ICE Has New Guidance on Care of Transgender Immigrants in Custody

U. S. Immigration and Customs Enforcement (ICE) Office of Enforcement and Removal Operations (ERO) has announced updated guidelines concerning the care of transgender immigrants in custody.

This announcement comes on the heels of a letter that was sent by 35 members of Congress to the Department of Homeland Security (DHS) Secretary Jeh Johnson calling for limits on the use of detention for LGBT immigrants.

Currently ICE has about 65 transgender immigrants in custody out of a total of 30,000 undocumented immigrants in custody at 200 detention facilities across the country.

The Transgender Care Memorandum, which was released June 29, is the result of a six-month ICE NGO Working Group examination of policies concerning transgender detainees involving subject matter experts including LGBTI experts, input from transgender individuals and visits to a number of non-federal facilities across the country to observe best practices regarding transgender individuals in custody. The working group looked at how federal and non-federal entities identified, classified and housed transgender individuals.

The new guidelines include how ERO personnel will identify, process and look at individuals who identify as transgender as well as the adoption of a voluntary contract modification that will allow for detention facilities who care for transgender individuals to look at them holistically. This will include recording an individual’s gender identity during the data collection stage, officer training and tools regarding identifying an individual’s gender identity as well as updated housing placement options.

As far as placement in the facilities, ICE ERO Transgender Care Classification Committee (TCCC) members will be looking at each individual on a case-by-case basis from a safety and security perspective, medical and mental health perspective as well as consultation with the detainee to determine placement. The TCCC question guide will include asking the detainee their preferred name and gender pronoun, any medical issues they might have, hygiene and grooming needs, housing preferences, recreation programming options and who should search them.

While transgender detainees will be able to have housing assignments based on their gender identity for the first time, that doesn’t mean that some transgender detainees won’t still be housed based on their gender assigned at birth, be put in protective custody units or put in medical or administrative segregation units.

“The Transgender Care Memorandum reaffirms ICE’s commitment to provide a safe, secure, and respectful environment for all those in our custody, including those individuals who identify as transgender,” said ICE ERO Executive Assistant Director Thomas Homan. “We want to make sure our employees have the tools and resources available to learn more about how to interact with transgender individuals and ensure effective standards exist to house and care for them throughout the custody cycle.”

In response to the memorandum, the National Center for Transgender Equality, the National Immigrant Justice Center, United We Dream, Immigration Equality, and the Human Rights Campaign have released a joint statement regarding ICE’s updated guidelines.

“We welcome these long-overdue developments but insist that ICE can and must do more to protect LGBTQ immigrants. We stress that the core question here is why so many vulnerable people are imprisoned by ICE in the first place to await immigration court hearings. Earlier this week, the Secretary of DHS stated that the detention of women and children who are seeking asylum was an inappropriate use of agency resources; for LGBTQ individuals, the same logic applies. This community is at the highest risk of rape and assault, and for most there is no compelling reason to justify their detention. Indeed, a recent Center for American Progress report shows that ICE routinely detains LGBTQ immigrants who it knows are at great risk and should not be behind bars. Together with immigrant and LGBTQ communities nationwide, we will continue pressing DHS and ICE to move away from the needless, costly, and dangerous policy of mass detention.”

“ICE’s guidelines finally acknowledges what we’ve known for a long time: transgender people cannot be held safely in detention,” said Raffi Freedman-Gurspan, racial and economic justice initiative policy advisor at the National Center for Transgender Equality. “Though the guidance represents a significant improvement in how transgender immigration detainees will be treated, ICE’s record on implementing guidance such as this is mixed. To really end the suffering transgender detainees face, the Obama Administration must release transgender detainees for whom being in detention makes them a target of sexual assault and violence.”