Published June 26, 2024
The Biden administration seems completely preoccupied with gender ideology, to the point that even Americans of liberal views should be asking whether hard-won civil liberties are in danger. As part of Pride Month, high-ranking officials have promised to bring “all resources to bear” in the fight to advance LGBTQI+ interests. But what the executive branch leaves unsaid is that its disproportionate, not to say obsessive, concentration on transgender issues threatens other rights that are specifically guaranteed under federal law—such as those of incarcerated women.
As former attorneys in the Civil Rights Division’s Special Litigation Section, we are especially concerned about the administration’s selective enforcement of the Civil Rights of Institutionalized Persons (CRIPA) Act to the detriment of these women.
Some background: On his first day in office, President Joe Biden issued an executive order directing all federal agencies to review, revise, suspend, or promulgate rules and guidance to infuse sexual orientation and gender identity into the legal concept of discrimination based on sex. Agency heads were directed to consult with the attorney general as they hatched their plans.
Pursuant to this directive, federal agencies have issued a smorgasbord of gender identity edicts. Employers must “affirm” gender identity at work through “preferred pronoun” speech codes and permissive bathroom policies. Title IX, the law that demanded equal opportunity for women in education including in school sports, is being dismantled. Doctors must perform and insurers pay for so-called “gender transition” procedures. Federal grants to foster care providers will now depend on their willingness to affirm a child’s LGBTQI+ identity and facilitate “gender transitions.”
No one in the administration seems to consider the possibility that its unblinking obsession with transgender rights is eroding other civil rights, such as CRIPA, the law protecting imprisoned persons.
The Civil Rights Division’s Special Litigation Section has the responsibility to enforce CRIPA by investigating state institutions and bringing civil suits to protect prisoners’ rights—including their right to be protected against sexual abuse.
In 2020, the section opened a CRIPA investigation at a New Jersey corrections facility for women in order to make sure prisoners were protected from sexual abuse by facility staff. Pursuant to a settlement agreement with the ACLU, New Jersey adopted a system-wide policy to house prisoners according to their gender identity, not their sex. About a month later, the section entered into a settlement that closed its investigation. Within a year, inmates were reporting instances of sexual assault by trans-identifying prisoners. One of them had impregnated two women in the prison. Incredibly, although the settlement requires the facility to “ensure that prisoners are protected from harm due to sexual abuse and sexual harassment,” the section has taken no action to reopen its investigation or enforce the settlement’s terms.
In 2021, the section filed a Statement of Interest in a case brought by the Center for Constitutional Rights and the Southern Poverty Law Center warning Georgia prison officials that housing male transgender prisoner with other males could violate the state’s constitutional obligation “to protect prisoners from sexual abuse.” That same year, the section opened a statewide investigation of Georgia prisons that included the treatment of transgender prisoners.
Is anyone at the Justice Department concerned about the safety and well-being of female prisoners who are housed with trans-identifying men? They should be.
In California, for example, a trans-identifying convict with a “lengthy record of criminal violence” was transferred to a women’s prison and has now been indicted for raping a female inmate in the shower. The prisoner was initially transferred to a women’s prison thanks to California’s Transgender Respect, Agency, and Dignity Act, which requires that incarcerated transgender people be classified and housed based on their “sense of health and safety, which may or may not correspond with their gender identity.” To quote Hector Bravo, a former corrections officer: “I was initially hopeful that the new policy would provide necessary protections and accommodations for inmates who identified as transgender.” What he saw instead was “a system rife with negligence and disregard for both inmate safety and the well-being of correctional staff.”
Consider this astonishing detail. Instead of protecting women from being sexually assaulted by prisoners with penises, California’s women’s prisons are passing out condoms.
Most assaults in prison don’t make headlines. We have every reason to believe these stories are just the tip of the iceberg. We call on the Civil Rights Division’s Special Litigation Section to launch investigations of states that are housing biological males in women’s prisons. Put simply, it is unjust and unconstitutional for the administration and state officials to put a greater priority on gender ideology than on keeping incarcerated people safe.
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s HHS Accountability Project.
