A Maryland woman who was mistreated by prison guards and held in solitary confinement for over two months solely because she is transgender has scored a groundbreaking legal victory that could help improve the treatment of transgender inmates across the country, her lawyers said this week.
Sandy Brown, 40, was taken in 2014 to Patuxent Institution outside Baltimore for a routine mental health screening. There, Brown says, prison guards watched her shower, and one repeatedly called her “it” and told her to commit suicide.
“I spent 24 hours a day in solitary and was only allowed one hour of recreation during the entire 66 days I was there,” she said in a statement.
“They didn’t see me for the human being I am,” her statement continues. “They treated me like a circus act. They gawked, pointed, made fun of me and tried to break my spirit.”
As the result of a grievance she filed against the prison, a Maryland judge ruled in April that Patuxent’s treatment of Brown violated the Prison Rape Elimination Act, a federal statute that includes provisions to protect incarcerated transgender people from abuse.
“The majority of Patuxent’s witnesses specifically testified that they never had any training with how to work with transgender inmates and further testified that Patuxent did not have any policies in place to provide such guidance,” Administrative Law Judge Denise Oakes Shaffer wrote in her decision.
In August, Stephen Moyer, the secretary of Maryland’s Department of Public Safety and Correctional Services, officially adopted Shaffer’s determinations that Maryland must institute new policies for the protection of transgender inmates in prison.
“As far as we know, this is the first case in the country in which a transgender person been able to obtain individual relief, including monetary compensation, for violations of the national PREA standards,” Rebecca Earlbeck, an attorney with the FreeState Legal Project, the civil legal aid organization that represented Brown in court, said Thursday in a statement.
“We believe this case creates a framework for enforcing the national standards that transgender people who are incarcerated in other states and their advocates can follow to help to ensure that others do not have to endure the pain and trauma Ms. Brown experienced,” Earlbeck added.
In her initial grievance, Brown, a Baltimore resident serving a five-year sentence on assault charges, described being called “disgusting” by guards, and said she was made to feel like “some type of animal … like I was just less than a human being.”
One guard “told me that I should kill myself, that I’m — I’m not a woman, I would never be her. And she don’t know why I’m here,” Brown said, adding that she often contemplated suicide as a result.
Brown said that same guard also repeatedly referred to her as “it,” and when Brown was eventually gearing up to leave the facility, said, “I’m happy it’s leaving and we glad it’s not going to be here no more.”
Additionally, other guards occasionally pulled back the curtain while Brown showered in order to stare at her naked body. This, Shaffer later said, “was not for security purposes.”
But perhaps most egregious was Brown’s placement in solitary confinement for 66 days — well over the 15 days the U.N. Special Rapporteur on Torture has concluded constitutes torture.
Although solitary confinement is normally used for disciplinary purposes, Brown was placed in solitary simply because guards didn’t know whether to place a transgender woman with female or male inmates.
Email exchanges between Patuxent’s chief of security, Orlando Johnson, and other prison staff show Johnson determined Brown would be in solitary confinement before she even arrived at the prison.
The PREA “affirmatively says you have to do an individualized assessment” to determine where to house a transgender inmate, attorney Jer Welter, who also represented Brown in court with the FreeState Legal Project, explained to The Huffington Post. Placing a transgender inmate in solitary confinement for nondisciplinary purposes, Welter added, can only be used as a “last resort.”
Transgender people, who are disproportionately incarcerated in the United States, also often face higher rates of abuse behind bars. A 2011 survey found that 16 percent of transgender people in prisons or jails said they were physically assaulted and 15 percent were sexually assaulted. Thirty-four percent of black transgender inmates reported sexual abuse.
But placing trans people in solitary as a means of protection, the LGBTQ legal advocacy group Lambda Legal testified before the U.S. Senate in 2012, is “effectively punishing inmates for their identities and for being victims of abuse.”
It can also introduce trans people to a host of new perils. That same 2011 survey found that 12 percent of transgender inmates reported being denied routine nontransition-related health care and 17 percent report being denied hormone treatment while in solitary confinement.
Additionally, this isolation can increase the risk of harassment or abuse by guards. Nearly 40 percent of trans inmates surveyed in 2011 reported being harassed due to their gender identity by prison or jail staff.
While regulations introduced under PREA were meant to address these concerns, the act lacks a method of enforcement. Federal lawsuits filed by trans inmates across the country have repeatedly been tossed out of court, Welter said.
But litigating it at a state level, he added, could be the new blueprint for success. States can lose federal funding if found to not be complying with PREA guidelines.
What’s important, Earlbeck said in a statement, is that transgender inmates have access to legal counsel.
“If Ms. Brown had not been brave enough to file a complaint against her abusers, and if she did not have access to the services of a civil legal aid organization like FreeState Legal, she could very possibly still be experiencing daily abuse and trauma at the hands of her prison guards,” she said.
Shaffer’s ordered remedies in Maryland — almost all of which were adopted by the state — include mandatory training for correctional staff on how to house and treat transgender inmates.
Welter said Brown is now incarcerated at the Maryland Correctional Training Center in Hagerstown, where she is housed with men.
“She is more comfortable being incarcerated with men,” Welter said.
For prisons, it’s not actually as simple as housing transgender men with men, or transgender women with women, he explained. It’s always a “case by case” determination, based largely on the feelings of the particular inmate.
At her new facility, Welter added, Brown “was immediately placed with no problem into general population.”
Brown will receive $5,000 in punitive damages as a result of her legal victory.
“To the other transgender and intersex women behind bars, don’t give up,” Brown said in a statement this week. “There is hope out there for us.”