Corporeal prison, by Erik Pevernagie, oil on canvas, 2004
In 2011, then 16-year-old Demitrius Minor stabbed his 69-year old foster father 24 times. Theotis Butts, a retired railroad worker, and his wife, nurse Wanda Broach Butts, had taken in other troubled children in their New Jersey home, and some went on to lead successful lives. Demitrius (who now goes by the name Demi) is now serving a 30 year prison term for aggravated manslaughter and an unrelated carjacking. Demi must serve 85 percent of this sentence before being considered for parole.
Demi is now 25 years old, and has made the decision to transition to a woman while incarcerated. What does this mean going forward?
Transgender rights in prison may vary from state to state, but are guided by the Eighth Amendment of our Constitution, which disallows cruel and unusual punishment.
New Jersey, where Demi is serving her sentence, has an up-to-date policy on treatment of transgender or intersex inmates.
Below are pertinent excerpts from New Jersey Department of Correction’s Official Policy regarding transgender or intersex inmates.
*Inmates committed to the custody of NJDOC may be diagnosed with Gender Dysphoria and receive treatment by Medical and/or Mental Health staff.
*Gender Dysphoria means discomfort or distress caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics).
*Gender Identity means a person’s deeply felt sense of being male or female.
*Transgender means an individual that identifies his or her gender identity as different from his or her birth-assigned sex.
Identifying Transgender/Intersex Inmates
- Inmates will be asked if they wish to disclose their gender identity. If they answer in the affirmative, they will be asked what gender they identify with. NOTE: inmates are not required to disclose their gender identity.
- Inmates that elect to disclose their gender identfty, who identify as transgender, intersex or as a gender other than the birth gender indicated in the court record, will be referred to medical/mental health for evaluation to determine and document in the Electronic Medical Record if identification as transgender/intersex is warranted.
- Inmates may disclose that they are transgender at any time during their incarceratlon. Such disclosures will be processed using steps above.
Additional considerations:
Inmates are reviewed for safety.
Safety includes safe housing. NJ policy on housing transgender inmates is handled on a case-by-case basis.
Gender Identity Based Housing
In deciding the facility, housing and/or programming assignments for a transgender or intersex inmate, the following will be considered on a case-by-case basis:
- custody level and sentencing information
- criminal history
- institutional disciplinary history
- current gender expression
- medical and mental health needs/information/status
- vulnerability to sexual victimization
- likelihood of perpetrating sexual abuse
- facility-specific factors including inmate populations, staffing patterns, and physical layouts (e.g., types of showers available)
- any other relevant information
In Demi’s case, she is housed in the general population with male inmates.
Genitals, Genitals, Genitals
In a recent lawsuit filed by the ACLU on behalf of plaintiff Sonia Doe, a transgender woman who requested a transfer to a women’s prison, also in the State of New Jersey, the ACLU wrote:
“Despite its formal policy, upon information and belief, the NJDOC’s practice has been and continues to house prisoners according to their genitalia only. Upon information and belief, all women who have penises are assigned to men’s prisons solely on that basis.”
In other words, the lawsuit implies that although New Jersey has a formal policy that transgender prisoners may be considered for alternative housing, the only inmates who are ever accommodated have had gender reassignment surgery. At the time of the lawsuit, only two other trans women had been assigned to a women’s prison and in Doe’s case, this had not happened.
Sonia Doe prevailed in her lawsuit and was ordered to be transferred to a women’s prison, when days later New Jersey corrections officers tried to block her transfer because of… her genitals. According to a complaint filed by the Policemen’s Benevolent Association Local 105, a union representing prison guards, female guards should not have to strip search an inmate who has a penis.
NJDOC policy on strip searching reads that it must be conducted, “By custody staff of the same gender as the inmate and may include a scanning/testing device operator(s) of the same gender as the inmate” so this policy is ambiguous in terms of the expectations set forth by the DOC and may need to be revisited when dealing with transgender inmates.
More about transgender policies in prison:
Gender dysphoria is considered a medical condition, and as such, transgender inmates have a right to be medically treated with hormonal therapies.
Just this week, Demi was granted an appointment with an endocrinologist which should allow her to be prescribed hormone treatments.
Demi’s experiences will be fully documented at https://justice4demi.org/, which also has links to a Twitter and Facebook page created to follow her progress.
Demi would love to hear from anyone who would like to send her letters of support as she goes through this process. Details on how to contact her are provided at the Justice for Demi homepage. Demi’s personal experiences shall provide a look inside prisons in general, as well as transgender prison policies in particular. The prison policies have promised a lot to protect the dignity of the transgender inmate, and it will be interesting to see if these policies deliver.