Numerous questions remain, however, about the treatment of dozens of other trans inmates
Kanautica Zayre-Brown made history Thursday.
When the Department of Public Safety moved her from Warren Correctional Institution in Manson to Anson Correctional Institution in Polkton, she became the first transgender prisoner in North Carolina to be transferred from a prison designated for one gender to one designated for another.
What will become of the dozens of other transgender people now held in North Carolina’s prisons is, however, far from clear.
Though the Department of Public Safety agreed to transfer Zayre-Brown back in May, it set a deadline of Aug. 22 so that it could “continue researching and implementing best practices from the states that have transferred transgender women to female facilities.”
Asked this week what policy changes may be on the way or what “best practices” would be implemented, a spokesman for the department said he did not have any specifics.
“Prior to this transfer, the Department of Public Safety’s Division of Adult Correction and Juvenile Justice conducted a comprehensive review of relevant policies and procedures and provided focused training to administrators and staff on the management of transgender offenders,” Department of Public Safety spokesman John Bull said in a statement.
“The housing determination for any offender is based upon a variety of factors, including, but not limited to, the individual’s unique circumstances, safety considerations and other operational factors,” Bull said. “The Division [of Adult Correction and Juvenile Justice] remains committed to the appropriate housing and management of all incarcerated offenders, consistent with ensuring public safety.”
Last year the department approved guidelines for dealing with transgender prisoners, but Bull declined to comment on whether they were followed in Zayre-Brown’s case.
Zayre-Brown says she was denied health care related to her transition, made to wear men’s clothing and underwear, and that prison staff refused to acknowledge her as female or use her female name, which she legally changed.
Those guidelines are still in place, the department confirmed. Though they refer to “specific housing accommodations,” they do not directly address the possibility of transfer to a facility matching a prisoner’s gender identity or how it may be secured.
Until Thursday, Brown was in “segregation housing” at Warren Correctional Institution, according to her lawyer, Sneha Shah of the American Civil Liberties Union of North Carolina. It’s a restricted housing situation with heightened security measures, Shah said.
That might be a step up from being forced to sleep with dozens of male prisoners in an open dormitory or being placed in solitary confinement – the two extremes Zayre-Brown has faced as the state tried to decide how to resolve her case.
But it’s still unacceptable, Shah said.
“What they are doing right now is wholly inadequate in making sure they are treating people who are transgender in their custody fairly and equally,” Shah said.
It took years of petitioning, activism and ultimately the threat of a lawsuit from the ACLU to secure Zayre-Brown’s transfer.
After she was arrested in 2017 on charges of insurance fraud and obtaining property by false pretenses, Zayre-Brown was held in a series of all-male facilities. She was forced to sleep in groups of men, to use group showers and toilets with men.
Her treatment stripped her of her core identity and presented very real physical dangers, Shan said.
Many transgender people elect to forgo surgical procedures related to their transition. Zayre-Brown, 37, was assigned male at birth and began transitioning to female in 2010. She has had her breasts augmented and genitals altered as part of gender confirmation surgery. She and her husband feared she would raped, beaten or even killed while she was living in a series of male prisons, but their pleas for transfer were ignored until earlier this year.
Having secured Zayre-Brown’s transfer to Anson, which houses 1,000 women, the ACLU will work to make sure she is treated equitably there, Shah said.
“The first thing is, we’re going to continue to monitor that situation to make sure she is not treated differently when she’s transferred, including not being put in solitary confinement,” Shah said.
From there, Shah said, the ACLU will continue to work on behalf of transgender prisoners in similar situations.
“We’ve been contacted by many people who are incarcerated and trans and have been placed in a facility that doesn’t match their gender or they are denied health care while they are incarcerated because they are trans.”
Identity, policy and reality
There are currently a little over 36,000 people incarcerated in the North Carolina prison system.
Of those prisoners, the Department of Public Safety has identified 37 as transgender. Another 10 prisoners are currently “under review” but are not yet officially classified as transgender.
According to department guidelines, transgender status is determined “from screening of offenders at intake and upon transfer in accordance with [the Prison Rape Elimination Act of 2003], and subsequent medical examinations and behavioral health determinations of dysphoria.”
Gender dysphoria is not a mental illness. The American Psychiatric Association defines it as “a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify.”
More than 40 years of research into and treatment of transgender people experiencing dysphoria has led psychiatric and medical professionals to conclude the most effective course of treatment is gender transition — aligning one’s life socially and sometimes physically to better match their gender identity.
Federal guidelines require individual screening and evaluation of prisoners who are transgender, said Gillian Branstetter of the National Center for Transgender Equality.
But for a variety of reasons, Branstetter said, prison statistics on transgender people are unlikely to show the full picture. In reality, there are likely many more transgender people in prisons than is acknowledged — even by states which for years have been reforming their systems.
“You don’t know if public records are up to date, you don’t know if a person is trans and withholding it for their own safety, or if they are trans and haven’t been recognized as trans,” Branstetter said.
Changes in how transgender prisoners are evaluated or treated are sometimes characterized as “special treatment,” Branstetter said.
“It’s not,” she said. “It’s responding to the fact that they’re 10 times more likely [than the general population] to be sexually assaulted by other prisoners and five times more likely to be sexually assaulted by staff.”
In the most recent U.S. Transgender Survey, an estimated 40 percent of transgender prisoners reported a sexual assault in the previous year.
North Carolina’s guidelines for evaluation of transgender prisoners and their requests provide for “accommodations” that range from hormone therapy to gender-appropriate clothing, private showering “and/or specific housing considerations.”
Though the guidelines are silent on transfers like Zayre-Brown’s, Bull said transfers can be requested to be reviewed and decisions made on a case-by-case basis.
“In order to be transferred based on their gender identification, a transgender offender must request a transfer, which would be reviewed by the Division of Prisons’ Transgender Accommodation Review Committee,” Bull said.
A “Facility Transgender Accommodation Review Committee” (TARC) is described in the guidelines as a “multidisciplinary committee that includes representatives from psychiatry (as needed), behavioral health, primary care provider, nursing, administration (assistant facility heads for custody and operations/programs), unit manager, and the facility PREA Compliance Manager.”
The guidelines also describe a “Division Transgender Accommodation Review Committee (Division TARC)” that includes, at a minimum, the Health Services Medical Director, Chief of Psychiatry, Behavioral Health Director, Deputy Director of Health Services, Deputy Director of Auxiliary Services and the PREA Director.
The head of each prison designates TARC members, according to the guidelines, including a psychologist or other health services representative as committee chair.
But LGBTQ advocates in many states point to inconsistent treatment of transgender prisoners by such committees depending upon the prison, its staff and administration.
“A haphazard and inconsistent system for assessing and treating trans people leads to the situation we have now,” said Shah. “Which is the routine placement of trans women in men’s facilities, denial of health care and the overuse of solitary confinement in the name of protection. All of these practices in turn create negative health outcomes and place people who are transgender at a much greater risk of sexual violence and other physical violence.”
In Zayre-Brown’s case, Shah said, the system failed in that she was denied clothing and other items consistent with her gender identity, and for a time denied access to hormonal treatment and other necessary medical treatment.
When petitioning for proper accommodation she was not given time or space to shower alone, Shah said, and was placed first in solitary confinement and then transferred to a smaller men’s prison after requesting transfer to a women’s prison.
If that was the fate of a high-profile prisoner whose case was being followed closely, Branstetter said, it’s likely other transgender people are experiencing the same or worse across a large prison system with a variety of separate committees on the issue.
Other states are years ahead in this field and there are plenty of positive and negative examples from which to learn, Branstetter said.
“There are few people more vulnerable in society today than a transgender person in a prison,” Branstetter said. “It’s not merely that their identity is ignored or their safety is ignored but their very rights are ignored. We need to be able to see how the system works in order to be sure that isn’t happening.”