Issues ongoing around transgender inmates in Idaho

BOISE — Jessika “Jessie” Stover, a transgender woman, spent nearly 30 years incarcerated in an Idaho men’s prison, quickly learning the repercussions of presenting herself as a woman.

Stover entered an Idaho prison in 1988 for a charge of lewd conduct with a child younger than 16. She was 18 years old at the time and had not yet come out publicly as a transgender person.

While laws and policies around the treatment of transgender inmates have changed over the years, Stover and the American Civil Liberties Union still urge the prisons to change policies regarding where those inmates are housed and what kind of medical treatment is provided.

The state of Idaho currently has 18 transgender inmates, all of whom identify as female but are housed in men’s prisons. Now 46, Stover, of Boise, was released from prison in December and will remain on parole for the rest of her life.

Stover was one of the first openly transgender inmates in Idaho and came out as transgender in 2003. She has filed multiple lawsuits after coming out regarding allegations of treatment for transgender people, sexual abuse and has advocated for transgender rights.

Public copies of the lawsuits outlined her complaints while incarcerated, including multiple incidents of sexual assault by other inmates, inmates “selling” her in exchange for money for prison commissary as a form of extortion, and harassment by guards. At least two of the lawsuits were settled outside of court.

Stover said she does not regret coming out as transgender.

“In 2003, I decided I was living a lie, I was angry and I wasn’t a happy person,” she said. “So I decided to just expose the fact that I was transgender. I came out and everything started falling into place.”

While she was no longer hiding her identity, Stover recognized the risk of her decision.

In 2014, the Bureau of Justice Statistics reported that an estimated 35 percent of transgender inmates held in prisons reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months or since admission, if less than 12 months. That puts transgender people at a rate that’s about eight times higher than the average state inmate’s risk of sexual abuse.

In 2014, IDOC had no reports of a transgender person being sexually assaulted nor any reports of transgender people sexually assaulting other inmates. The 2015 reports are still being collected and validated, according to IDOC.

EXISTING POLICIES

Ashley Dowell, IDOC Deputy Chief for the Division of Prisons, said when transgender inmates are admitted to a state prison, they are not required to disclose that they are transgender but may choose to disclose. If new inmates state they are transgender, prison staff moves forward from there with finding appropriate management plans.

In 2004, Stover went to prison officials to be “diagnosed” as having gender dysphoria.

IDOC’s policy manual defines this as a person “dissatisfied and sometimes seriously dysphoric with his or her own biological sex and desires to be considered and treated as a member of the opposite sex.” The manual goes on to state that the “condition” is a stable, nonviolent condition and not due to psychosis but it may accompany other mental disorders.

The IDOC policy around transgender inmates was adopted in 2002 after Linda Thompson, a transgender inmate, issued a lawsuit against the state in 2000. The policy has been reviewed and changed over the years.

Thompson claimed that IDOC staff, including former IMSI Warden Dave Paskett, refused to acknowledge that she was transsexual and refused to treat her for the gender dysphoria. Thompson cut off her own testicles as what she claimed was a direct result of IDOC refusing to acknowledge her transsexualism.

The existing policy states that any incarcerated person must be housed in a facility with inmates of the gender that matches the transgender person’s current genitalia. If an inmate has had sexual reassignment surgery, they may be housed in a facility with people of the gender their current genitalia matches.

Surgeries such as breast implants or breast removal do not qualify as a surgery that makes the person eligible to be housed in a facility with people who are not of the transgender person’s physical gender.

The policy states that a person diagnosed with gender dysphoria may be housed in the secure mental health unit at the Idaho Maximum Security Institution.

The behavioral health unit can house up to 227 inmates with a variety of mental health issues, not just those with gender dysphoria.

DIAGNOSING INMATES

Transgender inmates may submit a diagnosis before they are incarcerated — if they have been diagnosed — or request a clinician at the prison evaluate them.

The diagnosing psychologist, according to IDOC policy, must be a qualified gender dysphoria evaluator who is responsible for overseeing the delivery of all IDOC mental health services provided by IDOC.

Dowell said that when choosing appropriate action, IDOC also takes into consideration what stage of treatment a person may currently be undergoing before incarceration. Inmates are also consulted about what they believe their needs are, Dowell said.

To make a diagnosis, the inmate meets with a clinician, psychologist or psychiatrist who makes recommendations. Those recommendations are given to a Management Treatment Committee, Dowell said. The committee then reviews all of the documentation and determines if it’s an appropriate diagnosis and what the appropriate treatment plan should be. Treatment plans for transgender inmates include mental health needs, medical needs, dysphoria, housing options and placement.

Some people on the committee include a doctor, psychiatrists, prison administration, security staff and mental health staff. Those recommendations are then passed to the Administrative Review Committee.

The Administrative Review Committee includes people from prison administration and the Idaho Attorney General’s Office. After review, that committee may ask for more information or approve it. Ultimately, it must be approved by Idaho Department of Corrections Director Kevin Kempf, said Dowell.

A transgender person is an individual who has acquired the physical characteristics of the opposite sex or presents themselves in a way that does not correspond with their sex at birth. It does not mean they necessarily have had sexual reassignment surgery.

A 2016 Department of Justice report stated that when deciding whether to assign a transgender or intersex inmate to a facility or program for male or female inmates, “correctional officers must consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, giving serious consideration to the inmate’s own views.”

An “intersex” person is a general term used for a condition in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male.

HORMONE THERAPY

The State of Idaho is required to provide transgender inmates with hormone treatments if they have been diagnosed, including estrogen and testosterone blockers.

The issue was brought to light, and policy was implemented after two transgender inmates, Josephime Von Isaak and Jenniffer Ann Spencer, sued the state and were granted settlements after they were denied hormone therapy, according to the Associated Press. Both transgender inmates castrated themselves after being denied the therapy.

In 2000, Spencer castrated herself in an effort to rid her body of testosterone and when she survived the self-castration, prison doctors prescribed testosterone replacement therapy, refusing to give her the estrogen she wanted, according to AP reports. In 2007, a federal judge mandated the state provide Spencer with female hormone therapy.

Isaak also castrated herself in 2004 after the state failed to diagnose and treat her gender identity disorder, according to the claims. Even after the castration, she went without estrogen treatment and she then amputated the tip of her penis.

The acts of desperation were a feeling Stover was familiar with, as well.

At one point while incarcerated, Stover attempted to castrate herself in an effort to change her treatment plan.

“I continuously tried to get my hormones up and they wouldn’t up (the dose),” Stover said. “I went into a deep depression and attempted to castrate myself to get treatment to have sexual reassignment surgery.”

Dowell said there is no regulation or policy on how high of a hormone dosage a prison physician is allowed to prescribe and it is a decision made based upon the medical interest of that person by the prescriber.

“There isn’t an exact algorithm that is followed,” Dowell said. “The art of medicine can be challenging and takes into account many variables. While quite often these patients request higher doses of potentially dangerous medications, the medical providers constantly weigh the potential benefits with possible risks.”

But Stover felt that prison staff intentionally did not up her dosage because staff didn’t want her to become “too feminine.”

CIRCUMSTANCES TODAY

From 2010 to 2015, Stover was housed in a behavioral health unit at ISCI, which she said was a better location. While the behavioral health unit also houses mentally ill inmates, there are other transgender inmates in the unit she could be with.

There is a support group in the unit for transgender people that is led by a clinician.

The prisons look seriously at what the safest situation is for both transgender inmates and other inmates, Dowell said.

Some transgender inmates are also housed at the Idaho Correctional Institution in Orofino, Idaho Maximum Security Institution and the Idaho State Correctional Center.

HOUSING OPTIONS

In an ideal situation, Stover believes transgender inmates who identify as female should be housed in the women’s prison. She does acknowledge that for the safety of the existing female inmates at the prison, some transgender females may need to be housed in a separate unit at the women’s prison. Specifically, if they need to shower separately from the other women because they haven’t had gender reassignment surgery.

It would serve as a way where “we could be ourselves together,” said Stover, while still being treated as if they are women.

Stover claims that at one point while incarcerated, she was asked if she wanted to be housed in administrative segregation, but she declined.

Administrative segregation is a form of segregation that is used for inmates “who pose a threat to life, property, self, staff or other offenders or when an offender’s continued presence threatens the secure and orderly operation of the facility,” according to IDOC policy.

Stover said she had issues in childhood with being secluded and locked alone, so she feared prison segregation would cause her to have suicidal thoughts.

“Throughout my life I had suicidal attempts because of my (sexual identity) and not understanding it and how society viewed it back them,” she said.

She admits that being sexually abused as a child is part of what led her to prison. She believes that sex abuse followed her into adulthood, leading her to abuse children.

In 1988, she was sentenced to nine months to three years for lewd conduct with a child younger than 16 and was released in 1991. Then in 1992, she was again sentenced for the same charge and sentenced to 10 years to life in prison.

In January the U.S. Department of Justice released a report with recommendations regarding the use of restrictive housing.

Inmates who are LGBTI or whose appearance or manner does not conform to traditional gender expectations should not be placed in restrictive housing solely on the basis of such identification or status, according to the recommendations. But when the inmate faces a legitimate threat from other inmates, it is recommended that officials seek alternative housing, with conditions comparable to those of general population to the extent possible.

SENDING A MESSAGE

Jess McCafferty, outreach coordinator for the ACLU of Idaho, said the ACLU believes transgender inmates should be housed in the facilities for people of the gender they identify with. Because transgender inmates are housed in the behavioral health unit at a men’s prison, McCafferty said that sends the wrong message.

“I think the messages sent are that they are broken,” she said about transgender inmates. “They are not broken.”

Stover said there are pros and cons to living in the behavioral health unit. A “pro” is that she did feel safer living there than having to share a cell with a non-transgender inmate. There is an officer in the middle of the unit, making it a safer environment, she said.

A “con” included the way she said guards treat the transgender inmates.

“I was an advocate, I wrote lawsuits and helped change policies. In some aspects, I was a thorn in their side,” Stover said. “That entailed a lot of retaliation, harassment, aggravation.”

Dowell said IDOC’s “first and primary goal and mission is to make sure people are safe within our prisons.”

McCafferty said other benefits of living in a women’s prison would be access to feminine products. The commissary in the women’s prison sells items such as makeup that female inmates are permitted to wear if they purchase the makeup themselves. They are also allowed to style their hair in feminine ways.

These are items that allow the inmates to present themselves in a feminine way, McCafferty said.

The Prison Rape Elimination Act, commonly referred to as just PREA, outlines certain behaviors that are forbidden to prevent sexualization in prison. Some of those include the use of makeup on biologically male inmates.

There are regulations around male offenders displaying feminine appearances and female offenders displaying masculine appearances. Those include regulations around hairstyles, face makeup, shaping eyebrows, undergarments, jewelry and gender opposite clothing.

Currently, there is a federal PREA guideline and Idaho’s Prison Rape Elimination guidelines, which do have differences.

Dowell said the state is in the process of implementing the federal regulations.

It wasn’t until December 2015 that Idaho Gov. Butch Otter announced the state will comply with the federal Prison Rape Elimination Act and intends to comply with the regulations.

IDOC policies are not yet fully compliant with federal standards regarding transgender inmates, but officials say they are working to comply.

PREA

Examples of non-compliance Dowell offered include the following:

• PREA standards require a screening with several questions to determine if an inmate may be a potential victim, or potentially abusive. One specific question asks whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex or gender nonconforming. IDOC has not yet implemented the PREA approved screening process and intake staff instead uses information received to determine safe and appropriate placement, based upon vulnerability or inmate concern. If Idaho staff has been told about that inmate’s gender identity, it is factored into the decision that matches PREA standards.
• PREA mandates that transgender inmates must be given the opportunity to shower separately from other inmates. IDOC does provide that opportunity, but it is not included in the policy. Idaho prisons currently include showering locations in a transgender person’s treatment plan that was assigned to them by the committee at the time of their diagnosis of gender dysphoria.

Examples of compliance Dowell offered include the following:

• PREA standards state LGBTI inmates shall not be placed in dedicated facilities and IDOC says they currently are not.
• PREA federally mandates that transgender and intersex inmates shall not be searched or examined for the sole purpose of determining genital status. Idaho states they are currently not being searched for that purpose.

This article was originally published in the Idaho Press-Tribune. It is used here with permission.