Being Trans in Texas Prisons: Texas Needs to Do Better

Recently the LGBT legal advocacy organization Lambda Legal settled a case with the Texas Department of Criminal Justice (the agency that administers the penitentiaries in Texas that hopefully will have a positive effect on how Trans prisoners are treated in Texas.

Passion Star was sentenced to a term of confinement in Texas. She is a trans woman. What happened next during her confinement is horrific but all too common. Housed in a male unit yet presenting as (and being, yes, being) a woman, Ms. Star was repeatedly raped and brutalized by the men with whom she was housed.

The stats don't lie. This is the story for trans women in prisons.

The correctional guards and ultimately TDCJ's response was also typical. They ignored her request for help. She also reports that she was re-victimized by CO's who humiliated her and told her to "stop acting gay" if she did not want to be raped.

TDCJ's policy for years, and is currently, to house trans women with men. It does not seem to matter if they have had name and gender marker corrections done to change their gender marker legally to female. It does not seem to matter if they've had any kind of SRS.

Star was also denied secure housing even after the attacks started. Ultimately another prisoner slashed her face with a razor for "snitching".

Lambda Legal said in their announcement that the settlement was agreeable to all parties and also includes a monetary payment for Star and training of prison staff to better protect LGBT people in Texas prison facilities.

My ultimate thoughts on this:

1. TDCJ has agreed to count LGBT inmates much earlier to determine if housing assignments can be made to reduce violence against those prisoners. This is important. However, LGBT inmates should not be "outed" by COs. They should not necessarily be labeled LGBT and then dropped in general population. That idea to protect them may backfire and cause them to be more readily identified by prisoners that will harm them.

2. Special housing is great, and may very well be a solution to the issue. However, segregated custody is not an acceptable solution. Solitary is itself a dangerous, punitive method that an LGBT prisoner should not be subjected to to "keep them safe". Special housing units must also be given the same programming -- substance abuse counseling, mental health treatment, HIV/AIDS treatment, and job training and reentry programming must be made available to all special housing units.

3. TDCJ must stop penalizing gender non conformity. Length of hair requirements, denial of certain hygiene and cosmetic products, and denial of certain items of clothing must end.

4. TDCJ MUST HOUSE WITH GENDER IDENTIFICATION NOT "BIRTH" GENDER. Period. Trans women must go with women. Trans men should be able to choose which housing unit to go to and be allowed to go with men if they choose. (I'm only saying that because trans men may be vulnerable in a male unit. They may also feel vulnerable in female units.)

5. ULTIMATELY -- Texas needs to stop sending so many people, including queer and trans people, to prison. We can safely access alternatives to incarceration. We also need to decriminalize lots of things that queer people may do to survive, including the drug trade, shoplifiting, and sex work.

Its not safe to be trans in this world, but its much more dangerous in prison and TDCJ needs to do better. I hope this is a start.

#queer #trans #lgbt #lgbtq #prison #texas #law #lawyer #gnc#criminaljustice #criminaljusticereform

Romeo and Juliet Defenses: How the Law Still Discriminates Against LGBTQIA couples

"Romeo and Juliet" Defenses: How Texas Law Still Discriminates and LGBTQIA People

Texas House Bill 331, filed by Rep. Mary Gonzalez, is a very important bill that would equalize the "Romeo and Juliet" defenses to sex assault and allow it to be utilized by LGBT couples.

I am going to explain what that defense is and how the Penal Code discriminates against LGBT people.

You may have heard of something in the Texas law called a “Romeo and Juliet” exception to sexual assault.

Texas Penal Code Section 22.01 defines sexual assault as non consensual sex or sex with someone under 17 years of age. However, it also creates an exception we call the “Romeo and Juliet” exception that makes it an affirmative defense against the charge of sexual assault of a person under 17 years of age if the person accused was not more than three years older than the complaining witness (example: a couple 15 and 18 years), the complaining witness was not younger than 14, and the person charged is not a registered sex offender.

However, this exception also required that the person not be barred from marrying the complaining witness. This made incest illegal even under the “Romeo and Juliet” exception, but it also made this exception completely unavailable to same-sex couples prior to the Supreme Court’s decision in Obergefell – the case that made same sex marriage legal nationwide.

This meant that opposite sex couples could use this exception but same sex couples would still be prosecuted!

Now that Obergefell is the law of the land, it is possible same sex couples may make use of this exception. However, for those already in prison it is not clear if they will be able to challenge their convictions.

HOWEVER:

Texas Penal Code Section 21.11 defines indecency with a child as exposure of the genitals or anus of a child under 17 years of age. It is commonly the charge used when an adult has sexual-type conduct with a child but not full intercourse – like fondling of the genitals or breasts that involved removal of the clothing. It makes this conduct a felony.

Section 21.11 also creates a “Romeo and Juliet” exception like the one above – parties not more than 3 years apart in age, the complaining witness not under 14, and the actor not a sex offender.

HOWEVER: 21.11 also makes this exception explicitly available only to opposite sex couples. Same sex couples, in spite of Obergefell and legalization of marriage, cannot – absolutely cannot – take advantage of this exception. That means, until the Legislature amends the law or a court finds it unconstitutional, same sex couples will be prosecuted with crimes under 21.11 (indecency with a child) that opposite sex couples will have a defense to under 21.11!

This is fundamentally unfair to same-sex couples and has no real justification. However, it is unlikely the Texas Legislature is going to amend this law. Any change will have to come from a court.
This is one of the many ways that LGBTQIA people can be treated differently, rather explicitly or subtley, by the criminal justice system. If you are LGBTQIA, you need a lawyer who understands your issues and will defend you competently, with full understanding of the barriers you face because of who you are. I can help.

Call me today.

#criminaldefense #texas #lgbtqia #pride #gay #lesbian #txlege #atx#romeoandjuliet

Trans Day of Remembrance: Trans People in the Criminal System

Today is TransGender Day of Remembrance.  This day is set aside to remember Trans people lost to violence.  To add my voice to the call for safety and equality for Trans people, I want to point out some of the issues that Trans people deal with in the criminal justice system.

Trans people are overrepresented in both the juvenile and adult criminal system.  Trans youth are a high risk of homelessness due to rejection by their families and therefore may resort to survival type crimes to stay alive – things like sex work, theft, and small time drug distribution.  Sixteen percent of trans adults have been incarcerated—this is 5% higher than the cisgender population.  Again, things typically thought to be survival type crimes are common among poor trans adults – things like sex work and drug distribution.  Not only does this put trans people at a high risk of arrest and incarceration but also violence against their persons.

When incarcerated, trans people report higher rates of assault and sex assault.  Perhaps one third of the trans incarcerated population will be assaulted in some way.  Because of this, jails and prisons should reform their policies to allow trans peope to stay in the unit that they feel is most gender affirming. Jails and prisons should not simply use the sex assigned at birth to determine unit housing for trans people.

Texas Department of Criminal Justice took a radical step forward – finally – in 2015 and allowed for inmates experiencing gender dysphoria to undergo hormone replacement therapy while incarcerated and to live as their true gender.  This means that trans people who go to prison in Texas will not have to gender conform due to regulations and should not have an interruption in their HRT.

The standard of care for Trans people and also our common sense of decency and fairness toward all people demand that Trans people be treated with full equality and be allowed to express their true gender identity regardless of their involvement with the criminal justice system.  They should not be forced to conform to their gender assigned at birth by judges, probation officers, or prison administrators.  Also, we should work to end policies that make it more likely for Trans people to resort to small time, petty crimes for survival purposes that make them vulnerable to arrest and violence. 

We mourn the losses of Trans people and call for universal respect for Trans people and an end to violence. 

LGBT Stereotypes and Criminal Convictions

There are very complex issues surrounding LGBT people in the criminal justice system. 

Stereotypes about gay people can lead to them being overcriminalized and convicted of crimes that they did not commit.  Because for hundreds of years, being gay was considered an abberation and an abnormality, it was often (and still is in some jurisdictions) used by the prosecution to show that the gay person is also prone to other types of abnormal, and criminal, behavior. 

Two examples of this:

In the 1970s in Tyler, Texas (Smith County), Kerry Max Cook was convicted and sentenced to death for the murder of Linda Jo Edwards.  The prosecution’s theory of the case was that Kerry, a suspected but not “out” gay man, had watched a movie tht had inspired him to fly into a “gay rage” and that drove him to murder a woman. The prosecution said at his trial that gay men hated women and that was evidence that he had murdered this woman.  He was exonerated 30 years later and released from death row after coming within days of execution several times.  You can read more about Kerry here: https://en.wikipedia.org/wiki/Kerry_Max_Cook

In 2000, four women in San Antonio TX (Bexar County) were convicted of sexual assault of two young women.  They were sentenced to between 15 and 37 years for this assault.  They maintain their innocence.  They are lesbians, and the prosecution in their cases cited their lesbianism as the driving cause of the assault.  They are fighting to be exonerated of these crimes. You can learn more about them here: https://www.texasobserver.org/mystery-san-antonio-four/

The state can sometimes seek to use a person’s sexuality as a tool to make a jury suspicious and biased against a Defendant.  Especially in child sex cases or sex assaults, the state can seek to connect the sex abuse to the person’s same-sex orientation as a motivating factor for the crime.  People have grave misunderstandings of what it means to be gay, and the prosecution can use that misunderstanding to get convictions by playing on stereotypes of LGBT people.

It is vitally important to LGBT people charged with crimes that they have an attorney who will push back against these stereotypes.  Gay people aren’t any more prone to violent crimes, assaults, or sex crimes than anyone else and may even be less likely to commit these kinds of crimes.  We have to fight back against these attempts to use stereotypes to convict LGBT people and make up for lack of evidence. I defend gay people and make the prosecution, judges, and jury understand that we are more often victims rather than perpetrators.