LGBT Prisoners’ Rights: Farmer v. Brennan 20 Years Later


Posted on June 5th, 2014 by Cindy Gao

By: Urvashi Vaid, Senior Fellow, Center for Gender & Sexuality Law, Columbia Law School; Harper Jean Tobin, Director of Policy, National Center for Transgender Equality (NCTE); Amy Fettig, Senior Staff Attorney, National Prison Project of the ACLU.

Twenty years ago today, on June 6, 1994, the US Supreme Court unanimously ruled that Dee Farmer, a black transgender woman who had experienced a brutal rape and assault at the US Penitentiary at Terra Haute, Indiana, could hold prison officials accountable for their “deliberate indifference” to the risk of harm they knew she faced as a transgender woman.

Dee Farmer began that case representing herself, risking retaliation for speaking out about what happened to her. The ACLU National Prison Project joined in her case. Farmer’s initiative ultimately changed the legal landscape for prison assault cases as well as the public dialogue about rape in prison.

With Dee Farmer’s blessing and support, a national symposium will be held at Columbia Law School on November 14, 2014 to assess the landscape LGBT prisoners face. Titled Deliberate Resistance: LGBT Prisoner’s Rights 20 Years after Farmer v. Brennan, the event will bring together a wide range of activists, lawyers, academics and advocates. The symposium will focus on four of the factors underlying Dee Farmer’s case: the rights of prisoners to hold government officials accountable for their failure to protect; the movement to end sexual abuse in prison; the ongoing effort to secure appropriate housing for LGBT prisoners; and access to appropriate and necessary medical care in prison.

We write this piece today, on the 20th anniversary of Farmer v. Brennan to mark the fact that while much has changed over the past 20 years, the unacceptable epidemic of sexual violence in prison persists despite legal mandates and legislation. Lesbian, gay, bisexual and transgender prisoners face widespread and pervasive violence, inadequate health care, mental health consequences from discrimination and violence and exclusion from educational services and programs. (See Columbia Law School’s A Roadmap for Change, p. 22).

The legacy of Farmer has been significant, if mixed, in its impact. Courts have interpreted Farmer to impose a duty on prison officials to protect a prisoner when they had knowledge of the vulnerability (s)he faced. In 2003, Congress passed, and President George W. Bush signed, the Prison Rape Elimination Act (PREA), which in turn created a Prison Rape Elimination Commission to promulgate regulations on how to eliminate sexual violence. It took the Department of Justice (DOJ) until 2012 to issue these regulations, and it was only earlier in 2014 that the Department of Homeland Security extended PREA’s provisions to immigration detention facilities.

Meanwhile, the harassment, discrimination and violence against LGBT prisoners persists. A study of sexual assault in California prisons published in 2007 found that transgender prisoners placed in men’s prisons were 13 times more likely to be sexually assaulted than non-transgender prisoners with 59% of transgender study respondents reporting being sexually assaulted in a California correctional facility. And with the underreporting of sexual violence in prisons, that number is likely higher. Transgender and LGB incarcerated persons also report of the abusive searches, endemic harassment, physical assaults, denial of basic health care, prolonged isolation and violent housing placements that transgender endure in prisons, jails, juvenile detention, immigration detention facilities and lock-ups across the country. (See NCTE’s Standing with LGBT Prisoners as a resource).

In addition to facing staggering rates of violence while incarcerated, transgender people, particularly transgender women of color, are also being funneled into the criminal justice system at alarming rates. In the 2011 National Transgender Discrimination Survey with over 6,000 transgender respondents, 47% of black transgender women reported having been incarcerated at some point in their lives.

The work to end prison violence requires two things. First, it requires leadership by the DOJ, State Attorney Generals, corrections officials at every level, police and law enforcement officers to implement the reforms won through litigation and legislative enactment. Those entrusted with administering public safety have enormous power and discretion to act in ways that would protect all incarcerated persons from sexual violence. They must use their power proactively to prevent and address abuse and violence.

Some argue that a private right of action in PREA may be the only way to incentivize such a commitment and we support that call. In the interim, prison, jail and detention center policies can be changed in countless ways to address the specific needs of LGBT people – as a recent report published by the Center for Gender & Sexuality Law at Columbia Law School (CGSL) outlines, alternatives to incarceration can be expanded to channel as many people as possible into less violent environments. And the wholesale segregation and isolation of transgender and LGBT prisoners can be abolished.

Second, ending prison violence requires the civil rights community, criminal justice reformers, and LGBT organizations to focus on ending mass incarceration. Criminal justice policy must become a priority for the LGBT movement. This is one of the aims of the newly formed LGBT/HIV Criminal Justice Policy Working Group, coordinated by the Center for Gender & Sexuality Law, and including the ACLU, NCTE, and 15 other organizations. The Working Group members are engaged in litigation, education, organizing, and advocacy in partnership with grassroots groups working to address the criminalization of LGBT people and people living with HIV (PLWH).

People like Dee Farmer in prisons and detention facilities are taking great risks to stand up for themselves and change conditions of confinement. It is essential that the LGBT movement stand with them to end abuse and violence and achieve a more just world.

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