Trans and Incarcerated: Tips for Representing Clients Forced to Live at the Intersection of Transphobia and the Prison Industrial Complex
I sat in the cold room at the end of the hallway with all sorts of thoughts going through my mind. I had been waiting for my potential client to arrive but it is taking longer than expected. I noticed everything. Two doors down, a man was communicating with his family through a glass barrier. In the room across from me, a guard was eating chips and he is chewing vigorously. In the room next to me, an attorney and his client seemed to be preparing for an upcoming hearing. I had been waiting for more than twenty minutes for my client and as time passed, I became less distracted by my surroundings and more anxious. I started to wonder what happened to my client. Was she still coming? Did she change her mind? Our conversation on the phone was great. But she did tell me that she did not trust attorneys.
I thought she wanted to see me, I could hear the excitement in her voice when I told her I was coming. Maybe I was wrong.
I was drawing my third flower on the back of my file when she emerged at the end of the hallway. I smiled, but she did not smile back, she looked uncomfortable as the guard walked her toward the room. She looked nervous. She walks in and the guard closes the door. Before she sits down, I get up and introduce myself: “I am Alexandra. My pronouns are she/her/hers.” She says nothing.
As the guard disappears into the hallway, she stares at me for a few seconds, takes a deep breath and smiles. She puts her head down and whispers: “Thank you” as she holds my hands. At that moment, we connected. She felt safe with me. The introduction was short but it was important.
Jeannine[i] has been at the Krome Service Processing Center, an all-male immigration detention facility, for six (6) months. The problem is, Jeannine is not a man. She is a transgender[ii] woman. At thirty-four years old, she has had a long life. She survived domestic violence, childhood trauma, and even an attempted murder in her home country – but if you ask her, this[iii] is the hardest fight of her life.
She is faced with two questions – should she continue to endure transphobia at Krome and fight to remain in the US, or agree to return to her home country as a “free” woman, where she will likely be killed? Life for Black, trans, and immigrant women has never been easy. Things seem to always boil down to the lesser of two evils.[iv]
For Jeannine, one must really wonder what freedom looks like. To be herself in her homeland, she would be risking her life on a daily basis. To be herself and have a greater chance at survival, she must wait for her final hearing – two months from the date of that visit. “Freedom” comes at a greater cost for Jeannine than for cisgender immigrants. The mere act of existing openly as a transgender woman in her hometown is both an act of freedom and a death sentence.
In 2019, in honor of the murdered Black trans women worldwide, nonbinary actor and activist, Indya Moore wrote on their Instagram page “Existence that requires bravery is not freedom. A life that requires bravery is not free.”[v]
This leads us to the conclusion, that to be free, Jeanine must stay in the US and I, as her lawyer, am tasked with ensuring that we present a viable claim for asylum on her behalf. The burden is on the client and I to prove that she is unable and unwilling to return to her home country because she has a well-founded fear of past persecution or future persecution because of her gender identity.
This is where my work with Jeanine begins. I am here because Jeannine wants to be truly free, she does not want to be brave. She needs my help to stay in the United States – a place where she has a safe home and network of friends. But, staying in the US is no easy task – it requires reliving some of the trauma she has experienced as a result of violent transphobia, being vulnerable in a room full of strangers, and even having to prove her transness to a judge who will eventually decide her fate. Staying in the US, also means more harassment from the guards and other detainees at Krome. I am here to talk about hard choices. I cannot ask the judge to release her; I cannot expedite her case. But in me, she sees more than a lawyer, she finds a friend – someone who sees her humanity; someone who sees the grave injustice in have a woman living in a men’s prison.
The moment that the guard is out of sight, she breaks down. “It has been hard,” she says. “I am afraid of going back; but I don’t think I can take it here much longer.” Detention is hard for transwomen. They are constantly misgendered, deprived of required medical treatment, subjected to harassment by the guards.
Jeannine is running fled to the U.S. to escape a physical attack she experienced because of her feminine gender expression. She also wants to free from detainment where she is in constant fear for her safety. The journey to staying in the US is not an easy one. To be granted asylum, she will have to sit through invasive questioning by strangers who will question everything – her fear, her past, and even her transness.[vi]
Being a transgender person seeking asylum on the basis of persecution due to gender identity is difficult. Being an attorney to a trans person seeking asylum requires tact and toughness. One must be strict enough that the client feels confident that you will confront transphobia if it happens during the proceedings; but soft enough that they can trust you and be vulnerable.
Being an attorney to transgender and nonbinary people in detention requires a lot of compassion and even more hard work. Many detained transgender people endure violence at the hands of the guards. Many of them are afraid and ashamed to report the violence against them for fear of retaliation. Some transgender detainees have reported mistreatments and denial of hormones therapy following complaints of sexual harassment.
Transphobia and xenophobia create real, and at times, insurmountable barriers for transgender detainees in ICE custody. Their complaints are often ignored, and their needs are almost never met. They are routinely denied medical care. Simple requests to not be pat down by male guards are arbitrarily denied.
They have to endure all the violence that accompanies the prison-industrial complex and they must do so in a place where they are detained based on biological sex rather than their gender identity. So, many trans women find themselves in male only facilities, where they are susceptible to violence by other detainees, by guards, and other staff members.
Advocating for detained trans clients can involves:
Medical advocacy, where you have to contact the deportation officer’s supervisor and ensure that the client’s medical needs are being met.
Unfortunately, it can involve filing a complaint against a guard who was violent towards a client.
It involves building a rapport with the deportation officer so they can help you create a safe environment for your client prior to any interactions (explaining chosen names, pronouns, etc.)
Regardless of the effectiveness of the attorney at advocating for safe conditions in the detention center, the toughest and most important part of the job is securing a positive result at their final asylum hearing.
For many trans people, the long road to that positive result is laced with obstacles at all levels. Not only are detention centers horrible; but sadly at times, that asylum hearing itself can be a complete nightmare.
Immigration Judges are not required to be LGBTQ+ competent. Many can be overtly transphobic. It is the job of the attorney to ensure that their client feels safe and respected.
There are a few steps an attorney can make to ensure their client feels respected during this difficult process.
– Introducing oneself and clearly stating one’s pronouns and affirmed name.
– Providing a short introduction where you define some keywords that you will use throughout the proceedings (optionally, provide defined terms with court filing prior to final hearing)
– Politely correct anyone in the courtroom that misgenders the client.
– Apologize to your client if there are incidents of blatant transphobia.
When a trans person spends months or years in a facility being misgendered and assaulted by prison guards, their reality becomes such that their attorney might be the only person who sees them for who they are; who sees their humanity; and who sees them as a person deserving of respect and dignity.
Representing persons who are trans and incarcerated is an important task. Transgender immigrants are deserving of legal representation that is free from transphobia. They deserve representation from attorneys who are willing to do the work to rid themselves of transphobia, who are willing to go out of their way to ensure that the client feels safe and respected.
Representing transgender client in a xenophobic and transphobic system is an honor that no lawyer should take lightly.
[i] Name changed to protect client’s identity
[ii] denoting or relating to a person whose sense of personal identity and gender does not correspond with their assigned-at-birth sex.
[iii]Research has shown that the fear of returning to violent transphobia and state-sponsored violence has had severe mental health implications for LGBTQIA+ people in removal proceedings.
[iv]The US has consistently seen a rise in violence against transgender women of color, particularly black transwoman. See https://www.hrc.org/resources/violence-against-the-transgender-community-in-2019 The inequities and obstacles that transgender women face in the US makes life in the less than ideal. Black transwomen’s unemployment rate is nearly three times that of the cisgender counterparts. See https://www.glaad.org/transgender/transfaq
[v] https://www.instagram.com/indyamoore/
[vi] Immigration Judges due to their ignorance, regularly ask transgender clients about their sexual history, their sexual preferences and other things related to sexual orientation that are unrelated to their gender identity. They are often resistant to being educated on the difference and feel entitled to ask clients intimate questions about their bodies and sexual preferences under the guise of “investigating”.
References
https://www.lambdalegal.org/protected-and-served/jails-and-prisons#2
https://transequality.org/sites/default/files/docs/resources/TransgenderPeopleBehindBars.pdf
https://cdn.americanprogress.org/wp-content/uploads/2013/11/ImmigrationEnforcement-1.pdf