Rehabilitation in Prison?

Educational Programs for Women Prisoners in 2014

The expansion in imprisonment rates in the U.S. since the 1970s is well known. Less well-reported, however, has been the way this expansion affected women. Although a small share of the prison population (7 percent), women’s imprisonment rates grew faster during the prison boom and have seen a slower decline since 2010. By 2015,  over 110,000 women were in prison nationwide—of which, nearly 50% were women of color.[1] Women have unique pathways into and out of prison: women behind bars are more likely to be parents, to have histories of drug use and family trauma, and to be raped while in prison.

Given all of these challenges, it is surprising that there is one area where women prisoners are less disadvantaged than men: educational status.

Paralleling trends in the general population, female prisoners are (slightly) more likely to have completed high school diploma and (much more rarely) college. Still, the vast majority of prisoners have few educational credentials. As of 2004, over 60 percent of state inmates reported that they had not made it past 11th grade.

Below, I analyze data from a new survey of prisoners collected in 2014 by the U.S. Department of Education’s National Center for Education Statistics’ Program for the International Assessment of Adult Competencies (PIAAC). These data give us an updated, and richer, portrait of prisoners’ educational history and current desires for services. Below, I show that women have gender-specific reasons for being pushed out of school before prison, and, once incarcerated, women are less likely to complete educational credentials behind bars.

Both women (and men) desire far more educational and vocational training than they are currently receiving.

In addition, almost no prisoners are participating in the advanced education programs (i.e. Bachelor’s degree) that have the biggest effects on reducing recidivism. Together, the results suggest that states could be doing much more to equip prisoners to succeed post-release, including expanding evidence-based educational programs and providing funding mechanisms like Pell grants to make college affordable for prisoners.

Let’s start with prisoners’ in-prison participation in formal academic education programs.[2] As shown in Figure 1, the PIAAC data show that the most common response was that prisoners had not been able to take any formal academic program since admission. This was particularly true for women—47 percent of women (compared to 41 percent of men) had not advanced academically during their current period of incarceration.[3] Among those that had completed education, the most common programs were high school or GED programs (with men finishing these programs at a higher rate than women).

The emphasis on remedial education and G.E.D. classes behind bars might explain women’s lower participation rates, as they are more likely to enter prison with such credentials. Alternatively, this might reflect more limited programming options in women’s facilities.

The number of inmates participating in higher education was vanishingly small. Under 10 percent of prisoners in men’s and women’s prisons had completed a certificate from a college or trade school. Even smaller percentages—roughly 3 percent—had completed an Associate’s degree or higher credential. These tiny numbers are dispiriting given research shows that higher education is particularly useful for finding work and staying out of prison post-release. In addition, such programming makes prison environments more humane, benefiting both inmates and prison staff.

 

As shown in Figure 2, these low participation rates are not due to a lack of desire—63 percent of both men and women behind bars reported that they would like to participate in a formal degree or certificate program. Yet less than half of that—21 percent of men and 28 percent of women—were currently enrolled in such activities at the time of the survey. Oddly, these results suggest the opposite gender trend as compared to the earlier results, with more women currently “studying for any kind of formal degree or certificate” but fewer reporting completion of academic credentials since admission. This might reflect women reporting participation in the kinds of soft-skills programs (which can come with a “certificate”) described below or gender differences in length of program engagement and/or completion rates.

In addition, the PIAAC data allows us to study why prisoners stopped their schooling prior to incarceration—in other words, why are prisoners’ educational trajectories so truncated? As displayed in Figure 3, the most common response for both men and women was that they wanted to work. Men were significantly more likely to report ending school because they were locked up (20 v. 12 percent) or expelled (9 vs. 5 percent), suggesting that men are much more likely to stop education due to criminalization. Women, in contrast, were more likely to be pulled out of education due to family and care-taking responsibilities, including illness or death of loved ones (11 percent) and pregnancy or other health issues (15 percent). These results echo the concerns of other scholars about the gendered barriers disadvantaged young people face in completing their education and the increasing criminalization of young people of color in schools.

Finally, academic programs do not represent the full range of education programs in prison. Most commonly, inmates participate in “soft-skills” training to prepare them for re-entry, including life-skills, job readiness, and vocational training. As shown in Figure 4, just under half of men and women behind bars have participated in reentry and vocational training programs since admission. In addition, classes specifically focused on parenting are especially common among women—25 percent of women (vs. 15 percent of men) reported participating in child-rearing classes since admission. However, these programs have a poor track record of improving outcomes for returning citizens.

Together, these findings suggest that men and women face many similarities in the dearth of supportive in-prison programming, a high level of forced disengagement from schooling early in life, and a desire for meaningful educational programs inside of prison. Not surprisingly, the starkest differences emerge in response to gendered care-taking responsibilities, with women more likely to quit school for family reasons and to be engaged in parenting classes behind bars. These issues will take substantial policy change to address, but we can start by reducing the incarceration rate and spending more on those who remain behind bars. In particular, prisons should offer the kinds of supportive services that improve prison environments and help prepare prisoners to return to their families and communities. The re-opening of Pell grants for prisoners at the end of President Obama’s second term in office was a promising step in the right direction. As groups (including those on the right) continue to campaign for President Trump to continue the momentum on criminal justice reform, education programs should be a core tenant of proposals to both reduce imprisonment rates and make conditions in prisons more humane.

 — Michelle S. Phelps, Departments of Sociology and Law, University of Minnesota

Acknowledgements:

Thank you to Ryan Larson for producing the graphics accompanying this post.

Photo by Matthias Müller

 

[1] Descriptions of “women’s” or “men’s” experiences are based on the gender designation of inmates’ facility. Transgender prisoners may be placed in gender-affirming or gender-contradictory facilities, depending on states’ policies.

[2] For details on the PIAAC question wording and how I create the outcome categories displayed in the figures, refer to the footnotes at The Society Pages.

[3] This difference is statistically significant at the 10% threshold. The PIAAC has less than 300 respondents from women’s prisons so differences must be substantively large to achieve statistical significance. Differences reflected in the text are statistically significant at the .10 cut-point unless otherwise noted.




Beyond the Wall

Since November there’s been an upsurge in local, national and international marches where protestors carry signs that read: “Build Bridges, Not Walls.” They are responding, of course, to the Trump Administration’s long-promised Border Wall.

And they are reiterating something scholars already know: even where there are border walls, creative community building, so often spear-headed by women, easily blurs boundaries.

The U.S.-Mexico border we know today was formed out of two moments, the 1848 signing of the Treaty of Guadalupe Hidalgo between the U.S. and Mexico (which designated the Rio Grande river as the official border separating Texas and from its southern neighbors) and the Gadsen Purchase, which, in 1853, established the rest of the dividing line. Not only a geographic boundary, the border became associated with a set of practices of inclusion and exclusion affecting those on both its sides.

Still, Mexicans were not immediately or irrevocably “othered” by the U.S. government.

Mexican workers provided necessary labor for U.S. manufacturers, both within the U.S. (where they worked as conquered labor, migrant labor, and as “guest workers”) and in Mexico (in maquiladora assembly plants). It took a 1970s-era recession to spur a stronger stance against Mexican immigration to the U.S., with the Immigration and Naturalization Service (now known as Homeland Security) specifically citing such migrants as national security threats. Explaining economic problems as a consequence of unauthorized migration and employing the language of “invasion,” even then CIA director William Colby would claim that population growth south of the border would mean “120 million Mexicans” by the end of the century and a Border Patrol without “enough bullets to stop them.”

Similar fears are employed today, as the administration looks for ways to slash budgets so as to fund President Trump’s wall. Of course, there is already a border wall that crosses 653 miles of the 2,000-mile stretch separating Mexico and the U.S. Economists peg its cost at $7 billion, and estimate that Trump’s proposal will cost another $25 billion (excluding labor costs). No one is truly able to account for how this wall will be handled on privately owned land or in Texas, where the Rio Grande flows, but these details are cast aside. Natural obstructions haven’t stopped the Border Patrol before, after all—in the stretch of border between San Diego and Tijuana, for instance, the Surf Fence project granted $4.3 million on behalf of the Patrol to erect a barrier stretching 300 feet into the Pacific Ocean.

Goods and capital are freely allowed to cross; the border is designed to obstruct, control, and regulate the movement of people, of labor.

In heated rhetoric, U.S. citizens are told that border security is about violence, crime, economics, and the drug war. Women and children are victims (though not blameless ones) and border dwellers are simply collateral caught in sometimes-literal crossfire. Where statistics show a doubling in migrant deaths in the last 20 years, government spokespeople and media report on the “unintended consequences” of border militarization. From a human rights perspective, the wall and its construction have already violated international norms, including the rights of indigenous peoples, the right to private property, and the right to non-discrimination. This is all, it would seem, the collective cost of U.S. safety.

The reality is that 82 million people call the borderlands home. They survive, even flourish. And women are central agents, not victims, in this setting.

In my ongoing research just across the U.S. border in Maclovio Rojas, I have met women, like Hortensia Hernandez, who assume leadership roles to fight for community well-being and lead their neighbors in building their own schools, sports fields, and public services in an area where neither the U.S. nor Mexican government seems willing to help.

And in Tijuana, a majority-female workforce toils long hours for low wages in the factories of multinational corporations.

Women there have created cross-border alliances with activists in the U.S. to try to improve their working conditions. Their American counterparts show their support by, for example, protesting in front of the homes of factory owners who live in the U.S. Such transfronteriz@ organizing transforms “us versus them” divisions into a movement recognizing that we are all workers with entwined destinies.

The borderlands include both U.S. and Mexican territory, U.S. and Mexican citizens and nations of Indigenous peoples. They represent a site of resistance, conviviality, agency, and creative community building. This is a space in which transformative politics not only can but already does take place.

The health of both countries’ economies, so reliant on the cross-border construction and sale of goods, and the health and viability of borderlands communities will be immeasurably impacted whether the Trump Administration’s wall comes to fruition.

Politicians, corporate leaders, and borderlands residents must come together—like so many autos built with U.S. parts in Mexican factories—to fashion not only steel walls but also humane policies if the people and economies of both countries are to flourish.

Michelle Téllez, Assistant Professor of Mexican American Studies at the University of Arizona.




Safety Implications of Regulatory Rollback at the FDA

Prescription drugs in recent years have experienced breathtaking price hikes and occasionally have proven dangerous after they have gone on the market. What is happening with these issues since the Trump administration took office? For one, President Trump announced recently his intention to roll back FDA regulations as much as 75%.  Scott Gottlieb has just been named Trump’s choice to lead the FDA, and he as well as the other two candidates, Jim O’Neill and Joseph Gulfo, called for streamlining regulatory procedures. Jim O’Neill even called for drugs to be tested only for safety.

Once marketed, individuals can take new drugs “at their own risk” and thereby prove – or disprove – their effectiveness.

All adults as they age are more likely to take not just more drugs but drugs for both acute and chronic conditions. These individuals, with few exceptions, take prescription medicines because they need them to stay alive, to manage conditions adequately enough to be functional, or to dull chronic or acute pain. Taking drugs for them is not a choice—they have no option but to “take the risk.” Under O’Neill’s plan, prescription medications intended for life-threatening conditions could end up killing these people if they turn out to be ineffective, an outcome that is all too likely given that an average nine out of ten new drug candidates prove unsuccessful.

Furthermore, the need to take such unsafe risks is not spread evenly across the population.

Lower income individuals, although they do not take more prescription drugs than higher income individuals, suffer from higher rates of chronic and life-threatening diseases. They, then, would be impacted the hardest.

Though data on gender is not plentiful, one 2014 study found that out of a sample of approximately 30 million individuals, women overall are more likely to use prescription drugs than are men, with 67.5% of women utilizing prescription drugs versus 58.9% of men. In the 18-44 age group the difference was even greater, with 64.1% of women versus 48.6% of men utilizing at least one prescription drug. Women also overall took a higher number of prescription drugs, 5 on average versus 3.7 for men.

These statistics evidence the fact that, though everyone who takes prescription drugs is at risk of regulatory rollbacks – and in the space of a lifetime, this includes most people – women are at more risk given the higher number of prescription drugs they consume.

Frighteningly, despite being prescribed more drugs, women are less frequently given the clinically recommended medications for particular . For example, they are less likely than men to be given the recommended medications for cardiovascular disease or diabetes. Women with histories of coronary artery disease receive cholesterol-lowering drugs at significantly lower rates than men with the same history – 59% vs. 71.5%. Down the road, this could mean that women are at higher risk of inadequately-managed coronary artery disease, while men receiving the latest cholesterol-lowering drug or beta blocker will be at higher risk of adverse reactions from inadequately tested new pharmaceuticals.

One potential reason for Trump to trim regulations is to speed the approval of drugs, something that on the surface seems like a good idea. The faster a new drug can be approved, the faster it can get to market and to the people who need it. And indeed, it takes a long time to get a new drug approved for market: an average of eight to twelve years.

Yet, the current approval process emerged for a reason: it was implemented and revised in response to preventable tragedies arising from unsafe drugs.

The original Pure Food and Drug Act of 1906 was strengthened in 1938 when an anti-infective elixir called Dr. Massengill’s Elixir Sulfanilamida killed 107 individuals. Public fear resulting from these deaths led Congress to pass a bill that strengthened labeling of food, drugs, and cosmetics, and also gave the FDA greater power to seize products. The thalidomide tragedy, when hundreds of babies were born with no or underformed limbs to women who had taken thalidomide during pregnancy, prompted Congress to pass the 1962 Kefauver-Harris Amendments. These Amendments, among other things, enabled the FDA to prevent new drugs going to market, and created the three-phased, randomized controlled clinical trial structure required today for thoroughly testing a drug’s safety, dosing, and efficacy. With the AIDS epidemic, the FDA created a fast-tracking mechanism to get drugs approved more quickly in urgent circumstances. This concession came only after intense and consistent campaigning by early AIDS activists tired of seeing hundreds die while new pharmaceuticals were showing the promise in early-phase testing of keeping them alive.

Though certainly not infallible, the FDA’s current set of regulations and procedures for drug and new device approval are there for good reason: there is little doubt they succeed much of the time in shielding the public from the worst consequences of what can happen when drugs, vaccines, or devices are not properly vetted.

Indeed, in a report released last year, the FDA noted twenty-two drugs that had shown promise in early-stage testing (which tests for safety) but had failed late-stage, Phase III testing (which tests for efficacy while continuing to test for safety). Seven of these twenty-two failed to prove either safety or efficacy in Phase III trials.

Returning to the question of time to approval, expedited approvals themselves, once the exception at the FDA, are now becoming more the norm. A recent article from The New England Journal of Medicine shows that in 2013 more than 60% of new drugs were fast-tracked through the approval process. In addition to the AIDS drug-related fast tracking program, the FDA now has four more programs enabling pharmaceutical companies to receive expedited approval for drugs, for example, for rare diseases, breakthrough therapies, and even for antibiotics. Yet as the authors of the NEJM article note, this is not necessarily a good trend. Expedited review is typically intended for patients with urgent conditions who have no other options, and as such, the FDA requires less evidence of safety or efficacy for these therapies.  For that reason, though, the expedited review is often time-limited and approval granted contingent upon a promise of further testing even while making the expedited drug available in humanitarian cases. Nevertheless, given the FDA’s wide latitude in defining what qualifies for expedited approval, pharmaceutical companies are increasingly fast-tracking drugs because it means earlier time to market, not because it means saving more lives.

There is also little doubt that in recent years the FDA has come under fire for long delays in drug approval that are not related to testing, but rather to how long it takes new drug, vaccine, or device applications to wind their way through the approval process.

One of these problems is due to the vicissitudes of funding that the FDA, like all federal agencies, experiences with changes in administration. As noted by one commentator, there are about one thousand vacant seats at the FDA right now, which inevitably has to cause delays.

Despite this barrier, the FDA set a goal to approve standard new drugs within ten months, and expedited drugs within six.  For 2016, they met that ten-month average goal, and almost met the priority approval goal. In contrast, in 1993 average times to approval were twenty-seven and twenty months, respectively. Now, however, Trump has issued a hiring freeze, which is likely to undermine this progress.

Rolling back regulations at the FDA would not accomplish the efficiency that Trump wants. On the contrary, slashing the budget would ensure that seats remain empty and that more become empty, resulting in fewer experts to make the approvals still necessary even with regulatory reductions, and consequently, longer approval times. Fewer regulations would put individuals at vastly higher risk when consuming new pharmaceutical drugs and vaccines or utilizing new devices. These risks could be relatively minor, but they could also be catastrophic.

To add such significant safety risk to prescription medications inadequately tested before marketing is inhumane; it treats individuals as guinea pigs while the risk of injury is unevenly spread by income and by gender.

No one needing prescription drugs would be spared the unconscionable risk entailed in allowing new drugs, vaccines, and devices to be marketed with little testing, and equally little knowledge about whether they are safe or effective. The one optimistic note here is that several pharmaceutical companies themselves have pushed back on Trump’s recommendation. They note the uncertainty this would lend to the FDA and its approval system, and cite as well the safety issues that would inevitably result. If the pharmaceutical industry doesn’t even want rolled back regulations, why should Trump?

Susan Craddock, Acting Director, Center for Bioethics; Professor, Gender, Women and Sexuality Studies and the Institute for Global Studies, University of Minnesota

— Photo by Meghana Kulkarni




Future of ACA: Impact on Women and LGBTQ Individuals

Future of ACA: Impact on Women and LGBTQ Individuals

As Congress and the President deliberate on the future of the Affordable Care Act, what do women and LGBT individuals stand to lose?  Here’s what you need to know.

– Diana Boesch, Masters of Public Policy Student, Humphrey School of Public Affairs

Christina Ewig, Professor and Faculty Director, Center on Women, Gender and Public Policy, Humphrey School of Public Affairs.




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.

Most adults currently on “welfare” (commonly understood as the Temporary Aid to Needy Families program or TANF) are single moms, two thirds from communities of color.

For these recipients, scholars have documented how the current workforce development system that is designed in part to help TANF participants exit poverty and gain economic stability actually helps to maintain the segregation of women, especially women of color, in lower paying gender stereotypical occupations (service and care) and, consequently, out of the living wage infrastructure jobs that Trump referred to in his speech.

A majority of workers enter the skilled construction trades through apprenticeship programs, an “earn-while-you-learn” approach where women’s representation remains in the single digits nationally (7% in 2014).  Since 2015, the Obama administration and Congress have invested $265 million in new funding to support apprenticeships.  $20.4 million has gone to helping states diversify apprenticeship programs by recruiting and retaining more women and people of color, among other aims.  If the Trump administration is serious about using an infusion of infrastructure spending to move people off of “welfare” and rebuild America in the process, it should continue and significantly expand these efforts.  In contrast to this approach, however, Trump’s first choice to head the Department of Labor, fast-food CEO Andrew Puzder, was expected to focus on more traditional forms of job training and placement programs that channel workers directly and quickly into the low-wage sectors of the economy (including  the fast-food sector where Puzder has operated for much of his private sector career).  Puzder withdrew his name from consideration for that appointment and it is unclear where his replacement Alex Acosta stands on issues related to workforce development.

Another tool that has been successfully used at the federal, state and local level to create additional demand for women and people of color in construction are workforce participation goals on government-funded construction projects.

Executive Order 11246, which was issued by President Lyndon Johnson in 1964 and not updated since 1980, calls for 6.9% of work hours on certain federally funded projects to be filled by women. Minority goals vary significantly based on geography and trade.  At the state and local level, higher goals, especially for minorities, have been successfully achieved.  For example, the worker’s rights organization Jobs with Justice recently released a report on model projects in Minnesota and Boston.  These projects exceed goals, achieving 30-36% minority participation and 9-10% female participation.  Updating and increasing participation goals on the federally-funded projects proposed by the Trump administration could contribute to accomplishing his stated goal. Workforce participation goals, however, are more likely to be achieved with aggressive oversight and enforcement, something a Trump administration may be unlikely to pursue, given its stance on regulations.

Given Trump’s campaign rhetoric, it is unlikely his inaugural proclamation was aimed at single moms.

More likely it was targeted to the white working class men who propelled him in to office.  But if this is the case, the President’s remarks would represent a significant, if not intentional, change in the dominant narrative about white working class men and their reliance on government support.  Historically, the unemployment insurance (UI) program that predominantly assists white men (who are cast as victims of a bad economy) has not been labelled a “welfare” program.  It is housed in the U.S. Department of Labor and the state equivalents, for example, as opposed to the Department of Health & Human Services where most traditional “welfare programs such as the Temporary Assistance for Needy Families-TANF-program are maintained.  Over the past three decades, the political narrative, at times advanced by both political parties, has been that welfare (or TANF) is for lazy women who have and continue to make bad choices and take advantage as “Welfare Queens.”   In fact, research conducted in Minnesota shows that most TANF recipients are also victims of a bad economy, coming directly from a job and/or already working in a low wage job that doesn’t pay enough to support a family or qualify them for unemployment insurance.

Living wage construction jobs would be a significant benefit for women relying on TANF and the families they support.

Finally, it is important consider what President Trump meant when he said “American hands and American labor” should be “rebuilding America.”   While unauthorized immigrant workers, mostly men, are over-represented in the U.S. construction workforce, especially in the South, their share has been in decline since 2007.  It is also important to note that immigrant workers are found in the lowest wage and most dangerous sectors of the construction industry and face significant exploitation due to their undocumented status.  In fact, declines in immigration have contributed to a shortage of construction labor in some states.  Recent proposals to build a wall on the Mexican border may be more likely to stem the tide of out-migration and keep unauthorized immigrant workers in construction jobs, rebuilding our country. It is unlikely, based on the inauguration statement above and others, that the Trump administration intends that outcome.

The Trump administration plays a significant role in creating a dominant narrative about public policies and their intended outcomes.  So, what does it mean to suggest that “welfare” recipients should be put to work rebuilding our country?  Alternatively what are the implications of casting the “forgotten” white working class (formerly male breadwinner) workers at the center of Trump’s rhetoric and campaign as “welfare” recipients, alongside the women of color and children we more often think about when this term is used?

The President’s language could signify a choice to use the resources at his discretion to move more women into living wage construction jobs.  But more likely, these infrastructure jobs will be used to satisfy the promises made to white working class men to bring back family-supporting “manly-man” work, leaving women on “welfare” to fill the fastest growing but lowest wage jobs in the service and care sectors.

In doing so, President Trump will continue his campaign rhetoric that reinforces narrow ideas about masculinity and breadwinning.  As Congressman Tim Ryan told NPR, “These are working-class people [men]. They don’t want to get retrained, you know, to run a computer. They want to run a backhoe. They want to build things.”  This may be the case, but perhaps the administration should also be open to women who may actually want to build things, too.

Debra Fitzpatrick, Co-director, Center on Women, Gender and Public Policy, Humphrey School of Public Affairs, University of Minnesota

— Photo originally published in Equipment World of a trainee in the Women Wear Hard Hats Too construction training program in Minneapolis, Minnesota

 




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.