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

Former Foster Care Children in the Criminal Justice System: A Problem in Need of a Just Solution

Former Foster Children in the Criminal Justice System:  A Problem in Need of a Just Solution

                I have represented several former foster children in my work as a defense attorney.  I have found that for many former foster children, their experience with the criminal justice system started as a juvenile and continued on into adulthood.  We as a society need to find better solutions to help children and families in crisis so we can keep vulnerable children from entering the adult system.

                California officials did a study of adults in their prisons and found that 14% of those surveyed had been foster children.  Washington did a study and found that 1 in 5 foster children were arrested and jailed within a year of aging out of the system.  Texas, however, apparently has not done the work to find out just how severe the problem is of former foster children experiencing the criminal justice system.

                It makes sense.  Foster children have often been traumatized.  They may have developmental delays, intellectual disabilities, and mental health issues.  They may have missed weeks upon weeks of school.  This makes them especially vulnerable to substance abuse and early affiliation with criminal gangs.  

                Foster children are also vulnerable to homelessness.  Foster kids “age” out of the system at 18.  Some states have “extended” foster programs and allow children to stay sometimes until age 21.  Texas does not have these provisions.  On their 18th birthday, foster children have to find a place to go as their foster families no longer have an obligation to them and neither does the state.  Some kids have no place to go and end up on the streets.  Homelessness is a huge indicator for involvement in the criminal justice system.  Survival crimes, like theft, drug distribution, and prostitution, may be a last resort for homeless former foster kids.   This leads to incarceration.  Some become homeless even prior to aging out as they run away from careless or abusive foster families or group homes.  LGBT youth in the foster system are particularly apt to run away from foster families who reject, kick them out, or abuse them for their sexuality and gender identities.  It is thought that 15% of the juvenile justice system is LGBT youth.

                What can be done? 

                Policy makers and legislators need to focus attention and funding to foster kids and fixing the system while at the same time providing support to families in crisis so that children can remain in homes that can be rehabilitated.  We need to get parents mental health services and substance abuse treatment so that they can stay with their children.  When that cannot happen, the state needs to be able to provide children with safe, supportive homes.  The state needs to ensure LGBT kids are placed with homes that will support them and care for them completely.

                We need to do something about children aging out. We need to provide “extended” placements in Texas as other states have done.  We need to provide transitional housing to kids who are aging out to prevent them from becoming street kids at the age of 18.  We need to provide job training, education opportunities, and mental health treatment to foster children before and after their 18th birthday. 

                If and when former foster kids are charged with crimes, we need to provide special programming and court dockets for them to get support and rehabilitation in a setting that recognizes their special issues.   For example, in Travis County we have “Project Engage” in which young adults who are on probation or on bond get a supportive environment to hear from speakers, do community service, and get support to work and go to school.  We need more programs like this for young adults.

                Lastly, we need to raise the age for the adult system to 18 in Texas.  Children under 18 do not have the mental capacity to make responsible choices as adults do, and they should not be held to the same standards.  Juvenile courts have their own problems, but they do tend to focus more on rehabilitation and reform than punishment.  Raising the age will help keep some foster kids and former foster kids from entering the adult system.  A bill to do just this was given a hearing in the Texas House but it did not get voted out by the entire chamber.

                We need to do better for our foster kids.  These kids have been victims of extreme hardship and bad circumstances not of their doing whatsoever.  We need to give them protection and opportunity to flourish and stay out of the criminal justice system.

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

SB 6: Limiting Access to Justice

Senate Bill 6 is being heard in committee tomorrow.  I wanted to add some thoughts to this discussion.

Senate Bill 6 would mandate that public buildings, including government buildings, require people using the facility to use the bathroom corresponding to the gender assigned at birth and placed on the birth certificate.

I represent lots of LGBT people.  Those whom I represent that are accused of crimes, guilty or not, are required to appear before the court presiding over their cases.  This requires their presence in a government building, the county courthouse, which would be covered by this bill.  My clients would be forced to use a bathroom corresponding to the gender assigned at birth while attending court.

My clients do not have a choice to come in the courthouse.  They must or risk consequences.  They do not control how long they will be in that building --- they are not allowed to leave until they are excused by the court.

My clients would be faced with an untenable position – go into a bathroom in which they are not comfortable, do not appear to belong in, and may indeed face real danger in; do not use the bathroom at all; or face consequences for using the “wrong” restroom.

If my clients have to make this choice, it is going to severely limit their abilities to defend themselves from criminal accusations.  They will want to limit the amount of time in court – which means they may not want an extensive plea bargaining process, and they definitely will not want to elect for a trial in which they will have to spend hours upon days in the courthouse in which they will inevitably have to go to the bathroom.

If you do not have sympathy for criminal defendants, think of the witnesses, including the complaining witnesses.  A person should not have to drop charges against someone who has victimized them because going to testify at a county courthouse will involve them having to go into a bathroom in which they do not feel comfortable.  I believe this will limit trans people from seeking justice.

Ultimately, this bill is going to limit access to justice by making courthouses very inhospitable to trans citizens, who should enjoy the same rights to defend themselves or seek justice against people who have victimized them as anyone else.

I ask the committee to refrain from passing this bill out of committee.