Rebecca L. Warren
Professor of Practice, UNT Dallas College of Law
ISSUE 12 | SPRING 2023 | GENDER & SEXUALITY |
I. Introduction
Monserrath Lopez, a transgender woman, was walking through a public park in her home country of Honduras, listening to music, when four masked men appeared and beat her unconscious.¹ After waking up several hours later in an unknown location, the same men beat her, sexually abused her, sheared off her hair with scissors, and threatened to kill her.² Fearing for her life, Monserrath spent the next three months making her way through Mexico to seek refuge in the United States.³
When Monserrath arrived at a Texas port of entry, she presented herself to the United States Border Patrol and requested asylum.⁴ After being held in isolation for four days, she was handcuffed, shackled, and transported to a men’s detention center in Texas, where she was held for six months.⁵ Throughout her detention, she was sexually assaulted and verbally harassed by male detainees.⁶ When she reported this, guards responded that the alternative was solitary confinement.⁷
II. The Issues
A. Transgender individuals face unique challenges.
A transgender person (also referred to as a gender nonconforming person) is one whose gender identity, gender expression or behavior does not conform social and cultural expectations based on the sex assigned at birth.⁸ A person’s sexual orientation cannot be assumed from their gender identity or expression and being transgender may or may not involve hormonal treatments or surgical procedures.⁹
Transgender individuals who experience distress or discomfort due to the difference between their gender identity and the sex assigned to them at birth may be diagnosed with gender dysphoria, a mental health disorder recognized by the American Psychiatric Association.¹⁰ Gender dysphoria can lead to other mental health challenges such as anxiety, depression, and post-traumatic stress disorder.¹¹ Being transgender, however, is not a mental health disorder.¹²
Transgender individuals are often marginalized in their communities and experience an increased risk of assault and other forms of abuse due to the social stigma associated with their nonconforming gender identity or expression.¹³ A transgendered person, more likely to face rejection from family and physical or sexual assault, may carry with them a lifetime of untreated trauma that can contribute to addiction and exacerbate mental health challenges.¹⁴ According to a 2015 survey of more than 27,700 transgender people, 40% reported attempting suicide, and 82% had considered suicide in their lifetime.¹⁵
In terms of educational experiences, 77% of transgender persons in the survey group reported negative experiences in grades kindergarten through twelfth grade (54% were verbally harassed, 24% were physically attacked, and 13% were victims of sexual violence), and 17% of the survey group reported leaving school completely between kindergarten and twelfth grade due to mistreatment.¹⁶ The United Nations Human Rights Commissioner describes the experience of trans people as being caught in a “spiral of exclusion” that often begins in childhood with bullying at school and rejection from family and later involves marginalization and stigmatization in their communities and denial of employment.¹⁷ Unable to enter the workforce, transgender individuals often end up homeless.¹⁸
Because of these challenges, transgender persons are characterized as a vulnerable group by not only human rights organizations but also United States government agencies.¹⁹ Transgender people are often victims of violent acts that are the manifestation of “deeply entrenched stigma and prejudice [and] irrational hatred… driven by an intention to punish those seen as defying gender norms.”²⁰ In fact, transgender people in the United States are four times more likely to be the victim of a crime when compared to people who express gender based on their sex assigned at birth (86.2 victimizations per 1000 compared to 21.7 victimizations per 1000).²¹
Facing social aggression and violent crime, as well as barriers to education, housing, and employment, many transgender persons live in fear and poverty.²² Ultimately, due to institutionalized oppression and increased rates of poverty, many transgendered persons face criminal charges and are over-represented in the criminal justice system.²³
B. Transgender individuals often experience significant trauma in detention.
“A trans person is murdered every three days in the world, with the majority of these murders occurring in Latin America.”²⁴ A transgender person’s decision to migrate is sometimes driven by a need for safety.²⁵ Historically, however, migrant detainees were unsafely housed based on their sex assigned at birth, which led to a high number of reports of sexual assault and other forms of mistreatment that disproportionately affected transgender women.²⁶ In response, the United States encouraged detention facilities to separate transgender women out of male holding cells to improve safety and reduce the number of sexual assault incidents.²⁷
This separation, however, led to the use of solitary confinement as the primary alternative.²⁸ While the United States issued updated guidance in 2015 for how to provide a safe environment for transgender detainees, there is still no standard set of procedures that must be followed housing transgender migrants.²⁹ For example, the 2015 guidance memo states that Enforcement and Removal Operations should consider facilities that “maintain a functioning Transgender Classification and Care Committee”; facilities that “operate a Protective Custody Unit (PCU) for transgender detainees”; or facilities that “demonstrate best practices in the care of . . . transgender . . . detainees . . . .”³⁰ Placement in these facilities is not required, however, and if it is not practicable, any facility may be chosen as long as the field director “ensures the facility can appropriately care for the individual.”³¹ The updated guidance also does not prohibit placing a transgender detainee in solitary confinement (labeled as “administrative segregation”) and states that it may be used as a last resort when no other temporary housing option exists.³²
Solitary confinement is generally not considered an appropriate way to ensure the protection of transgender persons.³³ In fact, international organizations and human rights experts have stated that prolonged solitary confinement may amount to cruel and inhumane treatment that would constitute a human rights violation due to the psychological harm it causes.³⁴ The Mandela rules, a set of policies published by the United Nations, regards solitary confinement for more than 15 consecutive days as a form of torture.³⁵
Currently, such practices are allowed in U.S. immigration detention facilities, as placement in a dedicated transgender unit or facility is not practicable or even possible.³⁶ The last remaining facility with a dedicated transgender unit transferred all transgender detainees to other facilities in 2020 after falling under scrutiny for inadequate medical treatment (including accusations that high blood pressure medications were refused).³⁷
The death of two transgender women while in U.S. immigration custody in recent years highlighted the unique circumstances faced by many transgender migrants³⁸ and nudged some policymakers to support alternatives to detention for transgender individuals.³⁹
III. The solutions
A. Detention is not the only option for many transgender migrants arriving to the U.S.
United States immigration law does not require the detention of all migrants who enter the United States without prior approval.⁴⁰ Under the Immigration and Nationality Act ("INA"), the Department of Homeland Security ("DHS") is required to detain certain individuals for criminal reasons such as aggravated felonies, membership in a terrorist organization, drug crimes, and other crimes involving “moral turpitude” or acts that are considered depraved or otherwise violate accepted standards).⁴¹ Migrants who are waiting for deportation must also be detained under most conditions.⁴²
In many cases, however, the DHS may decide whether to detain the migrant or opt for an alternative program such as supervised release while a deportation decision is pending.⁴³
It is unknown how many transgender detainees are currently in immigration custody in the United States, but U.S. Immigration and Customs Enforcement ("ICE") published a report that showed 124 total transgender migrants had been detained for the 2022 fiscal year, with 18 in custody as of September 26, 2022.⁴⁴ The report reveals that ICE facilities placed vulnerable persons in segregation (including transgender individuals as well as those with mental health disorders and those on suicide watch) for the first three quarters of fiscal year 2022 in 835 instances (for both disciplinary and non-disciplinary reasons).⁴⁵
The 2015 ICE guidance memo encouraged DHS field directors to exercise discretion when deciding whether a transgender individual should be detained if the person is not subject to mandatory detention.⁴⁶ Since 2004, ICE has provided alternatives to detention, such as technological tracking to supervise activities of non-detained migrants awaiting immigration hearings.⁴⁷
B. Transgender migrants may qualify for asylum in the United States.
Asylum is a form of protection that allows an individual to remain in the United States when the person has suffered persecution or fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion.⁴⁸ Transgender individuals have applied and qualified for asylum in the United States as a member of a particular social group since 2000, as seen in the case of Hernandez-Montiel v. INS from the 9th Circuit.⁴⁹
In that case, Hernandez-Montiel was a gay man with a feminine personality who began expressing himself as female at age 12 in his home country of Mexico.⁵⁰ He faced reprimands from family and school officials, death threats from parents of schoolmates, rape and sexual assault from police officers at age 14, and a knife attack from young men in his community that required hospitalization.⁵¹ He fled to the United States at age 15 in 1993, but was arrested and returned to Mexico, where he was enrolled in a conversion program to “cure” him of his gender orientation.⁵² He then made numerous attempts to seek refuge in the United States, and finally succeeded in applying for asylum in February of 1995.⁵³ While he was deemed credible by the courts, he was initially denied asylum.⁵⁴ After a number of appeals, the Ninth Circuit determined that he should be granted asylum because he should not be forced to change his “sexual orientation or identity,” a fundamental characteristic of his identity.⁵⁵
Many other transgender migrants have been granted asylum since the case of Hernandez-Montiel, including Monserrath Lopez, the transgender Honduran woman who was introduced at the beginning of this article.⁵⁶ Asylum is not the only form of protection for a transgender person entering the United States without permission.⁵⁷ As an alternative to asylum, an individual can apply for Withholding of Removal, which can allows the applicant to remain in the United States and work lawfully (though the person will not be able to qualify for a green card).⁵⁸ To qualify for withholding of removal, a transgender individual must show “that [it] is more likely than not that [they] will suffer future persecution” based on their status as a transgender person.⁵⁹
IV. Recommendations
Considering the lifelong trauma experienced by many transgender people and the abuse they face in detention when attempting to seek refuge in the United States, it is necessary to consider ways to improve the immigration and detention process in the interest of safety and human rights.
First, we must remember that immigration detention is civil detention and not criminal detention. While some enter the United States with criminal backgrounds that require mandatory detention, many have no criminal background or have only minor, non-felony convictions, and have fled to the United States in search of safety.
Because of the increased risk to transgender persons generally, ICE must exercise its discretion in the interest of the safety of the transgender individual and order supervised release where detention is not mandatory by law. Transgender detainees who are not required to be detained by law should be released from custody, enrolled in an alternate supervision program, and provided a list of legal resources to assist in applying for asylum or withholding of removal.
Second, where detention is mandatory, there should be a prohibition of solitary confinement for non-disciplinary reasons (such as separating a transgender woman from male cell mates). Immigration agencies must otherwise be required to follow the standards set forth in the 2015 guidance for transgender detainees. Further, the public must call for increased training of detention center staff and supervisors who supervise transgender individuals in order to increase recognition of the unique circumstances faced by transgender detainees and improve medical care. For example, a detainee who was receiving hormone therapy when taken into custody must have continued access to that therapy.
Finally, each of us should recognize and embrace our cultural shift toward the greater inclusion of transgender persons. While the United States has made progress in its embrace of LGBTQ rights in comparison to governments that criminalize gender nonconformity or turn a blind eye to hate crimes targeting transgender persons, there remains deeply entrenched stigma, discrimination, prejudice, and sometimes hatred in many communities. This influences not only who we elect and the policies we adopt, but also our own individual levels of acceptance and respect for those who are different from us. We must all recognize that those who do not conform to socially accepted—and expected—gender norms and express themselves in non-conforming ways are not inherently dangerous just because they are different from the majority.
V. Conclusion
Transgender persons from other countries often seek safety in the United States because of mistreatment, barriers to education and the workforce, and the poverty that results. They often arrive carrying the burden of a lifetime of trauma, which can lead to mental health issues and addiction. When immigration agents opt to place them in detention, they are often subject to further mistreatment. These circumstances often lead to human rights violations.
Because the United States identifies as a country that values human rights, we must end the detention of transgender migrants where it is not mandatory, improve standards for transgender migrants where detention is required, and support policies and practices that include transgender persons in our daily lives.
Suggested Citation: Rebecca L. Warren, Issues Faced by Transgender Migrants in U.S. Detention Centers, ACCESSIBLE LAW, Spring 2023, at 32.
Sources:
[1] Adam Frankel, “Do You See How Much I’m Suffering here?” Abuse against Transgender Women in U.S. Immigration Detention, HUMAN RIGHTS WATCH, Mar. 23, 2016, at iii, https://www.hrw.org/sites/default/files/report_pdf/us0316_web.pdf.
[3] Id.
[4] Id.
[7] Id. at iii–iv.
[8] Mayo Clinic Staff, Transgender Facts, MAYO CLINIC (July 23, 2021), https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/transgender-facts/art-20266812.
[9] Id.
[10] A glossary: Defining Transgender Terms, MONITOR ON PSYCHOLOGY, Sept. 2018, at 32, https://www.apa.org/monitor/2018/09/ce-corner-glossary.
[11] Transgender: Ensuring Mental Health, CLEVELAND CLINIC, https://my.clevelandclinic.org/health/articles/21963-transgender-ensuring-mental-health, (last reviewed Oct. 10, 2021).
[13] See Jaclyn M. White Hughto, Sari L. Reisner, & John E. Pachankis, Transgender Stigma and Health: A Citical Review of Stigma Determinants, Mechanisms, and Interventions, SOC. SCI. & MED., (forthcoming Dec. 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4689648/.
[14] Id; see also Susannah Hermaszewska, Angela Sweeney, B. Camminga, Riley Botelle, Kate Eilliott, & Jacqueline Sin, Lived experiences of transgender forced migrants and their mental health outcomes: systematic review and meta-ethnography, BJPSYCH OPEN, May 2022, at 1, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9169499/.
[15] SANDY E. JAMES, JODY L. HERMAN, SUSAN RANKIN, MARA KEISLING, LISA MOTTET & MA'AYAN ANAFI, NAT'L CTR. FOR TRANSGENDER EQUAL., THE REPORT OF THE 2015 U.S. TRANSGENDER SURVEY (Dec. 2016), https://calculators.io/national-transgender-discrimination-survey/.
[16] Id.
[17] The struggle of trans and gender-diverse persons, U.N. HIGH COMM'R FOR REFUGEES, https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity/struggle-trans-and-gender-diverse-persons (last visited Jan. 28, 2023).
[18] Id.
[19] Id; see Vulnerable Populations: Transgender Care Program, U.S. IMMIGR. AND CUSTOMS ENFORCEMENT: ENFORCEMENT AND REMOVAL OPERATIONS (June 2021), https://www.ice.gov/doclib/detention/transgenderInfographic.pdf.
[20] See supra note 17.
[21] Press Release, Rachel Dowd, UCLA School of Law Williams Institute, Transgender people over four times more likely than cisgender people to be victims of violent crime (Mar. 23, 2021), https://williamsinstitute.law.ucla.edu/press/ncvs-trans-press-release/.
[22] Quick Guide to the Criminalization of Transgender and Gender Non-Conforming People, TRANSFORMATIVE JUST. L. PROJECT ILL., https://chartreuse-roadrunner-rpsl.squarespace.com/s/Quick-Guide-to-the-Criminalization-of-Trans-People.pdf (last visited Jan. 28, 2023).
[23] Id.
[24] Laura P. Minero, Sergio Domínguez Jr., Stephanie L. Budge & Bamby Salcedo, Latinx trans immigrants’ survival of torture in U.S. detention: A qualitative investigation of the psychological impact of abuse and mistreatment, 23 INT'L J. TRANSGENDER HEALTH 36, 36 (2022), https://www.tandfonline.com/doi/pdf/10.1080/26895269.2021.1938779.
[25] Id; see also Kristen A. Gonzalez, Roberto L. Abreu, Cristalís Capielo Rosario, Jasmine M. Koech, Gabriel M. Lockett & Louis Lindley, “A center for trans women where they help you”: Resource needs of the immigrant Latinx transgender community, 23 INT'L J. TRANSGENDER HEALTH 60, 60 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8986257/.
[26] Hermaszewska et al., supra note 14 , at 2.
[27] Id.
[28] Id.
[29] Memorandum from Thomas Homan, Exec. Assoc. Dir., U.S. Immigrations and Customs Enf’t, to Assistant Dirs., Deputy Assistant Dirs., Field Office Dirs., Deputy Field Office Dirs., Assistant Field Office Dirs. & ICE Health Serv. Corps, U.S. Immigrations and Customs Enf’t on Further Guidance Regarding the Care of Transgender Detainees (June 19, 2015), https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf [hereinafter Guidance Memo].
[33]See U.N. High Comm’r for Refugees, Guidelines on International Protection No. 9, at 7 & n.51 (Oct. 23, 2012), http://www.unhcr.org/50ae466f9.pdf.
[34] Press Release, Special Procedures, United Nations Human Rights Office of the High Comm’r, U.S.: prolonged solitary confinement amounts to psychological torture, says UN expert (Feb. 28, 2020), https://www.ohchr.org/en/press-releases/2020/02/united-states-prolonged-solitary-confinement-amounts-psychological-torture.
[35] Id; accord G.A. Res. 70/175, the Nelson Mandela Rules, at 16, 17 (Jan. 8, 2016), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/443/41/PDF/N1544341.pdf?OpenElement.
[36] See Mica Rosenberg & Ted Hesson, Exclusive: Serious health care lapses found in U.S. detention center housing transgender migrants, REUTERS: U.S. NEWS (Mar. 2, 2022 12:44 PM), https://www.reuters.com/article/us-usa-immigration-transgender-exclusive/exclusive-serious-health-care-lapses-found-in-u-s-detention-center-housing-transgender-migrants-idUSKBN20P1OT.
[37] Id.
[38] See Tina Vásquez, Organizers say ending trans detention is a matter of life and death, PRISM: IMMIGRATION (June 28, 2022), https://prismreports.org/2022/06/28/ending-trans-detention-life-or-death/.
[39] See Press Release, Congressman Mike Quigley Representing the 5th District of Ill., Quigley Advocates for Trans Immigrants During ICE Hearing (May 13, 2021), https://quigley.house.gov/media-center/press-releases/quigley-advocates-trans-immigrants-during-ice-hearing.
[40] See generally HILLEL SMITH, CONG. RESEARCH SERV., THE LAW OF IMMIGRATION DETENTION: A BRIEF INTRODUCTION, IF11343 (last updated Sept. 1, 2022), https://crsreports.congress.gov/product/pdf/IF/IF11343.
[43] Id (citing INA § 236(a)).
[44] U.S. IMMIGR. AND CUSTOMS ENFORCEMENT, FY 2022 DETENTION STATISTICS, found under Trans. Detainee Pop. FY22 YTD (2022), https://www.ice.gov/detain/detention-management (last updated Jan. 19, 2023).
[45] Id (found under Vulnerable & Special Population).
[46] Guidance Memo, supra note 29, at 1.
[47] Alternatives to Detention, ICE, https://www.ice.gov/features/atd (last updated Dec. 23, 2022).
[48] Asylum, U.S. CITIZENSHIP AND IMMIGR. SERVS., https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum (last updated Sept. 19, 2022).
[49] Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) (holding that sexual orientation and sexual identity can be the basis for establishing a particular social group for the purposes of granting asylum and trans people are members of a qualifying particular social group), overruled on other grounds by Thomas v. Gonzalez, 409 F.3d 1177 (9th Cir. 2005).
[50] Id. at 1087.
[51] Id. at 1088.
[54] Id.
[55] Id. at 1095.
[56] Frankel, supra note 1, at iv.
[57] Types of Asylum, U.N. HIGH COMM’R FOR REFUGEES: HELP, https://help.unhcr.org/usa/applying-for-asylum/types-of-asylum/ (last visited Feb. 3, 2023).
[58] Id.
[59] Id.
