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Donald Trump used an executive order on gender this week to gut a major federal law offering protections against the sky-high rate of sexual violence faced by the most vulnerable individuals inside the federal prison system.
On Monday, the president signed an order requiring the government only recognize a person’s gender as defined by whether their biological sex at birth is deemed male or female, effectively erasing transgender, nonbinary, and intersex people from federal law.
Buried in the fine print was a change to what the order called Part 115.41 of title 28, Code of Federal Regulations. That provision is better known by its more common name: the 2003 Prison Rape Elimination Act (PREA).
The legislation, passed under the Bush administration to combat the rampant sexual abuse in U.S. prisons, was later applied by the Obama and Biden administrations to protect transgender people. Trans people are one of the groups most at risk for becoming targets of sexual and physical violence.
PREA instituted new changes like preventing unnecessary, invasive searches of inmates’ genitals to determine gender; considering whether housing assignments would pose safety threats based on gender identity; and letting trans people use facilities, including bathrooms and housing, that matched their self-identified gender.
Under the new Trump order, federal prison officials, and PREA-compliant state corrective institutions applying for federal funding, will turn back the clock, housing detainees according to the order’s narrow, and medically incomplete, definition of birth sex. (It’s unclear, for example, how the Trump administration will treat people who are intersex, born with reproductive, genetic, hormonal, or sexual anatomy that defies traditional categories of male and female.)
“This puts them at a severely heightened risk of sexual assault and abuse by other incarcerated persons and prison staff,” the ACLU said in a statement.
Statistics show that the roughly 2,000 transgender people in federal custody face exceptional levels of violence, sexual and otherwise, while facing countless obstacles to being housed in prison wards that align with their gender identity.
More than one third of trans people in prisons and jails experience sexual violence, the highest reported level of any group, according to a 2018 report by the Bureau of Justice Statistics.
Moreover, the executive order’s ban on using federal funds for gender-affirming care will further isolate trans inmates. Those who were receiving such care on the outside will be cut off from their regular medical regime, potentially exposing them to painful physical or emotional changes. Those who seek such care on the inside, meanwhile, will be denied, potentially leaving them to struggle with gender dysphoria, the psychic difficulty of which sometimes pushes inmates to perform unsafe self-guided medical intervention attempts rather than wait for officials to approve real treatment.
LGBTQ+ advocates condemned the Trump decision, arguing the order seeks to paper over federal law and puts an already vulnerable population at even greater risk.
“Their appalling approach denies science and will make life immeasurably harder for intersex, nonbinary, and of course transgender people,” legal advocacy group Lambda Legal said in a statement after the order.
Such sweeping changes were expected under the Trump administration, though, which regularly demonized what it called “transgender insanity” on the campaign trail and criticized Kamala Harris for supporting gender-affirming care, even though under the Trump administration, some federal inmates accessed such interventions.
One of Trump’s most-aired attack ads against Harris ended with the statement: “Kamala is for they/them. President Trump is for you.”
The first Trump administration rolled back some of the Obama-era protections for trans prisoners, with federal prison authorities holding they must use “biological sex” to determine housing placement, though they left the door open for “rare cases” where an inmate might be placed based on other considerations. The Biden administration reversed these changes.
As The Independent has reported, the combination of a lack of gender-accurate housing and difficulties accessing gender-affirming medical care has subjected transgender inmates to extreme abuse.
Ashley Diamond, a transgender woman who was incarcerated multiple times in Georgia, told The Independent that when she asked prison authorities if there was safe housing for people like her, they asked if she could make a fist and fight, telling her to expect a battle.
“Back then, I was literally told, the state of Georgia literally told me, they’re going to make a man out of me. That was literally what I was told when I got there,” she told The Independent. “I’m wearing Hannah Montana pajamas, I have long hair, with breasts, and I’m in a men’s prison.”
She was sexually assaulted multiple times, housed in a male ward, and lost access to hormones in prison, causing devastating and lifelong health impacts.
“I was vomiting all the time. My breasts started shrinking up. My hips started shrinking up. My hair was not growing,” she said. “Like I was dying right in front of my eyes.”
In fact, the experience of Dee Farmer, the first trans person to bring a case to the U.S. Supreme Court, was what helped inspire PREA in the first place.
Farmer alleged prison officials knowingly put her in danger, after she was sexually assaulted during her time in a men’s prison ward. The high court agreed, finding that prison officials could be shown to be negligent for not protecting trans people.
Civil rights organizations have suggested they will challenge the gender executive order, though they’ll face a Trump administration likely stacked with officials with anti-LGBTQ+ views and records.
Attorney general nominee Pam Bondi opposed marriage equality, while Harmeet Dhillon, tapped to lead the Department of Justice’s civil rights division, has been involved in anti-trans lawsuits, including one from women suing to challenge California’s prison policy of housing inmates in wards that match their gender identity.
During his inaugural speech, Trump said, “As of today, it will henceforth be the official policy of the United States government that there are only two genders, male and female.”
Trump’s reinstated restrictions will likely mean more peril for trans people behind bars, according to experts.
“People will die,” Julie Abbate, national advocacy director at Just Detention International, told The Appeal. “It’s unconscionable that the President of the United States has issued this order. It’s just unconscionable in its cruelty.”
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