DOJ issues trans-friendly prison statement

Ashley Diamond (Screenshot from Southern Poverty Law Center Youtube page.)

On April 22, the U.S. Department of Justice filed a court document supportive of Ashley Diamond, a trans inmate in Georgia who’s trying to be transferred to a women’s prison. The document says prison officials must keep trans inmates safe from substantial risk of harm and provide them with proper medical care.

The case is assigned to U.S. District Judge Marc T. Treadwell of the Middle District of Georgia. He’s scheduled to preside at a hearing on May 12 in Macon, Ga., regarding Diamond’s request for a transfer to a women’s facility.

In a 19-page “statement of interest,” the DOJ said it’s not taking a position on the facts of Diamond’s case. But the agency noted the U.S. Constitution “requires prison officials to conduct individualized assessments that lead to reasonably safe conditions of confinement and adequate medical care for all prisoners.”

The DOJ also notes that prison officials violate the law when “categorically refusing to assign transgender prisoners to housing that corresponds to their gender identity even if an individualized risk assessment indicates that doing so is necessary to mitigate a substantial risk of serious harm, and [by] failing to individualize the medical care of transgender prisoners for the treatment of gender dysphoria.”

Attorneys at the Southern Poverty Law Center and the Center for Constitutional Rights are representing Diamond in her quest to be transferred to a female prison. Her lawsuit, filed in November 2020, says prison officials failed to protect her from repeated sexual assaults in a men’s prison and failed to provide her adequate medical treatment for her gender dysphoria.

Chinyere Ezie, senior staff attorney at the Center for Constitutional Rights, praised the DOJ’s statement.

“The DOJ’s statement is going to be tremendously impactful — not only for Ashley Diamond, but for trans people incarcerated throughout the country,” Ezie told PGN. “It states that transgender people in prison deserve safety as well as health care under the Constitution. It’s persuasive authority. It explains what the Constitution requires.”

Ezie said Diamond, 43, continues to be abused in prison. “Since our lawsuit was filed in November, Ashley has been the victim of retaliation in the prison by guards,” Ezie said. “She’s still in a men’s prison where she suffers abuse and attacks. She’s been assaulted by other inmates. And now, instead of taking steps to keep her safe, prison officials are looking for excuses to retaliate against her and to punish her for her advocacy.”

Ezie said Diamond may be incarcerated for one more year. “Due to retaliation, Ashley could be in prison as late as April of next year,” Ezie added. “That’s why it’s so imperative that she be transferred to a women’s facility. We have a hearing on May 12 with Judge Treadwell, where we will request to have Ashley transferred to a women’s facility. We worry about Ashley’s safety in a men’s prison everyday. There are a number of women’s facilities available. We don’t have a request for a specific facility. We just want the Georgia Department of Corrections to start treating Ashley like the woman she is.”

Beth Littrell, senior staff attorney at the Southern Poverty Law Center, echoed Ezie’s comments.

“That the DOJ chose this case — and to take a very clear and bold position in favor of trans inmates’ rights — is very significant,” said Littrell. “In essence, the DOJ is stating that the interests of the United States are aligned with the interests of transgender incarcerated people to be safely housed and adequately treated. So I’m cautiously optimistic that the Court will agree, and order Ashley transferred to a women’s facility where she should have been housed all along.”

Littrell added: “It’s not a vague statement about the right to safety in prisons generally. It specifically addresses the vulnerabilities of transgender people in prison and their right to be individually assessed in both housing and medical care — flatly rejecting any blanket ban on housing trans inmates based on birth-sex or surgeries or on  gender-affirming accomodations as unconstitutional. It also emphasizes President Biden’s commitment to LGBT equity.”

Thomas W. Ude, Jr., legal and public policy director at Mazzoni Center, said the DOJ statement was necessary.

“Sometimes it is necessary to state the obvious,” Ude said, in an email. “The DOJ’s ‘statement of interest’ in Ashley Diamond’s lawsuit should not have been necessary. But it is, because many prison officials ignore trans prisoners’ gender identity. The cases that DOJ relied on are not new. Prison officials have known for decades that housing a trans woman in a men’s prison creates safety risks that prison officials may not Constitutionally ignore. And prison officials may not disregard the medical needs of trans prisoners for gender-affirming treatment. Like Ashley Diamond, many other prisoners endure mistreatment because they are trans. That violates the Constitution. This ‘statement of interest’ shows that there is a new sheriff in town. It is an extra warning that officials must respect trans prisoners’ safety and gender — without making a federal case out of it.”

Since October 2019, Diamond has been incarcerated in various men’s prison facilities due to a parole violation. Diamond has been sexually assaulted multiple times, including by staffers of the Georgia Department of Corrections. Her experience has been so traumatic that Diamond has attempted suicide, according to the lawsuit.

Diamond’s lawsuit alleges that housing her in a men’s facility is “cruel and unusual punishment,” because it has put her at risk for repeated sexual assaults. Moreover, refusing to house trans women like Diamond in female facilities allegedly violates the constitutional right to equal protection under the law.

In 2019, Georgia adopted a new policy for the “Classification and Management of Transgender and Intersex Offenders” that’s supposed to make placement decisions on a case-by-case basis, give serious consideration to a trans inmate’s personal views regarding safety, provide inmates with the opportunity to shower separately, and reassess their placement after any incident of sexual abuse.

But according to Diamond’s lawsuit, the policy is on paper only. In reality, GDC officials make housing decisions based solely on an inmate’s assigned sex at birth, and penalize trans inmates for “perceived gender-nonconformity.”

A GDC spokesperson had no comment for this story. A spokesperson for the Biden administration also had no comment.