December 23, 2020
This November, the U.S Department of Justice released a scathing report concluding that policies and practices of the Massachusetts Department of Correction (DOC) fail to ensure the mental health of those it incarcerates. DOC personnel and policies wrongfully and repeatedly placed individuals under mental health watch in solitary confinement for prolonged periods of time. This barbaric treatment led to a number of deaths by suicide, a transgender man and a gay man among them.
The report underscores what advocacy groups have been fighting against for years. When incarcerated, LGBTQ people are subjected to unsafe housing conditions, harassment, sexual violence and extended time in solitary confinement (a practice that has been globally condemned as torture). In response to the Department of Justice report, the Massachusetts LGBTQ community joined together to demand sweeping policy change, independent oversight, and staff accountability at all levels.
GLAD and Black and Pink Massachusetts issued a community response statement to this report which was joined by nearly every Massachusetts-based LGBTQ organization. “As organizations working on behalf of LGBTQ liberation in Massachusetts and nationally, we are keenly aware of the degrading and demeaning experiences suffered by members of our community held by DOC. The Commonwealth’s failure to provide for the most basic needs of those it locks up undermines social progress for the LGBTQ community and beyond,” the statement explains. “[DOC] should seriously consider abandoning the use of solitary confinement,” said Michael Cox, Director of Policy at Black and Pink MA. “They should be disciplining [implicated staff], including termination of all of the guards and DOC personnel involved and who provided weapons to people and encouraged people to hurt themselves.”
Solitary confinement is an inappropriate punishment that demands reform within the corrections system. This summer, GLAD worked with several task forces focused on eliminating the over-policing and incarceration of Black, Latinx, and Native people. In Massachusetts, the Senate budget included amendments to reform police standards and to increase transparency within the DOC by requiring tracking of the numbers of LGBTQ people held in solitary confinement, euphemistically referred to within the corrections system as “restrictive housing.” Corrections officers place LGBTQ people in solitary confinement at disproportionately higher rates than the general population of incarcerated people. Both the police reform and data collection amendments have been included in the final budget sent to Governor Baker.
Recent case developments
GLAD’s work in the prison system rests on an abolition model and includes advocating for people to be housed in the facility consistent with their gender and to be able to access necessary and appropriate healthcare. In recent months, our work has also included calling for the early release of people who are medically vulnerable because of the COVID-19 pandemic.
Although Connecticut, Massachusetts and a small number of others have passed laws requiring that transgender people be properly housed based on their gender identity, transgender people who are incarcerated continue to experience high levels of discrimination, lack of access to healthcare, harassment, and violence. Much work remains to ensure that no LGBTQ people face the degrading and dehumanizing conditions that are intrinsic to our prison systems.
Beyond the discrimination that so many face, some of GLAD’s prison work is concerned with protecting very basic levels of safety. In October 2020, GLAD together with the Center for Constitutional Rights, Lambda Legal, and Boies, Schiller, Flexner LLP, joined an amicus (friend-of-the-court) brief in support of a transgender woman who was sexually assaulted in federal custody. The brief, filed in Gladney v. United States, challenges a dangerous district court decision that found prison officials enjoy immunity even when they fail to protect transgender people in their care.
LGBTQ people face particularly formidable barriers to accessing healthcare in prison. The obligation of the Department of Corrections to protect people in prison extends to ensuring that people get the medicine and treatment that their doctors prescribe for them, as they do for gender dysphoria. GLAD joined an amicus brief along with Lambda Legal, the Center for Constitutional Rights, and Wilmer Cutler Pickering Hale And Dorr LLP filed in the case of Idaho Department of Correction v. Edmo.
Adree Edmo is a transgender woman who was refused medically necessary treatment for nearly five years while she was incarcerated. Though she was able to access hormone therapy and counseling, she was denied surgery. Through the months that Ms. Edmo wasn’t able to get surgery, her mental health worsened, and she attempted self-harm more than once. Because of her medical need, the district court ordered the Idaho Department of Corrections to provide the surgery she needed to treat the gender dysphoria from which she continued to suffer. The Ninth Circuit affirmed the district court order and Ms. Edmo finally received the care she needed. In October, the Supreme Court denied a petition for certiorari filed by the Idaho DOC, effectively refusing to change the ruling made by the Idaho 9th Circuit Court in Ms. Edmo’s favor. GLAD will continue to fight for the rights of transgender people to receive medically necessary care while incarcerated.
GLAD will continue to advocate for incarcerated LGBTQ people, including people of color, those living with HIV, and anyone impacted by the criminal justice system, including their loved ones and family members.