Flexibility to be Fair

Under Commissioner’s Directive 800, a prisoner has to have completed a year of his or her RLE at the time of their incarceration in order to even be considered for surgery. This means that if a transgender individual enters prison after only completing eleven or ten months of their RLE, they will not even be considered for SRS during their sentence. As we’ve discussed in previous blogs, the RLE is in itself a discriminatory practice that should be revised and/or optional, however until that happens it is still a requirement for transgender inmates who want to have SRS. Yet currently the policy only applies to transpeople at a certain point in their transition and excludes all others.

Those at an earlier stage of their transition can continue to take hormones but will be stuck in that stage of transitioning until their release, regardless of how long their sentence is. This is not only inequitable but can also prove to be dangerous. Transgendered prisoners faced with the refusal or option of surgery are likely to attempt to further their transformation themselves. Examples of this in prison are usually stories of self-castration and mutilation of testicles or breast (http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1206&context=lawfaculty). There needs to be some flexibility in length of RLE before incarceration in order to give all transgendered inmates an opportunity at a successful transition.

The goal of flexible standards would be to allow the transgender individual either to continue the RLE while imprisoned or to be evaluated for surgery when they feel prepared, regardless of whether they have completed a full year of the RLE prior to incarceration. Recommendations for this would include allowing self-determination for preparedness for surgery, given the unique nature that transgendered prisoners are in; their incarceration is not necessarily a reflection on their abilities to pass the RLE. This essentially gives back some of the power to transgendered inmates instead of rendering them helpless.

Another important proposal is that the transgendered inmates be allowed to use the doctors or specialists that have worked with them on the outside as references. Since they are the ones that have been with the transgendered individual throughout their transition, they are likely the best judge, along with the inmate, as to their readiness for surgery. By putting the specialist in the prison in touch with the individual’s doctors, they are given a better insight into their lives and motivations to want surgery. This communication will be a key in ensuring that transgendered inmates get a fair chance to transition from a body that feels foreign to them.