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Prison Housing Policies for Transgender, Non-binary, Gender-non-conforming, and Intersex People: Restorative Ways to Address the Gender Binary in the United States Prison System

“[I]t was the end of the last quarter of 2019 where I was able to drop the lawsuit against the correctional officer who had sexually harmed me when I knew . . . that the carceral state is not the way for me to find healing . . . . I was not going to seek my transformation and restoration through this system.”

Each year, rhetoric and legislation attacking transgender, non-binary, gender non-conforming and intersex individuals seemingly grows louder. Many political institutions in the United States perpetuate and enable the oppression of these individuals, one of which is the United States prison system. In the quotation above, Dominique Morgan, the Executive Director of Black and Pink, a prison abolitionist organization, describes her process of coming to terms with the harms she experienced in prison as a transgender woman. Morgan, originally charged with murder, lived eighteen months in solitary confinement, six of those on death row.

This quotation from Morgan not only illustrates how the prison system failed to ensure her safety (as a person convicted of a crime), but it also expresses her reckoning with the failure of the justice system to provide her with a process through which she could heal (as someone who survived a crime). Morgan’s story represents just one of the dangers people face in prisons, especially the vulnerability often heightened for people historically marginalized by society.

Transgender, non-binary, gender-non-conforming, and intersex (“TNGI”) individuals experience violence, sexual assault, social stigmatization, and discrimination from society and, in particular, the United States prison system. Despite some efforts to make housing in prisons safer for TNGI people, the system still fails to protect them.

TNGI people face harms in prison that cisgender people do not because of the “hyper-gendered” structure of the prison system. For example, prison staff often misgender TNGI people, and prison housing policies regularly result in placing TNGI people in prisons
according to their sex at birth instead of their gender identity. In addition, TNGI people are ten times more likely to be sexually assaulted in prison than the general prison population.

This Comment seeks to center the experiences of TNGI people living in prisons to shed light on the harms they incur from the United States prison system. Because of the gendered structure of the prison system, TNGI people face additional harms that cisgender prisoners do not experience, and the reforms to prison housing policies have failed to fully address the root of the problem. Restorative justice, through mechanisms used in place of prisons as well as through values-based policymaking, can better account for TNGI people’s well-being by breaking away from the gender binary in prisons and focusing on the diversity of human experiences and methods of relationship-building.

Part I seeks to illuminate the experiences of TNGI people in the United States and, more specifically, in prison. I also introduce the current prison housing policies and practices in the United States. In Part II, I provide a preview of restorative justice, which will be combined with the theories in Part III to form the rest of the argument.

The first section of Part III introduces theories concerning the gendered structure of prisons and how this perpetuates the gender binary. I then expand upon these theories and apply them to the experiences of TNGI people in prison. Next, I explain how the theory of relational restorative justice can help move past the gender binary in prisons and create a more equitable response to wrong-doings. Last, I discuss the current movements concerning prison housing reform and explain why these are lacking.

John G. Sims *

* J.D., 2023, University of Richmond School of Law.