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Deconstructing Trump’s Construction Plans

“We will get our people off of welfare and back to work rebuilding our country with American hands and American labor,” said President Trump, in his inaugural address, referring to his plans to invest in infrastructure spending. As with many of his proclamations, it is yet unclear what this means in policy and practice but it is worth looking at some of the possible implications for gender equity.

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Criminalizing Gender Diversity

What Jeff Sessions and Tom Price mean for the trans* community

 

“I have the right to exist in public space.” –Laverne Cox, on The Late Show with Stephen Colbert

The growing Trump Cabinet poses several concerns for gender equality and the recognition and support of gender diversity[i].  Many Americans are especially dismayed by the nomination of Cabinet members with a recorded history of anti-LGBTQ statements, business practices, and Congressional votes.  For gender-based criminal justice policies, such as hate crime laws and anti-transgender “bathroom bills,” the confirmations of Attorney General Jeff Sessions, III and Health & Human Services Secretary Tom Price have important implications.

Transgender people are disproportionately targeted for violent hate crimes.

The Williams Institute estimates that transgender individuals comprise approximately 0.6% of the U.S. population, yet gender identity bias is the cause of 2% of reported hate crime incidents.  Of the 24 hate-motivated homicides reported by the 2015 National Coalition of Anti-Violence Programs Report on Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected Communities, 16 involved transgender or gender non-conforming victims, 13 of which were trans women of color.  Trans women of color face especially high rates of harassment and violent victimization, not only from their fellow citizens, but from police officers, as well[ii]. While members of Congress, both Sessions and Price voted against the 2009 Hate Crimes Protection Act that expanded federal hate crime protections to include sexual orientation and gender identity, and allowed for the Department of Justice (DOJ) to intervene and assist in incidents where a state is either unable or unwilling to investigate.

During hearings and debate in the Senate leading up to the passage of the Act, then Senator Sessions shared that he did not think the problem of hate-motivated violence against the LGBTQ community was significant enough for federal government involvement.

That attitude indicates that as Attorney General he is unlikely to make enforcement of the law a priority, or to pursue prosecutions in the 30 states that fail to address gender identity in their hate crime statutes and the 5 states that have no hate crime laws.

Transgender and genderqueer individuals across the country must deal with several forms of harassment, bullying, and abuse simply because they fail to conform to heterocisnormative expectations regarding gender identity and presentation.

One of the primary locations of this harassment and abuse is public restrooms that are designated for a single sex.  The 2015 U.S. Trans Survey found that 12% of respondents had been verbally harassed, physically assaulted, or sexually harassed in a public restroom in the previous year.  Twenty-four percent had their presence in a restroom challenged or questioned, 9% had been denied access, and 59% reported avoiding public restrooms for fear of negative confrontations.

Several states are currently debating the passage of anti-transgender “bathroom bills” aimed at preventing transgender individuals from using public facilities that correspond with their gender identity.

According to the National Conference of State Legislatures, 14 states have introduced a “bathroom bill” in 2017.  While the specifics of each law vary, the intended social consequences are the same. Making it a criminal, and sometimes also civil, offense for a person to use a public restroom designated for a sex/gender not specified on their ID sends the message that transgender and non-binary persons are second-class citizens whose very existence in public places puts them at risk for victimization and criminalization.  Supporters of these bills perpetuate damaging and inaccurate myths about transgender people and violent crimes.  They contend that women and children must be protected from sexual predators, an argument that has long been used when portraying LGBTQ individuals as deviants and criminals[iii].  They create and distribute advertisements that promote the “stranger danger” myth about sex crimes and sex offenders in the U.S[iv].  Official crime statistics and scholarly research both show that the vast majority of sex crimes are committed by known persons, not strangers, and are just about as likely to occur in private places as in public spaces.

The Texas version of a bathroom bill, the Texas Privacy Act or SB6, would increase criminal penalties for individuals who commit crimes in public restrooms, and incur civil penalties upon schools and public agencies that allow individuals to use a facility “designated for the biological sex opposite to the person’s biological sex.” Like North Carolina’s infamous HB2, the bill unnecessarily targets transgender persons who haven’t had gender confirmation surgery and/or haven’t been able to change their legal gender. The choice to physically transition through surgery is a personal one, and not every transgender person wants or needs to take that step.

However, many transgender people who require confirmation surgery in order to align their body with their identity are unable to attain it because of the financial costs involved. A lack of guaranteed health insurance coverage for transgender individuals, and specifically for gender confirmation surgeries, is a significant factor.

Several insurance companies, including United HealthCare in Texas, failed to provide coverage for gender confirmation procedures until forced to do so by a Department of Health & Human Services (HHS) non-discrimination rule implemented in 2016.  A new HHS Secretary could repeal that policy, and many fear that Secretary Price will do just that.  Reversing the rule would allow insurance companies to refuse coverage based upon sex or gender identity, putting the physical well-being and safety of transgender and non-binary individuals across the country in jeopardy.

Some of the bathroom bills represent a backlash to the 2016 “Dear Colleague” letter from the DOJ and the Dept. of Education that was reversed by the Trump administration.  The letter explained that discriminating against transgender students and preventing them from using facilities that match their gender identity constituted sex discrimination under Title IX.  Twelve states responded by suing, resulting in a partial stay of the order in those states until litigation concluded.  Within 48 hours of being sworn-in, Attorney General Sessions’ DOJ withdrew the request for a partial stay and canceled oral arguments scheduled for February 17.  Sessions has gone on to overturn the federal directive and significantly roll back protections for transgender students. The protections were rescinded, reportedly over the objections of Education Secretary Betsy DeVos, effectively leaving decisions on the matter to states and schools, and paving the way for the 14 state laws already introduced.

In sum, if, and likely when, Secretary Price rescinds the non-discrimination rule, obtaining surgery and legal gender changes will become increasingly difficult, if not impossible, for thousands of transgender Americans.  This will open them up not only to the harassment that already occurs in public facilities, but to criminalization and possibly arrest, as well, that the DOJ is unlikely to prevent or oppose.

Our cultural understandings of gender and crime are heavily influenced by our laws and public policies, and vice versa[v]. When stigmatizing policies enter into public discourse, and messages are sent that demonize or denigrate a social group, hate crimes can and often do result.  There is recent evidence of this with the spike in hate crimes in Britain following Brexit, and in the U.S. following the 2016 Presidential election.  The passage of a bathroom bill will increase fear and anxiety for trans* people, and the inflammatory rhetoric regarding gender identity used by the bills’ proponents may embolden some to commit acts of hate-motivated violence against them.

— Jace L. Valcore, PhD, Asst. Professor of Criminal Justice at the University of Houston Downtown.  Follow them on Twitter @JaceLValcore

— Photo by Diego Saldana-Rojas / For WLRN

 

[i] Because of the social and legal tendency to equate the term gender with the study of cisgender women’s issues, and the term gender identity with trans* and non-binary persons, it must be emphasized that every human being performs gender and possesses an internal sense of gender identity.

[ii] Meyer, D. (2015). Violence Against Queer People. New Brunswick, New Jersey: Rutgers University Press.

[iii] Mogul, J. L., Ritchie, A. J., & Whitlock, K. (2011). Queer (In)justice: The criminalization of LGBT people in the United States. Boston, MA: Beacon Press.

[iv] Mancini, C. (2014). Sex Crime, Offenders & Society: A Critical Look at Sexual Offending and Policy. Durham, NC: Carolina Academic Press.

[v] Worthen, M.G.F. (2016). Sexual Deviance and Society: A Sociological Examination. New York, NY: Routledge.

 

The Making of a Removable Alien

On Tuesday (February 21), the Trump administration issued a pair of memos outlining a more aggressive stance on immigration enforcement.  These memos followed January 25 and January 30, 2017 executive orders related to immigration. Executive Order 13676 is titled “Border Security and Immigration Enforcement Improvements”, and the second, Executive Order 13769 is titled “Enhancing Public Safety in the Interior of the United States.” These actions have already had major implications for immigrant communities across the United States.  A lesser known aspect of the efforts are their dangerous implications for TransLatinas.

In 2013, the TransLatin@ Coalition published The TransVisible Report to document the social conditions of TransLatinas. For the report, the researchers surveyed one hundred and one TransLatinas living across the U.S. In the report, TransLatinas refers to adults that were assigned male at birth who migrated to the U.S. and identify as women. TransLatinas constitute a diverse group of people; while some were brought to the U.S. as children and developed their sense of gender identity in the U.S., others migrated as adults searching for a safe place to live, work, and thrive while honoring their sense of self.  When asked why they chose to migrate to the U.S., 61% reported that “running away from violence and seeking better economic opportunities” were top reasons for migrating. In addition, 99% of TransLatinas stated that having a legal status was “very important” and that they did not want to return to their country of birth.

However, obtaining legal status has proven to be a challenge for a community that lacks the financial means to pay for legal representation in the U.S. immigration system. Seventy percent of TransLatinas in the study did not have a driver’s license and 91% did not have a job that provided them with health insurance.  Without papers, most TransLatinas are relegated to the informal economy in order to make a living. Their working conditions are usually risky and their labor underpaid because their jobs are criminalized.

Poverty, undocumented status, and criminalized employment situate them as one of the most vulnerable populations under the current administration.

Executive order 13768 describes undocumented immigrants, including TransLatinas, not as victims of globalization momentarily unable to adjust their status, but as dangerous and removable aliens. The executive order reads, “many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.” As a result of this narrow and criminalizing lens, the orders seek to “make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States.”

 Indeed, some of these systems and resources were recently utilized when Immigration and Custom Enforcement (ICE) officers made 600 arrests across 11 states in the week following the signing of this executive order. The number of arrests will likely continue to rise as the Trump administration enforces this policy and punishes states that offer sanctuary to immigrants.  Executive order 13768 explicitly denies federal grants to and threatens enforcement against “jurisdictions that willfully refuse to comply” with the order. In essence, every state is being asked to use its law enforcement as a collaborating agency for mass deportations.

For states and cities, the price of seeing undocumented immigrants as humans seeking a better life and providing them shelter is the potential loss of Federal funds.

An unruly state will lose its allowance except when it comes to policing. Under this economic pressure, most states will comply with the executive order and the number of incarcerations will rise.

Although part of executive order 13767 is designed to “remove promptly those individuals whose legal claims to remain in the United States have been lawfully rejected, after any appropriate civil or criminal sanctions have been imposed.”

It is unlikely that “removal” will be a prompt endeavor.

In her New York Times article “Deluged Immigration Courts, Where Cases Stall for Years Begin to Buckle” Julia Preston, explains that immigration courts are “weighed down by a backlog of more than 520,000 cases.”  And [they] are “floundering, increasingly failing to deliver timely, fair decisions to people fighting deportation or asking for refugee [status], according to interviews with lawyers, judges and government officials. With too few judges, overworked clerks and an antiquated docket based on stacks of paper files, many of the 56 courts nationwide have become crippled by delays and bureaucratic breakdowns.” Ultimately, Preston anticipates that “the courts will be a major obstacle for President-elect Donald J. Trump and his plans to deport as many as three million immigrants he says have criminal records. Many of those deportations — at least hundreds of thousands — would have to be approved by immigration judges.”

What is likely to happen is that undocumented immigrants who are apprehended will be incarcerated indefinitely until their decision date arrives. Incarceration is emotionally, financially, and socially devastating for all detainees and their families. This is particularly true for families living below the poverty line. Yet, for TransLatinas incarceration has yet another horrific outcome.

TransLatinas are often detained in all male cells and/or locked away in solitary confinement.

While incarcerated with the male population, they are often raped or sexually harassed by prison personnel and other detainees.  And, when they are placed in solitary confinement, they suffer the isolating and damaging consequences of having no human contact.

These alarming and dehumanizing outcomes have thus far been normalized and even encouraged because the public is being asked to treat undocumented migrants as if they are not people.

What is needed in order to see that migrants are refugees and not aliens? Decision-makers need to comprehend that individuals migrate for many reasons – they may be pushed to migrate by economic despair, sexism and transphobia in their home countries, but are also often pulled to the US by demand for their labor and promises of a better life. Most of the time migrants are refugees seeking peace and prosperity but are often denied papers to access mainstream employment. What many don’t anticipate is that migrating marks the beginning and the end of their humanity. Through their engagement with underground economies they become the “removable aliens” “deserving” to be detained, arrested, separated from families, and violated in every possible way.  It is time to bring back humanity to our immigration system.

Karla M. Padrón is a Lecturer in the Department of Chicano and Latino Studies at the University of Minnesota

Photo by TransLatin@ Coalition

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Health reform and women: the road ahead

Repeal. Replace. Repair.

Whatever shape the next iteration of policy change takes in health, it will affect every American.  Health is an everyday experience, and the trials of accessing health care services and the importance of health insurance coverage touches every American life.

Another reality of health care in America is that it is experienced differently by women and men.  Sex differences in health care utilization are well documented. These differences are driven by a range of factors that may also influence how health care policies applied broadly affect men and women differently.

It’s increasingly apparent that impending changes to health care policy are certain to occur in some form, specifically altering the financing and organization of health care delivery shaped by the Affordable Care Act (ACA), also known as Obamacare.  Media reports describe how Obamacare repeal may affect everyone.  Yet the form these policy changes take matters greatly – and differently – for women and men across the country, and also – of course – for children and families. Below I outline briefly how repealing and/or replacing the ACA may affect women, especially reproductive-age women, in ways that are distinct and relevant.

 

Repeal

Full repeal of the ACA would have an impact on health insurance coverage, access to preventive care, and access to essential health care services, including maternity care.

Insurance coverage

In 2012, my School of Public Health colleagues Jean Abraham, Beth Virnig and I published a study showing that 25% of all reproductive-age women were uninsured at some point in 2009, the year before the ACA was signed into law. Implementation of the ACA provided additional health insurance options for women at or below 400% of the federal poverty level, by offering expanded access to coverage through state Medicaid programs, health insurance exchanges, and federal subsidies for purchasing coverage.  These new coverage options would be eliminated with repeal.  Women of color would be disproportionately affected by the loss of coverage options.

ACA repeal would also undo regulations that require health plans to charge the same premiums to men and women (women were previously charged much higher prices for coverage than men), to offer coverage to individuals with pre-existing health conditions (which may include things like a prior cesarean delivery), and eliminates lifetime limits on coverage and annual amounts that plans spend. All of this could add up to more expenses for women, under ACA repeal.

 

Preventive services and essential health benefits

Among those who were already insured before Obamacare passed, the law changed how health insurance worked for reproductive-age women by expanding access to preventive care without cost sharing. Starting in August 2012, all health plans covered the following preventive services for women without cost sharing:  annual well-woman visits; screening for gestational diabetes; human papillomavirus testing; screening and counseling for sexually-transmitted infections including HIV; contraceptive methods; breastfeeding support, supplies and counseling; and screening and counseling for interpersonal and domestic violence. Repeal of Obamacare may mean a return to out-of-pocket costs for these services. Professor June Carbone’s recent post to the Gender Policy Report analyzes the implications of the such changes in coverage for American fertility, especially among poorer women and Latinas.

Obamacare also requires that qualified health plans include certain services (such as maternity care) as essential health benefits, and repeal would remove the requirement that plans include the following ten benefit categories: (1) ambulatory patient services; (2) emergency services; (3) hospitalization; (4) maternity and newborn care; (5) mental health and substance use disorder services including behavioral health treatment; (6) prescription drugs; (7) rehabilitative and habilitative services and devices; (8) laboratory services; (9) preventive and wellness services and chronic disease management; and (10) pediatric services, including oral and vision care. This may spur a return to the pre-Obamacare days, when only 12% of individual health plans included maternity care, and such plans were substantially more costly.

 

Replace

The form that an Obamacare replacement may take is yet unknown.  Much of the effects of a replacement plan would depend on changes to the elements of the ACA described above in the section on “repeal.”  Changes may be made to modify currently-existing benefits or to make large-scale changes.

Replacement plans may make tweaks to ACA provisions, or revamp major aspects of the healthcare delivery system. For example, the ACA includes a number of provisions with specifically address care related to pregnancy and childbirth. State Medicaid programs finance nearly half of all births in the U.S., and the ACA includes additions to Medicaid such as coverage for prenatal smoking cessation support and for childbirth in licensed, freestanding birth centers.  Some of these may be retained in a replacement plan, but the broader question around replacement of Obamacare is whether there may be fundamental changes to the Medicaid program, such as block grants.

There are some lesser-known aspects of the ACA that have profound effects on reproductive-age women.  Obamacare includes grants to states to support home-visiting programs for pregnant women and new mothers, and also to provide services to women who develop postpartum depression. The ACA also established new workplace protections for breastfeeding mothers, requiring employers with 50 or more employees to provide their workers with a private place to express breastmilk and ample break time to do so.  It is quite unclear whether such provisions would be revised, updated, or even remembered when a replacement plan is drafted.

Others have highlighted key aspects of potential replacement plans, based on Republican ideas and proposals, but most do not account for the particular aspects of the law that disproportionately or solely affect women.

 

Repair

While it is an unlikely strategy, from a political perspective, there is a possibility that full-scale repeal and replacement of the ACA may not occur. Indeed, some GOP leaders have alluded to the possibility of “repair” of the ACA, with a focus on some of the persistent challenges that health care policymakers (and American families) have faced, from decades past to the present, including high out-of-pocket costs, variable quality of care, and limited access to health insurance and to health care services.

Many factors are at play in determining the path ahead, but whether the fate of the ACA is repeal, replace, or repair, the next steps in federal health policy reform will likely have enormous consequences for women.

 

— Katy B. Kozhimannil, PhD, MPA; University of Minnesota School of Public Health

Photo by Texas Heart Institute

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The Prison Rape Elimination Act and the Limits of Liberal Reform

In 1996, the suicide of a young Texas man named Rodney Hulin, Jr. in the wake of multiple sexual assaults partially spurred Congress to unanimously pass the 2003 Prison Rape Elimination Act (PREA). The purpose of the nation’s first federal civil law addressing sexual violence behind bars was to call for nationwide data collection on the problem of prisoner rape and federal grants to help states combat it within prisons, jails, police lockups, youth facilities, immigration detention facilities, and community corrections.

While PREA was developed with good intentions by the National Prison Rape Elimination Commission (NPREC) in concert with prisoner rights’ advocates from across the country, and has been lauded by the American Civil Liberties Union and Just Detention International, it falls far short of what is needed to protect all prisoners, especially women, people of color, transgender individuals, and disabled people.

The new presidential administration and Congress would do well to consider the benefits and shortcomings of PREA, and may have the impetus to do so with Jeff Sessions, an original co-sponsor of the legislation, now in the position of Attorney General. The pro-law enforcement “Blue Lives Matter” mandate under Sessions, however, is unlikely to include strengthening PREA’s enforcement provisions, investigating prison guards for rampant sexual violence against incarcerated people, or following through on progressive policing and prison reform.

Due to various Republican-led moves to delay and weaken PREA enforcement, it wasn’t until 2012 that the Department of Justice (DOJ) issued the final rule implementing the PREA standards that include protections for LGBT people, crisis services for survivors, and prisoner education on the right to be safe behind bars. Prisons are required to perform background checks on prospective staff, prevent juveniles from being housed with adult prisoners, provide external and anonymous channels for prisoners to report sexual abuse, and provide physical and mental health care to imprisoned survivors of sexual assault. PREA has caused a change in the way that prison rape is viewed by addressing not only forcible rape, but other forms of sexual abuse, whether perpetuated by prisoners or staff. Unfortunately, many of these standards (for example, standards that restrict cross-gender pat-down searches of female prisoners) will only be in full effect in 2017—a full 14 years after PREA was signed into law. In the meantime, rape continues unabated inside our nation’s correctional facilities.

The failure to implement PREA in ways that are consistent with NPREC’s initial recommendations has led to damaging results for Black and multiracial people [1], women of color [2], LGBTQ people, and disabled people who are more likely to be targeted for prison rape than white heterosexual men, nondisabled people, and cisgender people.

First, PREA’s enforcement provisions are virtually non-existent since compliance by corrections agencies is voluntary. The primary means by which PREA attempts to ensure compliance by the states is through a financial incentive. A state is at-risk of losing 5% of federal grant funding “for prison purposes” if it fails to certify that it is in full compliance with PREA. Additionally, as noted by the PREA Resource Center, there is no oversight with respect to a governor’s certification that their state is in compliance with PREA. Recent investigative reporting suggests that New Jersey’s prisons have a pervasive sexual abuse problem—and that officials look the other way when incarcerated people complain about it and that the state intentionally underreports its prevalence. Even factoring in sexual abuse charges filed against five corrections officers at the state’s only women’s prison last year and the more recent investigation into a correctional officer who was never charged for sexually abusing sixteen women for years, the department maintains its rate is low—well below the average of 4 percent of state and federal prisoners nationally. Meanwhile, the annual audit performed in compliance with PREA found the New Jersey corrections department met federal standards. New Jersey is not alone.

Second, the courts have allowed PREA to “become both sword and shield in the hands of detention officials” according to Professor of Law, Gabriel Arkles [3]. Since Congress never created a private right and remedy in a way that courts would recognize under Supreme Court precedent, many courts refuse to consider that PREA may be relevant to claims of incarcerated survivors of sexual abuse. This means that survivors can’t bring a lawsuit against individual correction officials or agencies that fail to comply with PREA standards. While courts disregard any favorable implications of PREA for survivors, “courts do entertain arguments from defendants who seek to use PREA to justify infringements on prisoners’ constitutional rights” [3].

PREA has provided an excuse for correctional staff to force unwanted penetrative exams on prisoners and to place more prisoners in solitary confinement. Courts have allowed prison officials to use PREA against prisoners in ways inconsistent with its legislative intent.

Courts have also interpreted PREA to limit incarcerated people’s access to the courts by first requiring that they exhaust all steps of an institution’s internal grievance system. This requirement further exacerbates the already serious barriers faced by survivors who want to bring their claims to court [3]. Incarcerated survivors of sexual assault often experience relentless intimidation, either by staff or other prisoners, and are often not believed because of their criminal histories. According to a 2012 DOJ report on sexual victimization in prison, incarcerated people who follow appropriate grievance procedures to report staff sexual misconduct faced staff retaliation and were punished 46.3 percent of the time.

Effectively turning the mandate of PREA on its head and shielding the perpetrators of state sanctioned sexual violence isn’t just limited to the courts. Transgender and gender non-conforming prisoners, in particular, have experienced unanticipated negative impacts from PREA, including being punished through new policies purportedly created to comply with PREA that punish consensual sex and forbid gender non-conforming behavior. PREA standards permit facilities to treat consensual sex as equivalent to sexual abuse and to prohibit sex of any kind between incarcerated people. PREA has given correctional authorities a potent weapon to selectively sanction incarcerated people for any sexual expression, including masturbation [5, 6]. This blanket prohibition against sex has resulted in discipline or criminal prosecution for prisoners who engage in consensual sex and has discouraged prisoners from reporting sexual violence. Transgender and gender non-conforming prisoners bear the brunt of these policies punishing gender and sexual expression [6].

In a recent Columbia Law School report, Chase Strangio, Staff Attorney with the ACLU, shares their experience representing trans and gender non-conforming prisoners: “In Idaho, for example, PREA has been used to restrict the gender expression of people in custody under the guise of ending sexual assault…I represented a transgender woman in a New York men’s prison who was disciplined after reporting a sexual assault perpetrated against her. The officials argued that her gender non-conformity was evidence that she had consented to the rape. Meanwhile, all corrections agencies continue to prohibit consensual sexual contact or touching of any kind.”

While PREA has effectively enforced penalties against prisoners for consensual sexual activity, there is no evidence that the new rules have reduced the gender-based and sexual violence against incarcerated people that is perpetuated most frequently by correctional staff. Yet, it is clear that the regulations have increased punishment of incarcerated people.

PREA has been a focal point of both mainstream feminist and trans politics. While passed with the aim of preventing sexual assault, according to Professor of Law Dean Spade, “abolitionist activists doing prisoner justice support work have pointed out that because some of the main tools the act uses are punishment tools, those tools have become just another part of the arsenal used by punishment systems to increase sentences, target prisoners of color and queer and trans prisoners, and expand imprisonment” [2]. Ultimately, individuals seeking to remedy prison conditions—whether policy-makers or advocates—should be aware of inadvertently strengthening the criminal punishment system. A case in point: prison reformers who have advocated for gender-responsive prisons and gender-specific rehabilitative programs for female-identified prisoners have unintentionally contributed to prison expansion.

The final rule issued by the Department of Justice to implement the PREA standards represents the start, not the end, of efforts to curb prison rape and sexual abuse.

Much more needs to be done to fully implement the standards and ensure meaningful and continual compliance monitoring. First, incarcerated people need legal rights to sue corrections agencies and officials, in particular, a private right of action, to enforce the PREA regulations [3]. Relatedly, reforms need to include repeal of the exhaustion requirement that, as mentioned above, limits incarcerated people’s access to the courts.

Second, the DOJ should amend and extend regulations and fight against efforts to weaken PREA compliance. Strong action will be needed to monitor compliance and impose penalties when needed.

Third, the DOJ should amend the PREA regulations to require prisons to eliminate bans on consensual sex among incarcerated people [4]. Relatedly, work needs to occur at all levels of government to implement all the policy recommendations forwarded in the A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV report.

If we take seriously the warning issued by prison abolitionists such as Dean Spade, liberal legal reforms need to be advanced while we continue to remember that prisons are not safe spaces for anyone.

— Lena Palacios,  Assistant Professor in the Department of Gender, Women & Sexuality Studies, University of Minnesota

— Photo by miss_millions

References:

  1. Buchanan, Kim Shayo. 2012. “Engendering Rape.” UCLA Law Review 59: 1630–1810.
  2. Buchanan, Kim Shayo. 2007. “Impunity: Sexual Abuse in Women’s Prisons.” Harvard Civil Rights-Civil Liberties Law Review 42: 45–557.
  3. Arkles, Gabriel. 2014. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.” New York University Journal of Legislation and Public Policy 17 (4): 801–834.
  4. Spade, Dean. 2015. Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law. Revised and expanded edition. Durham, N.C.: Duke University Press.
  5. Smith, Brenda. 2006. “Rethinking Prison Sex: Self-Expression and Safety.” Columbia Journal of Gender and the Law 15 (1): 185.
  6. Arkles, Gabriel. 2015. “Regulating Prison Sexual violence. (Prisoners’ Rights in the Modern Era).” Northeastern University Law Journal 7 (1): 69–123.
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Food Stamp Work Requirements and the Implications of Devolution

On January 23, 2017, Wisconsin governor Scott Walker announced a new pilot program to require the state’s food stamp recipients who have children to work 80 hours per month for those benefits.  The change would require approval from the Trump Administration, since federal policy currently prohibits states from imposing additional requirements on food stamp recipients.  Unlike the Obama administration, which utilized those policies to protect and expand access to this and other programs, President Trump has signaled his intention to weaken those guidelines or eliminate them completely.

Walker’s proposal, therefore, provides important insight into the likely implications of that approach for poor workers and their families.

Officially known as the Supplemental Nutrition Assistance Program, or SNAP, food stamps were created by the War on Poverty in 1964 to ease the long-term effects of poverty on children and to invest in their health and well-being. The program reaches millions of poor children and families and has been remarkably successful in reducing severe hunger in the U.S.  After Unemployment Insurance, SNAP is the most responsive federal program providing assistance during economic downturns.  The use of SNAP benefits tracks the poverty rate quite closely.  During the most recent recession, demand for food stamps and spending on them rose sharply but, as unemployment eased, both fell (and continue to fall) across the country.  The Center on Budget and Policy Priorities reports that SNAP kept over 15 million people out of poverty and deep poverty in 2012.  Part of the program’s success is due to its consistent national design structure that targets those in greatest need, implements safeguards that insure extremely low rates of error and fraud, and responds quickly to changes in the economy.

Walker’s proposal is premised on the widespread public misconception that most food stamp recipients are avoiding work.

In fact, 64% of SNAP recipients are children, elderly, or disabled people who are typically not expected to be working.  Another 15% are already required to work because they are able-bodied adults without dependents.  The Wisconsin Governor’s changes would target the 21% of participants who are caring for children and thus, under current policies, exempted from the work requirement.  Even within this group, however, 62% of SNAP households with children have at least one member working and, in 87% of those households, a family member has been employed at some point during the year.  Many of these family members work at extremely low wage jobs where their annual earnings leave them at or below 130% of the federal poverty line (the income eligibility requirement).

To date, the Walker administration has provided few details about how the new rules will work.  Policymakers and legislators have raised many questions.  For example, if a SNAP participant does not find work, will the state provide a job, or will that family lose their benefits? Given that 66% of families receiving SNAP benefits in Wisconsin are single parent, primarily female-headed, households, how will child care be provided? Will single parents be required to take jobs that require long travel times or overnight shifts?  If families lose benefits, how will the state insure that it penalizes only the parent and not the child? If a mother cooks a meal with food purchased using food stamps, is she not allowed to eat it?

In addition to targeting female-headed households, these cuts will likely exacerbate Wisconsin’s already near-worst in the nation levels of racial inequality.

This is not, as is widely believed, because non-whites are particularly dependent upon government assistance.  In fact, food stamp usage closely tracks poverty rates among all racial groups. Yet, since African Americans are heavily concentrated in Milwaukee and other cities with high levels of unemployment, they are overrepresented in SNAP when compared to the population as a whole.  Indeed, this is further evidence of the effectiveness of the program in targeting labor-market inefficiencies.  It also indicates that restricting access will increase the stark inequalities in poverty levels between Milwaukee and the rest of Wisconsin.

Walker has stated that his plans are designed to “increase the supply of available workers” at a time when, he claims, “the state of Wisconsin has a worker shortage.” One way to increase labor force participation is to increase incentives to work by raising wages.  The Walker administration has decidedly rejected that path.  Since 2011, it has passed a series of bills that have deeply wounded the state’s labor unions and it has refused to consider raising the statewide minimum wage.  Taking food stamps from families with children represents a punitive alternative, one that compromises the health of those families in the present and may damage the long-term health and development (and labor market prospects) of their children.

Walker calls these changes “a giant step forward” and likens them to the welfare reform policies that were implemented by former Wisconsin governor Tommy Thompson and became a model for the national changes implemented by President Bill Clinton in the 1990s.  Last fall, a federal district court halted a Wisconsin law passed in 2015 that required drug testing of SNAP beneficiaries.  Rather than appeal the decision, Walker sent a letter to then President-elect Trump asking for a waiver.  He has expressed confidence that the new work requirements will be approved and also proposed similar requirements for recipients of federal housing vouchers.

Given the Trump administration’s interest in devolving control to state governments, Walker’s proposals provide a vivid illustration of the actions states may take when given leeway to impose new restrictions and make new rules for federal programs.

Wisconsin is not the only state seeking to change the rules for federally administered safety net programs—in 2016, it was one of twelve states that signed a letter to the US Department of Agriculture requesting permission to drug test SNAP recipients. Recent Congressional proposals to transform Medicaid funding into block grants raise the specter of similar restrictions health care safety net protections from poor families.  The Walker administration has already signaled its intent to change Medicaid eligibility requirements, either through a new federal block grant program, or failing that, through requesting exemptions to federal Medicaid rules.

While in some policy domains state discretion may lead to innovation, we also know that the success of programs like Medicaid and SNAP historically has been linked to their nationally standardized, coherent and transparent best practices, uniformly administered and monitored across the states.

New proposals like this one, by imposing undue hardship on the most vulnerable of the poor, threaten to leave citizens of some US states unprotected from personal misfortune and economic downturn, unraveling our already strained national safety net.  The result is deepening inequality that is manifested not just as economic inequality, but also as gender and racial inequalities

 

— Jane Collins is Professor of Community & Environmental Sociology at the University of Wisconsin-Madison. She is author, most recently, with Victoria Mayer, of Both Hands Tied: Gender, Welfare Reform and the Race to the Bottom in the Low-Wage Labor Market (University of Chicago Press, 2010)

— Photo by Liz Y