Jasmine Rose Jones is a woman. But for much of the last 23 years, she was incarcerated in a men’s facility, and she says she was subjected to rape, sexual assault and abuse, just because she is transgender.
Jones, who was released from prison in May 2020 and is now a legal assistant at the Transgender Gender-Variant & Intersex Justice Project in San Francisco, says she was repeatedly raped and sexually assaulted by male prisoners and abused by male correctional officers across multiple facilities throughout her multiple stints in custody.
At the time, Jones did not feel like she could report the assaults to corrections officers, for fear of retribution, including being thrown into solitary confinement. But she says she had told officers that she was transgender and feared for her safety.
She heard similar fears from other trans women serving with her.
“We lived with it,” she says. “We lived with the abuse.”
Jones is not alone.
As recently as last year, the vast majority of incarcerated trans people in America are still housed in facilities based on the sex they were assigned at birth, according to a 2020 investigation by NBC News.
This is despite robust evidence that trans women are at a significantly higher risk of abuse and assault than the general prison population, according to academic research and surveys of incarcerated trans people. And that is still the case nearly 30 years after a landmark Supreme Court decision in Farmer v Brennan that found deliberately failing to protect incarcerated trans people from abuse or violence behind bars qualifies as cruel and unusual punishment.
Activists say not much has changed. Now, they are working to change policies on both the federal and state level to allow trans prisoners to decide for themselves where they would feel safest being housed – or at least have their voice heard, even if prisons or independent decision-making boards still get to make the final call.
A 2007 study from the University of California, Irvine, found that incarcerated transgender people were 13 times more likely to be sexually assaulted than a random sample of incarcerated men. Fifty-nine percent of transgender prisoners reported having been sexually assaulted within a California correctional facility compared to just 4.4% of the incarcerated population as a whole.
“Transgender women are not safe behind bars, period,” says Rodrigo Heng-Lehtinen, the incoming executive director of the National Center for Transgender Equality (NCTE). “Nobody should be in danger just because they are in government custody.”
In 1994, the US Supreme Court ruled on Eighth Amendment grounds that failing to protect trans people in custody is unconstitutional because it qualifies as cruel and unusual punishment. Farmer v Brennan centered on the alleged prison rape of a trans woman, Dee Farmer. She says only a few days after a transfer to FCI Terre Haute, a federal prison in Terre Haute, Indiana, she was raped by a cellmate. Prior to her incarceration, she had been living as a transgender woman, and argued that that fact, coupled with what court documents called the “violent environment and a history of inmate assaults” at the Terre Haute facility, meant that officials deliberately failed to protect her from harm by placing her there.
“He just kept repeatedly punching me all over,” she remembers, voice strong but still emotional more than 30 years later. “He started kicking me and I saw a knife in his tennis shoe. And it scared me so bad that I just stopped resisting. And he threw me on the bed and raped me.”
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment,” wrote Justice David Souter in the court’s opinion. While a jury ultimately found for the defendants in her case, her win at the Supreme Court is still hailed as a victory.
Activists like Dee Farmer are still fighting to institute national and state-level policies that would require a facility to house transgender, nonbinary or intersex people in the facilities where they feel safest, which would often mean according to their gender identity.
“They should not feel that they have to settle for being assaulted or violence or being harassed or being abused,” she tells CNN. “Make it known that this is what is happening. Let your voice be heard.”
‘I never murdered anyone or anything like that’
Transgender people are disproportionately impacted by the criminal justice system to begin with, incarcerated at significantly higher rates than other groups.
According to the NTCE’s last national US Transgender Survey conducted in 2015, the rate of incarceration for transgender people was double that of the nation-wide rate of incarceration, and about 10 times higher for Black transgender women.
In many states, being transgender in public can lead to an arrest under so-called “Walking While Trans” laws: anti-loitering codes officially used to target sex workers, which in practice target primarily trans women of color regardless of whether they are sex workers, advocates say.
“I was certainly profiled” as a transgender woman on the street, says activist and transgender woman Bamby Salcedo. “It was always a thing. I would always be stopped for just walking to get groceries from the store.”
Salcedo says she was first incarcerated at age 19, shortly after she began her transition process, and spent the next 14 years in and out of prison and jail for a variety of drug charges and petty theft charges, which she says primarily entailed shoplifting makeup and food.
“I never murdered anyone or anything like that,” Salcedo says. “Back in the ’80s there weren’t any services related to us. So anything we needed we got from the street, from our sisters. Participating in the street economy was the only way for us to live and survive.”
Salcedo says the “inhumane” and “disgraceful” treatment of trans women in custody often starts immediately upon the intake process, a sentiment echoed by Jones and others.
“We are told to get undressed in front of many men” including both corrections officers and other male prisoners, Salcedo describes, which “automatically creates this sense of fear for many of us and this sense… that it’s ok to sexually harass us and oftentimes sexually assault us.”
Jones similarly spent a lot of time on the street as a teen, after becoming homeless when she says her mother kicked her out of the house after coming out as gay.
“The streets were my best friend. That’s where I learned to become who I am today,” Jones says.
But soon, for Jones too, life on the street turned to life behind bars.
Violence on the Inside
Once they are incarcerated, trans people are at significantly higher risk of violence. Trans prisoners are over nine times more likely than the prison average to be assaulted or abused by fellow prisoners, and over five times more likely to be assaulted or abused by facility staff, according to a national survey conducted by the National Center for Transgender Equality. According to the 2015 survey, within the year leading up to the survey, almost a quarter of transgender prisoners reported being physically assaulted by other people in custody or staff.
Salcedo describes being raped in custody by a man who held a razor blade against her neck. On other occasions, she says she was beaten by other prisoners, including one time being beaten with a four-by-four piece of wood.
“Every single day I was at least verbally attacked. Every single day,” she remembers.
Formerly incarcerated trans women say that abuse often comes at the hands of correctional officers.