Colorado Prisons Just Got a Little Safer for Trans Women

  • Orion Rummler & Candice Norwood
  • June 14, 2024
  • Yes! Magazine

Taliyah Murphy, a transgender woman living in Colorado Springs, studies accounting and finance. She co-owns two small businesses with her fiancé and eventually wants to start a financial education nonprofit for marginalized people.

For Murphy, starting her gender transition helped her focus on her education as she developed her career—but she faced near-impossible barriers at every turn. She started her transition while incarcerated with the Colorado Department of Corrections (CDOC), which repeatedly denied her gender-affirming care. She had to make multiple appeals before she could access hormone replacement therapy, she recalls, and she experienced severe depression because she was unable to treat her gender dysphoria. Even a recommendation by a CDOC psychiatrist wasn’t enough to qualify her for surgery.

Her safety was also compromised, she told The 19th. Murphy was denied transfer to a women’s prison, she said, and constantly harassed and misgendered by staff and inmates while housed in men’s facilities. She endured sexual advances from other inmates and was punished through solitary confinement for speaking out when faced with threats against her life. Survival was exhausting.

“At one point for me, if I wasn’t at my job assignment, I didn’t really come out of my room a lot,” Murphy said. “I just wanted to stay away from the drama and any type of attempt to try to victimize me.”

Murphy is one of hundreds of transgender women with similar experiences in the state. Her story is included in a class action lawsuit filed in 2019 by the law firm King & Greisen, LLP and the Transgender Law Center. According to the lawsuit, these women were frequently subjected to sexual and physical violence, and their requests for medical care were routinely ignored, in violation of the state constitution and Colorado Anti-Discrimination Act.

This March, that suit resulted in a groundbreaking legal agreement known as a “consent decree” that requires Colorado to overhaul how it houses incarcerated transgender women and provides medical care to all trans people behind bars. Now, Colorado’s prison system must provide the same gender-affirming health care covered by state Medicaid, and trans women must have the option to be housed with other women.

While other settlements may mandate specific changes without any input from the government agency involved, in this case lawyers worked with Colorado officials to outline a legally binding agreement. Experts hope it will serve as a model for comprehensive change for other states. Transgender women across the country face life-threatening circumstances behind bars—and the majority of them are forced to live with men.

The roots of the case trace back to 2018 when a Black trans woman named Lindsay Saunders-Velez sued the Colorado Department of Corrections after she was sent to a men’s prison at age 19 and sexually assaulted. She later worked with attorney Paula Greisen and the Transgender Law Center to file her case. During the legal team’s investigation into Saunders-Velez’s experiences, the attorneys learned that many others in Colorado shared similar problems.

“We started going to the prisons to meet witnesses and we were shocked at that time to learn that there were about 150 women living in men’s facilities,” said Greisen, who is now a partner with Greisen Medlock, LLC, a civil rights and employment law firm. Over time, that number more than doubled to about 350 women, resulting in the class action lawsuit that Greisen’s previous firm filed in November 2019 against Colorado’s governor and the state’s corrections department, in which Murphy is named as a plaintiff.

Saunders-Velez’s own case was settled in July of that year for $170,000. It did not allow her to transfer to a women’s facility, which she preferred, but she was allowed to serve the rest of her sentence in the men’s facility where she felt the safest. It also did not require broader changes to the state’s treatment of incarcerated transgender people.

The new consent decree, however, mandates systemic changes aimed at addressing trans women’s health and safety needs. These must be implemented in full by January 2025, although it allows for some flexibility if the Colorado Department of Corrections experiences staffing or budget shortages.

This agreement is unique because of the ways it addresses housing and care for incarcerated trans women.

Since 2003, the federal Prison Rape Elimination Act (PREA) has required that transgender, nonbinary, and intersex people be assessed on an individual, case-by-case basis to determine the appropriate housing for them. But the ambiguity of the law’s language gives corrections departments broad discretion to make housing assignments for transgender people. Many prisons require trans people to undergo gender-affirming surgery before they can be placed in a facility that aligns with their identity, yet accessing gender-affirming care within prison at all is often impossible or involves long wait times.

The World Professional Association for Transgender Health (WPATH) publishes internationally recognized standards of care for transgender and gender-diverse people. Frequently, however, prison facilities, including those in Colorado, deny trans people’s requests for care and housing that aligns with their gender identity.

To address these concerns, the CDOC has agreed to house transgender women in one of three areas, including two new units, depending on what the person wants. These can include living in the general population at one of the state’s women’s facilities or the integration unit at the Denver Women’s Correctional Facility, which would help an incarcerated trans woman adapt before moving into the women’s general population. Another option is living in the voluntary transgender unit at the men’s Sterling Correctional Facility, the largest prison in the state’s system.

Julie Abbate, a lawyer and advocate, said it is clear that a lot of thought and attention to detail was put into the Colorado agreement. “This consent decree seems to have drawn on lessons learned in the field that if you just throw a bunch of people who have lived in a facility designated for men into a facility for women—without any kind of transition period or warning—then it can really be an awful situation,” she said. Abbate worked for 15 years in the civil rights division of the Department of Justice and is now the national advocacy director for Just Detention International.

Shawn Meerkamper, managing attorney at Transgender Law Center, who worked closely on the Colorado lawsuit, said that the housing options laid out in the consent decree should help both transgender and cisgender incarcerated people adjust to new living situations. The integration unit is meant to be a temporary place to ease the transition for everyone involved, they said—while the voluntary unit is meant for trans women who don’t want to leave the only prison system that they know and have experience navigating.

Having so many options for transgender women is unique, and is a significant achievement for state advocates, said A.D. Lewis, attorney and project manager for Trans Beyond Bars at the nonprofit Prison Law Office. Although PREA requires prison officials to ask transgender people how they want to be housed, none of his clients have ever been asked, he said.

“In the vast majority of prison systems, they will be housed by the external appearance of their genitals at the time of booking,” he said. Some trans women are placed into women’s facilities based simply on that criteria, while others are placed into solitary confinement or isolated from the general population—often because they are such a target for violence.

The Colorado consent decree outlines a process for making housing placement requests for transgender inmates and it sets deadlines for when the CDOC must respond. Any of the placement requests that are denied for the integration unit, voluntary transgender unit or women’s general population must be reviewed every six months.

The agreement also directs the CDOC to update its clinical standards for medical care and to work with an independent medical and mental health consultant to provide training for staff. It allows for flexibility depending on the type of medical care an incarcerated trans woman may want, Abbate said.

The policy provisions of the consent decree apply to “persons who have been, are, or will be incarcerated in the CDOC and who have, at any time, identified themselves to CDOC during their incarceration as transgender women,” according to the consent decree.

These changes will make transgender women behind bars safer, experts told The 19th—which is sorely needed, as the problems in Colorado are part of a pattern throughout the country. D Dangaran, director of gender justice at Rights Behind Bars, a nonprofit legal advocacy organization, takes on legal cases for incarcerated transgender people who are being denied gender-affirming care and other needs. Trans people behind bars are misgendered, deadnamed, forced to endure strip searches, they said—and these everyday violations of bodily autonomy are torturous.

“Violence occurs behind bars on a daily basis for all trans people, especially trans femme people,” they said.

Transgender people behind bars—particularly women housed with cisgender men—experience a disproportionate amount of sexual violence, harassment, and assault in prisons. It is still rare for transgender women to be housed in women’s facilities, Dangaran said.

Researchers are in the early stages of understanding the outcomes of policies that aim to support incarcerated transgender people, since there are so few examples of inclusive policies to learn from, said Elana Redfield, federal policy director at the Williams Institute at the UCLA School of Law. “There’s a huge need for more information,” she said. “On their experiences and particularly what policy changes actually make a real, concrete, measurable improvement for them.”

In California, such an experiment is currently underway. In 2020, the state passed a law that requires transgender women to be placed in a women’s facility if they ask to be. The law went into effect in 2021. Yet Lewis, who works closely with trans clients in California, said that in the three years since then, only 44 people have been approved for transfer out of hundreds who have requested it. There is a huge backlog of requests and no formal administrative policy on how the state’s corrections department should address it.

“I think it would take over a decade for them to house the rest of the people that have requested to be reviewed for housing in a women’s facility. That’s just trans women,” Lewis said. “So we’re talking about pretty significant delays.”

Frequently, prison facilities only change their policies on housing or gender-affirming care if a lawsuit forces their hand, Dangaran said.

Donna Langan became the first federal prisoner to receive gender-affirming surgery in December 2022 after she sued the U.S. Bureau of Prisons, according to her lawyers. In June 2022, Cristina Nichole Iglesias won a case to receive gender-affirming surgery while in federal prison. She received her treatment in 2023.

Even with a court win, implementation can be slow or further enforcement may be required.

Ashley Diamond sued the state of Georgia in 2015 after she was held in men’s prisons, where she reported being sexually assaulted multiple times and denied hormone treatments. In 2016 she won an undisclosed settlement, which prompted policy changes in Georgia. Diamond sued again in 2023 because the state failed to provide her adequate health care or protect her from sexual assault after a second incarceration, according to her complaint. Ultimately, Diamond withdrew her second lawsuit, citing mental health reasons.

As for Murphy, she never got gender-affirming surgery while in prison. She was released in May 2020 and was able to get the surgery last year—since it was covered by Colorado Medicaid, she didn’t have to pay out of pocket for the expensive procedure.

The settlement reached alongside the consent decree also requires the state prison system to pay over $2 million in damages to members in the class action suit, which Murphy sees as an acknowledgment that the state did something wrong, she said. The policies brought by the consent decree are going to make “some monumental and systematic changes in the system,” Murphy said. “I feel like it will be a catalyst for the rest of the country. A blueprint.”

Consent decrees, while legally binding, must also be monitored for enforcement. The limited data collection inside prisons can make the process of determining outcomes for transgender people a challenge, Abbate said. Surveying the affected women about their experiences is one important way to understand the effectiveness of a particular change, she said.

And in the Colorado case, if the state prison system falls out of compliance with the consent decree, they can be taken to court again. The Transgender Law Center will stay in touch with plaintiffs as well as with the outside experts who will help implement the new policies, in order to make sure the state is following through on its obligations.

These changes will show other courts what is required for incarcerated trans people to be safe, even if it’s not binding precedent in other states. The policy changes mandated by the Colorado consent decree are groundbreaking in their breadth, Dangaran said—and hopefully, those changes will play out more effectively than in California.

“If it’s what the people in Colorado really wanted and needed, that itself is going to create an impact that will have ripple effects—and that is a carceral intervention that could lead to a lot of good,” they said. “Or we could find after five years of this that it didn’t.”

Originally posted From Yes! Magazine