WDI USA’s Second Round of FOIA Requests to Women’s Prisons
In 2021, WDI USA volunteers sent FOIA requests to every women’s state prison in the US to inquire about the exact number of male inmates being housed in each of them. The results have been used by journalists around the country and around the world to report on this blatant violation of basic human rights. Those 2021 results can be accessed here.
In April of 2023, we decided it was time to do it again. More men have been using state laws and policies that contain convoluted definitions of sex to gain access to the women’s facilities on the basis of their supposed ‘female gender identities.’ For this reason, the 2021 numbers were likely to have grown. This time, not only did we request the numbers, we also requested the entirety of the policy documents that states are currently using to determine which and how many inmates will be housed in the women’s facility based on their ‘female gender identities.’
The policy documents are also violative of basic human rights, and not many states were forthcoming with the numbers. In addition, we have reason to question the numbers the states provided. For example, New Jersey told us there were 10, but we know from the great reporting at the feminist publication Reduxx that the number was 27 last year; it’s possible that some of those men were transferred back to the men’s facility or released, but it seems unlikely that 17 of them were. Minnesota told us that the number was zero, but we know that earlier this year, a man named Christina Lusk won a settlement with the state of Minnesota to have him placed in the women’s prison. While incarcerated in a men’s facility on drug-related charges, he sued to be transferred to the women’s prison on the basis of his claimed woman identity. Under the terms of the settlement, the state agreed to transfer him to the women’s prison, use taxpayer dollars to fund his cosmetic genital surgery and pay him $495,000 in legal fees and damages. Lusk was arrested in 2018 and is serving a sentence until 2024 for a felony drug offense. If we had the resources to take them to court over it, we could work to compel them to answer our FOIA requests. In itself, their refusal to answer is telling.
You can use the map below to find out what information each state was willing to share with us.
The Questions We Asked
- Please provide any written policy regarding the protocols for state prison inmate housing based on “gender identity” or “transgender status”.
- What is the total number of natal male state prison inmates (i.e. “biological males,” “male-identified at birth,” etc.) currently held in [STATE’s] women’s prison(s) based on “gender identity” (i.e. based on being “transgender”, “non-binary,” etc.)?
The Responses
Number of males currently housed in a women’s facility or unit, by state:
(hover over each state to see the number)
Note: If you reside in a state without a resident volunteer and would like to contribute to this project, you can submit a volunteer application to us. We’d appreciate your help!
Summary
Through recent FOIA requests, WDI USA has obtained state prison policies and procedures specific to offenders who claim a “transgender”, “non-binary”, or intersex identity. Thirty-seven policies (71%) were received in response to FOIA requests. A more detailed breakdown of the information by state can be found by clicking the buttons below.
State policies largely determine “transgender”/”non-binary”/DSD status during intake screening, allowing offenders to self-identify through risk assessment, evaluation, or questionnaire (92%). Additionally, offenders are given the option to disclose “transgender” status at any point during incarceration. While many state policies require a medical and mental health evaluation following disclosure (56%), this requirement is not consistent throughout all state prisons.* It should be noted that 78% of policies submitted classify offenders diagnosed with a Disorder of Sexual Development or who claim an intersex identity in the same category as offenders who self-identify as “transgender”, “non-binary”, or gender non-conforming.
Standards and requirements for diagnosis of gender dysphoria were only addressed in 51% of policies received. Diagnosis of gender dysphoria is typically framed as a prerequisite for obtaining medical treatment, to include hormone replacement therapy and surgical interventions. Few states required it as a condition of confirming “transgender” or “non-binary” status (11%) or as a condition for approval of transfer requests (8%).
Housing transfer requests of offenders who claim a “transgender”, “non-binary”, or intersex identity are considered on a case-by-case basis by that particular state’s Department and/or internal committee. Considerations include the health and safety of the offender (serious consideration given to offender’s own perception of safety), security concerns, criminal history, medical and mental health needs, vulnerability to sexual victimization, likelihood of perpetrating sexual abuse against others, and “gender identity” and expression. While criminal history is listed as a consideration factor for evaluating transfer requests, there are no specific prohibitions for offenders with a history of violent or sexual offenses. The policies often place great emphasis on the safety of male offenders who claim a “transgender” identity, but do not give the same consideration to the personal views and safety of the incarcerated females they would be housed with.
* The following states have not provided a policy in response to the FOIA requests: Alabama, Connecticut, Delaware, Washington D.C., Florida, Georgia, Kansas, Louisiana, Maryland, Massachusetts, New York, Ohio, Oklahoma, South Dakota, Tennessee, and Utah.
** In response to our FOIA request, the Federal Bureau of Prisons reported a total of 9 males who self-identify as women currently housed in facilities intended for females. In response to their own FOIA request, Keep Prisons Single Sex USA received a current ‘Transgender Inmate Report’ from the Bureau of Prisons, the analysis of which revealed the following:
• As of Aug. 2023, there were 1980 trans-identifying people in federal prison (1295 “M2F” and 685 “F2M”).
• While 12.2% of all federal inmates are incarcerated for sex offenses, 47% of incarcerated trans-identified men in federal US prisons are incarcerated for sex offenses (almost 4 times the rate of the general prison population).
• Trans-identified men in federal US prisons are classified at the “high” security level at 3 times the rate of the general prison population.
