I have, until now, mostly held my tongue about the incident in the White House involving Jennicet Gutiérrez, other than adding a link to my diary, Free Nicoll after someone wondered why there had been no important diaries on the immigrant detention of transgender women.
Miraculously, ICE released a memo yesterday urging agents and facilities to respect transgender detainees and directing staff to house transgender immigrants in housing that corresponds with the detainee's gender identity rather than sex at birth.
That's a shift from long-standing ICE (and general prison) policy, which often sees transgender women housed with men, where they face a starkly elevated risk of sexual assault and harassment.
ICE's memo offered guidance on how to determine a detainee's gender identity, then subsequently house the individual in housing with other women or men, depending on the immigrant's gender identity. The memo indicates that ICE employees will be provided a script with questions to ask individuals whose gender expression may "appear to indicate a gender different from the sex listed on the detainee's identity documentation." Data systems will also be updated to allow officers to record or update a person's gender identity.
Detention staff should consider transgender detainees' preferences when making decisions about housing and clothing and what pronouns should be used, Immigration and Customs Enforcement said in new guidelines for the treatment of transgender detainees.
ICE will allow for the placement of a transgender woman consistent with their gender identity, meaning that a transgender woman could be with biological females.
--Andrew Lorenzen-Strait, ICE deputy director of custody programs
DHS firmly states that the new memo is the result of a report from a working group, with "subject matter experts, [who] sought input from transgender individuals, and visited various non-federal facilities across the country to observe best practices." which spent six months looking into the issues faced by transgender immigrants seeking asylum.
A guidance document cannot be expected to change the fact that DHS and ICE have consistently failed at maintaining a minimum of safety and dignity for transgender immigrants.
--joint statement of the #Not1More campaign and member groups Familia:Trans Queer Liberation Movement, Transgender Law Center, GetEQUAL and Southerns on New Ground
The activists claim the guidance "still allows for practices that have been denounced as inhumane — including administrative segregation, 'protective custody,' and isolated pods — as adequate forms of housing for transgender individuals. Every one of these practices has failed to protect transgender immigrants, particularly women, from rape, sexual and physical abuse and dangerous living conditions in detention."
The guidelines released by ICE don't go far enough.
--Cristina Jimenez, United We Dream
DHS is incapable of protecting LGBTQ immigrants, who experience sexual assault and rape at much higher levels while in detention.
Studies have shown that ICE has routinely detained LGBTQ immigrants who it knows are at great risk and should not be behind bars.
--Carlos Padilla, United We Dream
This is all interesting on paper, to say the least, but we need to see how this actually plays out, We don't think these folks should be in detention centers, period.
--Raffi Freedman-Gurspan, National Center for Transgender Equality
The guidance comes three years after the Department of Justice issued similar rules for transgender inmates. But even now many jails and prisons aren't following the rules and continue to house transgender inmates based on their genitalia or place them in solitary confinement purportedly "for their protection."
Most prisons and jails are still in the Dark Ages about these issues.
Getting the rules put into practice may be tough for immigration officials, who house most detainees at contract facilities.
--Carl Takei, ACLU National Prison Project
It is estimated that ICE currently has about 60 transgender detainees. About 25 of them are housed in a special unit in Santa Ana specifically for transgender women and gay men. The balance are spread across the country and housed according to a genital rule.
Those who are transgender should be placed appropriately, and if they are transgender female they should not be placed with men.
It’s an inappropriate identity classification, and even then, people still have to be overseen as to [prevent] abuse and being picked on ... being bullied because bullying will happen among all classification of people.
--Rep. Honda
Given the population's small numbers and increased risk, transgender immigrants should be offered alternatives to detention.
When you're thinking about who should absolutely be released, pregnant women, people with severe health problems, transgender individuals, there are certain populations that weigh so heavily in favor of release that it is dumbfounding the knee-jerk reaction is always to detain.
It's not in anyone's best interest.
--Aaron Morris, legal director of Immigration Equality
In practice, this could become a double standard for transgender individuals that seems unprecedented.
Jessica Vaughan, Center for Immigration Studies, which favors enforced incarceration