mental Disorders (DSM)” (p. 3). General requirements cover: initial reporting; referral and placement of the offender; evaluation of the offender; evaluator findings, diagnosis, and reporting; Chief Psychologist's review of findings; Management and Treatment Committee (MTC) meeting; Administrative Review Committee (ARC) meeting; final approval of the Management and Placement Plan; implementation of this plan; moral and ethical treatment of offenders diagnosed with GID; and subsequent reviews and evaluations for GID.
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Interactions with Transgender, Intersex, and Gender Nonconforming (TIGN) Individuals.. This Chicago Police Department general order establishes policies for interactions with TIGN individuals regarding their safety. It also defines terms pertaining to processing and establishes procedures for processing TIGN individuals.
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LAPD Drops Transgender Pat-Downs, Eyes Separate Detention Space.. This news article, from April 2012, highlights the changes in LAPD policy in regards to treatment and facilities for transgender people.
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Philadelphia Police Department Transgender Policy. This directive establishes policies for interactions with transgender individuals to
provide for the safety of police officers and citizens, and for the protection of the
constitutional rights of citizens in all official interactions.
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Transgender Inmates Policy. Miami-Dade Corrections and Rehabilitation Department Transgender Inmates policy, December 28, 2009.
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Advances in Juvenile Justice Reform: LGBTQ Youth in the System. Two policies: Louisiana — New Orleans Juvenile Detention Center Sets New Policies to Protect LGBT Youth and New York — New York City Issues New Policies to Protect LGBTQ Youth, 2011.
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