WASHINGTON — The Justice Department took a new position this week in support of the rights of transgender people in prison and sent a signal that the Biden administration is moving away from Trump administration policies that rolled back legal protections for LGBTQ individuals.
Late on Thursday, the DOJ filed what’s known as a “statement of interest” by the US government in a lawsuit from Ashley Diamond against the Georgia Department of Corrections. Diamond, a transgender woman, says that she has been sexually assaulted more than 14 times in men’s prisons since her incarceration in 2019 and is accusing prison officials of knowingly putting her in danger of sexual assault and harassment by refusing to house her in women’s facilities in violation of her constitutional rights; she’s also alleging that they’ve failed to treat her gender dysphoria.
The federal government isn’t a party in Diamond’s case, but the Justice Department weighed in to express that the US’s official position is that a refusal by prison officials to assign people to facilities that correspond with their gender identities even if a risk assessment shows it would make them safer violates the Eighth Amendment, which prohibits “cruel and unusual punishments.” It’s also unconstitutional for prison officials to fail to provide individualized treatment for gender dysphoria, DOJ attorneys wrote.
The brief is focused on the constitutional rights of transgender people who are incarcerated — and the underlying case is only about the Georgia state prison system — but the DOJ lawyers and officials who signed off also included sweeping language about the federal government’s role in protecting the rights of all LGBTQ people.
“The United States has an interest in ensuring that conditions of confinement in state and local correctional facilities are consistent with the Constitution and federal law,” the DOJ lawyers wrote. “The United States also has a strong interest in protecting the rights of lesbian, gay, bisexual, and transgender individuals.”
The brief in the Georgia case was filed by the Special Litigation Section of the Justice Department’s Civil Rights Division, the same office involved in the newly launched probe into whether Minneapolis police have exhibited a pattern of civil rights violations and abuses, following the murder of George Floyd; Attorney General Merrick Garland announced that investigation on April 21, the day after a jury found former Minneapolis police officer Derek Chauvin guilty. The filing in Georgia, which also involves the US Attorney’s office for the Middle District of Georgia, comes a few weeks before a judge is set to hear arguments on Diamond’s motion for a preliminary injunction against the state.
DOJ lawyers quoted an antidiscrimination executive order that President Joe Biden signed on his first day in office, saying that it “recognizes the right of all persons to be ‘treated with respect and dignity’ and to ‘be able to live without fear’ regardless of their gender identity or sexual orientation.”
Sharon McGowan, chief strategy officer and legal director of Lambda Legal, an LGTBQ civil rights group, said that beyond expressing strong support for the rights of transgender people and a commitment to making prisons safer for the LGBTQ community, the latest brief signaled the new administration’s priorities “in using the legal and moral authority it has to protect the safety of all of its citizens.” McGowan served as a senior official in the Civil Rights Division under former president Barack Obama.
“Having this statement of interest go out in the same week where we see the Justice Department calling for an investigation of the Minneapolis Police Department may have been coincidental, but really should be viewed as connected,” McGowan said. “What we’re seeing from the Justice Department is a real repudiation of the ethos that ... Jeff Sessions brought when he was attorney general, as though law enforcement and the criminal justice system was beyond the reach of the Justice Department with respect to civil rights.”
Diamond’s legal team at the Center for Constitutional Rights and the Southern Poverty Law Center released a statement saying they were “encouraged” by the Biden administration’s decision to jump into the case.
“In essence, the DOJ confirms that when it comes to Ms. Diamond — who alleges repeated sexual assaults, including by prison officials, and ongoing denial of adequate medical care — the U.S. Constitution is on her side,” Diamond’s lawyers said.
A spokesperson for the Georgia Department of Corrections wrote in an email that the department does not comment on pending litigation.
Biden pledged during the campaign to undo Trump administration policies that scaled back or eliminated federal protections for LGBTQ people, including a promise to reinstate language adopted by the federal Bureau of Prisons under Obama that instructed officials to consider gender identity in making prison assignments. In May 2018, the Trump administration adopted a revised version of the Bureau of Prisons’ Transgender Offender Manual that instructed officials to use “biological sex” in making the initial facility assignments and stated that assignments based on gender identity “would be appropriate only in rare cases.” The previous administration changed the manual after four women in a Texas prison, represented by the conservative legal advocacy group Alliance Defending Freedom, filed a lawsuit challenging the Obama-era language and alleged that being housed with transgender women created dangerous conditions.
Biden’s campaign website included a section that committed to revising the Transgender Offender Manual to reinstate the earlier language, but that hasn’t happened yet. A White House spokesperson and the BOP didn’t immediately return requests for comment about whether any changes were expected.
Diamond has been incarcerated since 2019, following a parole violation, according to the lawsuit she filed in November 2020 in the federal district court in Macon. She’s alleging that state prison officials placed her over the previous year in men’s prisons, where she had been sexually assaulted more than a dozen times and faced harassment and abuse from prison officials and other incarcerated people. Diamond is also alleging that the prison system failed to properly treat her gender dysphoria, putting her physical and mental health at risk.
It’s not the first time that Diamond sued the Georgia correctional system over its treatment of transgender people. A lawsuit she filed in 2015 — when she was previously incarcerated for a nonviolent offense — led the state to change its policies surrounding medical care for transgender people; Diamond was then released on parole. Shortly before state officials announced the policy change in 2015, the Justice Department had filed a statement of interest in the case arguing that a prison’s failure to provide “individualized and appropriate medical care” for gender dysphoria violated the Eighth Amendment.
DOJ’s new brief states that the Constitution requires that prison officials must give “due consideration” to the risks that a transgender person faces in deciding what facility they should be assigned to.
“[A] failure to ever house transgender prisoners in housing that corresponds to their gender identity suggests that the requisite screening and assessments are either not taking place or are so inadequate as to be entirely ineffective,” the DOJ lawyers wrote.
The Obama Justice Department also opened an investigation into the Georgia Department of Corrections in February 2016 focused on whether the state protected LGBTQ people in state prisons from sexual assault and harassment. That probe, which involves attorneys from the Civil Rights Division as well as the US Attorney’s offices in Georgia, is still open, a fact that DOJ lawyers noted in the latest brief.
This post was updated to include additional information about the 2018 change to the Transgender Offender Manual.