Why Men Are Housed in Women's Prisons

In 2003, Congress tried to protect white men from rape

“It does require training of staff and education of the inmates in that facility.”

–The Experts

Congress passed the Prison Rape Elimination Act (PREA) unanimously in 2003. It was a triumph of bipartisanship, as lefty human rights activists teamed with conservative Christians and pragmatic corrections officers to protect vulnerable inmates. Campaigners described the victims they had in mind as small, young white men.

PREA said nothing about trans. But it left a lot of details to be filled in by the agency that would administer it, the Department of Justice. DOJ, it turned out, had a lot to say about trans. 

DOJ relied on “the data” to set rules about where trans-identified men should be housed, including the vast majority of them who had not undergone genital surgery. The data showed these men were often victims in men’s prisons. The data on how women fared when locked down with criminal men? It didn’t exist.

So DOJ focused on protecting the men. In 2012, it issued regulations that encouraged housing prisoners according to gender identity. Federal prisons soon started doing that; state systems have fallen in line in the last five years.

In this post I’ll show you how depraved men ended up in women’s showers. Then I’ll survey the national landscape to see how PREA and trans-inclusive state laws are playing out on the ground. I’ll argue that callousness toward female inmates is a bipartisan blight. Finally I’ll expose what “the experts” say about all this from the comfort of their offices.

Terminology: I use the term “prisoners” throughout to refer to inmates held in various forms of detention, including adult prisons, juvenile facilities, and local jails. PREA applies to all types of lock up.

Activists and Media Frame the Problem

The 1990s saw a surge in activism for the worthy cause of ending sexual assault in prison. The campaign mostly focused on men targeted by their fellow inmates, with some side discussion of women assaulted by male guards (women comprised less than 7% of the prison population in 2003). The message: rape of puny white men was pervasive. 

“The Rape Crisis Behind Bars” (New York Times, 1993)

The New York Times published an op-ed by activist Stephen Donaldson in 1993:

“Twenty years ago, I was gang raped while in jail on a charge for which I was later acquitted. (I was arrested for participating in a Quaker ‘pray-in’ at the White House to protest the bombings in Cambodia.) I soon learned that victims of prison rape were, like me, usually the youngest, the smallest, the nonviolent, the first-timers and those charged with less serious crimes.

“If a prisoner is middle-class, not ‘street-wise,’ not affiliated with a gang, not part of the racial or ethnic group that dominates his institution or held in a big city jail, he is likely to be a target.”

Donaldson asserted that over 22% of male prisoners were “sexually assaulted” each year. In 2009, the DOJ would find that 4.5% of prisoners “experienc[ed] sexual abuse” (including touching) in the year preceding its survey. 

Donaldson did not mention trans people.

Farmer v. Brennan (US Supreme Court, 1994)

In 1994, the US Supreme Court ruled that prisons were responsible for protecting inmates from assault. Allowing prisoners to be raped, the Court reasoned, was a violation of the Constitution’s Eighth Amendment guarantee against cruel and unusual punishment. The plaintiff – represented by the ACLU – was an MTF who’d been raped in prison. The decision became a touchstone for human rights.

Oz (HBO, 1997)

One of the earliest prestige TV shows was HBO’s Oz, about a men’s prison. You couldn’t pay me to watch Christopher Meloni growl at people shirtless, but google tells me the show featured at least two MTF inmates and copious rape. This probably raised the consciousness of the well-off liberals who subscribed to HBO in the 90s.

“Brutality Behind Bars” (2001)

The conservative publication World didn’t mince words in its 2001 story on prison rape:

“Shortly after he arrived [at a Texas prison], John – a 140-pound white man – was viciously gang-raped by black inmates.

“The experience left John with a burning hatred for African-Americans. A gang of white supremacists – who had reportedly asked guards to put John in the black section of the prison – now encouraged him to join them in exchange for protection.

“Upon his release, John's rage exploded into violence. Riding in a pickup late one night, John and two friends spotted an African-American ex-con named James Byrd, and picked him up. A few minutes later a fight broke out. John William King and his companions slashed Byrd's throat, tied him to the back of the truck, and dragged him to death.”

The author warned that prison rape had ripple effects:

“Once released, rape victims bring AIDS into their communities, along with a flood of rage. Prison rape converts run-of-the-mill criminals – drug users, car thieves, and turnstile jumpers – into violent felons-in-waiting.”

The author estimated the annual “sexual assault” victimization figure at 600,000 men and boys. The DOJ’s 2009 report found that the total number of prisoners sexually abused in a year was about 60,000.

The report did not mention trans people.

“No Escape: Male Rape in US Prisons” (Human Rights Watch, 2001)

That same year, the lefty org Human Rights Watch published a doorstopper, No Escape: Male Rape in US Prisons.

HRW concurred with World about the race problem (citations omitted):

“Past studies have documented the prevalence of black on white sexual aggression in prison. These findings are further confirmed by Human Rights Watch's own research. Overall, our correspondence and interviews with white, black, and Hispanic inmates convince us that white inmates are disproportionately targeted for abuse. Although many whites reported being raped by white inmates, black on white abuse appears to be more common. To a much lesser extent, non-Hispanic whites also reported being victimized by Hispanic inmates.”

HRW only devoted two sentences to trans issues, with no citations. Considering the report’s heft, this suggests the organization was not focused on that population – and likely did not push the issue when lobbying Congress.

PREA: The Statute (2003)

Congress passed PREA unanimously in 2003. Given the campaign behind it, most lawmakers probably understood the Act to be about vulnerable white men.

The statute didn’t actually say how prison rape should be eliminated. Rather, it ordered DOJ to study the problem by collecting data, and then issue rules based on its findings. While data collection would go on every year indefinitely, the rules would initially be drafted by a specially-created National Prison Rape Elimination Commission. NPREC would also produce a report based on the data and other research.

DOJ’s annual statistical analysis would include “the identification of the common characteristics of … both victims and perpetrators of prison rape[.]”

Inmates couldn’t sue under PREA if they believed their prison violated it (in legalese: there’s no private right of action). So judges wouldn’t weigh in on what PREA meant or how it was implemented day to day – DOJ had free rein.

While PREA only directly applied to federal detention, it indirectly applied to state and local facilities because DOJ could yank 5% of their federal funding if they shirked it. Also, when prisoners sued for violations of their Eighth Amendment rights (against cruel and unusual punishment), they might be able to point to the facility’s PREA violations as evidence that prison officials had treated them with indifference.

In PREA’s preliminary “Findings” section, Congress noted:

“The frequently interracial character of prison sexual assaults significantly exacerbates interracial tensions, both within prison and, upon release of perpetrators and victims from prison, in the community at large.”

PREA said nothing about trans people.

PREA: The Report (2009)

Eight experts served on NPREC, most of them appointed by republican officials. The chair was Reggie Walton, a tough-on-crime judge. Other commissioners included a for-profit prison executive, a Human Rights Watch lawyer, and a law professor, Brenda V. Smith.

As an alum of the National Women’s Law Center, Smith appears to have been NPREC’s token feminist. The same year PREA passed, she published an academic article titled “Battering, Forgiveness, and Redemption.” It advocates going easy on guys who beat their wives.

NPREC surveyed inmates, heard testimony around the country, and collected other data to produce a final report in June 2009. This formed the basis for the rules they proposed to implement PREA.

To determine inmates’ housing assignments, NPREC emphasized the importance of screening them based on “an evidence-based, objective process.” And what did the evidence show?

“[T]here is almost no research on risk factors for perpetration of sexual abuse while incarcerated, thus making it challenging to identify potential abusers. Fairly consistent evidence, however, identifies characteristics that increase a prisoner’s risk of sexual victimization.”

That first sentence about perpetrators is suspect. Michigan State University had released a very thorough-seeming study in 2007 (risk factors included sexual victimization as a child, perpetrating sex abuse as a minor, and placement in a lower-security setting). Plus HRW had studied this question, and one of its lawyers was a member of NPREC.

NPREC itself could have collected data as part of its surveys. After all, the PREA statute had specifically ordered DOJ to figure out risk factors for perpetrating prison rape.

I suspect NPREC didn’t want to identify “risk factors for perpetration[.]” Everyone kept saying the perpetrators were black (the Michigan study found they were 70% of perps, 64% of inmates; black men were an astounding 87% less likely to be victims). NPREC couldn’t use that info to craft rules because prisons can’t legally discriminate. So why even wade into that? Indeed, the report said nothing about racial dynamics.

In any case, NPREC decreed that “vulnerability” was everything. Who was vulnerable? Short inmates; inmates with disabilities or mental illness; and transgender inmates.

Survivors of sexual abuse were also vulnerable – and this is where women finally come up. NPREC found massive numbers of female inmates to be survivors of sexual abuse: up to 59% as kids and up to 53% as adults. This could “create a vulnerability to future abuse” because of their “emotional scars” and “feelings of helplessness in the face of danger[.]”

Acknowledging a paucity of data about women, NPREC cited a study of three prisons that found abuse rates of 6%, 8%, and 19%. Almost half the perpetrators were fellow inmates. The women “cited problems with inadequate surveillance, predatory staff, non-caring and unresponsive staff, and policies that protected rather than punished staff and inmate sexual predators.”

This was the environment into which NPREC introduced male criminals.

Missing from the PREA Report

NPREC did not provide any information about trans etiology or the characteristics of trans prisoners. Here’s some data from other sources.

About half of MTF prisoners are sex criminals, which is four times the rate of the general prison population. Some may be misguided gay men raised in homophobic environs. Others appear to be psychotically violent, with their penis being one casualty along with a bunch of human victims (Richard Masbruch, for example). Many are probably fetishists, as that’s a major MTF contingent. And if surgery and even hormones are optional, any number of them could be regular guys working the system.

PREA: The Regulations (2012)

NPREC proposed regulations that went into effect in 2012. The big trans ones are in section 115.42:

“(c) In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.

“(d) Placement and programming assignments for each transgender or intersex inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate.

“(e) A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.

“(f) Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates.”

So each man who says he’s a woman receives individualized care for his health and safety, serious consideration of his views, private showers, and semiannual check-ins. All women are denied showers away from men, ignored if they say they feel unsafe around male inmates, and relegated to the shadows of an allusion to “management or security problems.” 

Or maybe women’s safety is not what that term refers to – who knows? I read the current guidelines about these rules and they don’t go anywhere near the idea that men might pose a safety risk to women. They do say:

“Housing and programming decisions for transgender and intersex inmates cannot be based solely on genital status.”

“Housing and programming decisions for transgender and intersex inmates should not be based primarily on the complaints of other inmates or staff when those complaints are based on gender identity.”

The guidelines also recommend “educating inmates” about “gender identity” and forming “multidisciplinary teams” to serve the transgender inmates. Throughout my research of this topic, I’ve been struck by the amount of resources invested in these men. American prisons are notoriously stingy when it comes to food, citing tight budgets.

Those guidelines were issued by the Biden DOJ. The regulations I quoted above (section 115.42) were drafted by the republican-dominated NPREC. The NPREC was at least partly influenced by LGBT activist orgs, including Lambda Legal. They testified at some of the hearings that were held in 2005-08 and then proposed changes to draft rules that NPREC released in 2008.

NPREC accepted some of the LGBT activists’ proposed changes to the draft rules, like banning use of isolation for trans or vulnerable inmates; defining terms like “gender identity” within the rules; and adding a suggestion (not a hard rule) that housing assignments not be based on genitals. NPREC rejected activist demands that language for “vaginal penetration” be made “gender neutral.”

At least the rules recognize that inmates at high risk of sexually assaulting others are supposed to be separated from the most vulnerable. But how do we identify those risky bets?

PREA Screening and Data Collection

Under PREA, prisons assign housing to inmates based on their risk of becoming victims or perpetrators of sexual abuse. This screening occurs after an inmate is placed in a men’s or women’s prison, so it’s only used to determine how they’ll be treated within the facility. In the federal system, the nation’s Transgender Executive Council makes the initial decision about whether to place an inmate in a men’s or women’s prison.

The screening tool (which facilities are supposed to develop on their own) must count transgender identity as a criterion for victimization even if the inmate is a man in a woman’s prison. It also must consider “physical build” as a victimization flag, but the PREA rules don’t state whether that means “relative to other inmates at this facility” or what. By the logic of this tool, most women are vulnerable to victimization by most men, but not to one another, so their scores should change depending on whether they’re in a true women-only space or mixed with men.

The tool need not consider sex as a factor for assessing victim or perp potential. The only mandatory criteria for the latter relate to past acts. I was relieved to see at least that’s factored in, but it turns out that sex abuse perps are also statistically more vulnerable to abuse (pedophiles are unpopular in men’s prisons). This means two sex abusers can’t share a cell. If a women’s prison houses two men, both sex abusers, it can’t sic them on each other but rather must keep them separate — and exposed to more non-abusive women.

As required by PREA, DOJ surveys detention centers annually. This “Survey of Sexual Victimization” does not request a breakdown by the sex of perpetrators (inmates or guards).

DOJ also surveys inmates directly to learn about sexual abuse occurring in facilities. The most recent National Inmate Survey posted online is from 2012; the next was administered in 2023. The 2012 version asked the sex of any guard who abused them. Apparently DOJ bureaucrats do understand on some level that sex matters.

It’s Not Happening (Enough)

For years many states skirted PREA, adopting compliant policies while in practice only placing men in women’s prisons when they had “female genitals” (i.e., MTF surgical wounds). Since around 2020 many states have changed course and started housing men based on their gender identity. The changes are driven by civil rights (Eighth Amendment) lawsuits and new state laws.

Note that women’s prisons are not always segmented by security risk (e.g., with murderers housed apart from shoplifters) to the degree that men’s prisons are, as the female prison population is smaller and overwhelmingly nonviolent.

Back in 2020, NBC identified 4,890 “transgender prisoners” at state (not federal) facilities. It “was able to confirm only 15 cases in which these prisoners were housed according to their lived gender.” Two of them were FTMs housed with men. But seven states – including California – didn’t report where they lived; NBC noted at least four more men had been transferred since the data was generated.

California: In 2021, just after a new self-ID law passed, the Women’s Liberation Front (WoLF) identified 300 men in California who’d requested transfers to women’s prisons, and dozens who’d already been transferred. It’s suing on behalf of a woman.

Independent Women’s Forum posted a 2024 documentary about the integration of men into women’s prisons in California. It features Jennifer Barela, who was forced to share a room with a man who’d sexually assaulted male inmates and then, later, a male murderer. The Christian Post interviewed a different California woman in its 2022 report on men in women’s prisons.

In 2021, the Wall Street Journal quoted a claim that these trans-identified men in California were not even taking estrogen, and if their female cellmates said they were scared, they (the women) would be disciplined.

Connecticut: In 2018, the state that inspired Rob Henderson’s theory of “luxury beliefs” passed the nation’s first self-ID inmate housing law. It requires a diagnosis of gender dysphoria, which a state official from the governor’s office promises involves “a very elaborate analysis, psychological and otherwise.”

Illinois: In 2019, multiple male inmates – including several murderers – were transferred to women’s prisons in Illinois after nonprofit law firms sued on their behalf. One murderer was soon accused of raping his female cellmate, among other sexual assaults. The woman sued but her case was dismissed after her lawyers – a small-town personal injury firm – withdrew and she failed to properly respond to the state’s discovery demands. 

Minnesota: The state began placing men in women’s prisons in 2023 after settling a lawsuit with a trans-identified man for $495,000. His lawyers were the nonprofit Gender Justice and for-profit firm Robins Kaplan.

New Jersey: The state moved a bunch of men into women’s prisons as it settled a trans lawsuit brought by the ACLU of NJ in 2021. One of the men promptly impregnated two inmates. The state backpedaled a bit. As of 2023, it was housing 10 men in women’s prisons.

New York: The anarchic Rikers Island houses men with women. A guy who ran a prostitution ring transferred over, allegedly on the advice of complicit guards; one of his female victims is now suing over her alleged rape in late 2021 or early 2022. The ACLU’s New York affiliate had been fighting for this outcome for years (though euphemistically referring to the issue in public-facing statements as “improper housing”).

Washington State: in 2021, WoLF identified male murderers housed in women’s prisons. The ACLU fought tooth and nail to keep public records about these men secret.

Federal: About 1,200 transgender inmates are serving time in federal prison. Data on its trans housing is hard to come by — weirdly, since PREA applies to the federal system directly and is all about data collection. I wrote last year about Rhonda Fleming, who sued the federal Bureau of Prisons in 2016 because her facility housed multiple men with penises and testicles. The men had apparently been transferred in some time earlier.

Even defenders of gender-identity housing assignments admit there’s some downside. In 2020, NBC reported:

“[Amy] Miller, of the California Department of Corrections and Rehabilitation, said that while there have been isolated cases of transgender women being moved into women’s prisons and victimizing cisgender women, ‘It’s not something that is prevalent.’”

Since DOJ doesn’t collect data on this phenomenon, we’ll just have to defer to the authorities’ judgment on what “prevalent” means.

FTMs

NBC reported in 2020 there were at least two FTMs serving time in men’s prisons, but:

“Many transgender men prefer to be housed with women, because they fear sexual assault in men’s prisons[.]” 

The Christian Post reported that prison staff in California pressured women to start taking testosterone. This surprised me, since high-T inmates must be harder to manage. But here’s some corroboration: the number of FTM federal prisoners spiked between 2022 and 2023. Is there a funding stream tied to serving the trans community?

Don’t Count on Republicans

NPREC, drafter of the PREA regulations, was dominated and chaired by Republican appointees. 

From 2017 to 2021, DOJ was led by republican appointees of Donald Trump. In 2018 it revised the Transgender Offender Manual to make “biological sex” the first consideration for placing federal prisoners. (I’m not sure of the exact contents of the manual — it’s no longer online.) The DOJ stated it would still place some men in women’s prisons depending on their disciplinary history and whether they had made progress toward medically transitioning.

The Trump DOJ did not revise the PREA regulations. Those apply to state and local facilities, outlast administrations, and require prison officials to prioritize an MTF inmate’s “health and safety.” So when Biden took office in 2021, he unwound Trump’s changes.

Listen to the Experts

The National PREA Resource Center is run by the DOJ and Impact Justice, a nonprofit. It holds trainings where “experts” answer a few questions from prison staff. In these webinars, the experts struggle to provide credible guidance.

Here’s a look at three webinars, followed by some expert testimony in a court case.

“Understanding LGBTI Inmates” (Webinar, 2018)

In 2018, a woman with a masters degree in public policy presented on LGBTI terminology and policies.

Q: My facility is working to be in compliance [with PREA], but we can’t house transgender women with the female population without either the transgender women causing fights or other female inmates complaining. What are our options?

A: Generally, when we learn a facility has had challenges housing a trans woman with cis women, we learn that the facility has not adequately trained their staff to communicate with and about trans women as any other woman, signaling to the women in that facility, This trans woman is not a woman … We’ve found that in facilities where the staff are respectful of trans women’s identities and treat them the same as they do cisgender women, it is much less likely that there will be conflicts.

“Chat with a PREA Expert on Standard 115.42” (Webinar, 2019)

In 2019, PREA co-director Michela Bowman presented on trans housing assignments. Bowman holds a masters in law and society and a law degree, both from NYU.

This webinar was about LGBTI inmates specifically, so Bowman should have been thinking about men placed with women. And yet:

Q: Do most facilities normally house anyone that has been charged with an aggravated rape of an inmate while incarcerated by themselves and away from everyone else?

A: That’s a good question. I don’t actually know the answer to that question … other than I would say that standard 115.42 really requires that person is kept separate from people who are vulnerable to sexual abuse … I think I would want to involve a mental health professional … I assume that person during a risk screening is going to be determined to be at high risk of being sexually abusive. That person may also be at risk of being sexually abused. …

Under PREA, the term “vulnerable to sexual abuse” does not generally apply to all women, so apparently some women may be housed with men who’ve committed aggravated rape against past cellmates. All such men in a women’s facility are considered relatively vulnerable due to their trans identity and status as sex criminals.

Q: How do trans females that have had no gender affirming surgeries face an increased risk or need for additional safety measures, including transfer to a female facility, than a more feminine gay male at a male jail?

A: So a number of things. There is nothing in the data about … a distinction between transgender women who’ve had gender affirming surgery and transgender women who have not … the vast majority of transgender women who are incarcerated have not had gender reaffirming surgery, right? … It’s extremely expensive, difficult-to-access surgery. … This is not a privileged population … So I don’t have a great answer because I think that the data that’s available is not highly fine-tuned to be able to answer the question that you’re asking. …

It’s a great question. I’d add: why not house disabled men with women, or short men, or nonviolent men?

Notice that Bowman didn’t give the correct gender-ideologue answer, which would be: “gay men can’t be housed with women because they’re not women. Trans women, on the other hand, are women.”

“Chat with an Expert on Standard 115.41” (Webinar, 2021)

Bowman returned in 2021 to present about data collection. She was joined by a DOJ Civil Rights Division lawyer, Joshua Delaney.

An audience member asked the experts how to handle a “gender X” inmate, “without treating them like an admin seg case.” That’s a reference to PREA’s ban on segregating inmates based on the fact they identify as trans. By “gender X,” I think she meant nonbinary.

Delaney said, in a tone of irritation, that he didn’t know what gender X was. 

Bowman claimed she didn’t know either, then lectured the questioner about how it’s wrong to segregate trans inmates – a point the questioner had acknowledged. Bowman continued that prison officials must “put them where they are safest.” More lecturing:

“It does require training of staff and education of the inmates in that facility. There are agencies that have done this really well and there are agencies that have had challenges … people who are transgender, who are being housed according to their sex assigned at birth are at such exponentially higher risk of being sexually abused that to do so without considering where else they might be safer is really contrary to standards and incredibly dangerous and I think really problematic … If your agency or facility is challenged … I strongly advise you to seek technical assistance from your peers.”

It may be that the experts didn’t want to acknowledge nonbinary identity. The ACLU doesn’t.

Monroe v. Meeks (Illinois, 2022)

Janiah Monroe, the Illinois murderer accused of raping his female cellmate, was a named plaintiff in a federal class action against Illinois prison officials (filed before the alleged rape) which sought the transfer of trans-identified men to women’s prisons and other relief. Again, at least several other plaintiffs had been convicted of murder or rape.

James Aiken testified at trial as an expert witness for the plaintiffs. He was one of the NPREC commissioners, now working as a consultant to prison systems. Judge Nancy Rosenstengal quoted Aiken’s testimony in her ruling:

“There are no legitimate security reasons for denying transgender prisoners medically-recommended housing placements (aligning with the prisoner's gender identity rather than their genital status)[.]”

The medical recommendations were WPATH’s.

Judge:

“In Aiken's experience, placement of transgender women in a female facility reduces the possibility of random and systemic violence.” 

I think this statement could actually be true. If women just quietly become more fearful around the male inmate, and the guards blow off their “isolated” complaints of assault, then there’s no violence to speak of. Contrast that with trans chaos in a men’s prison, which might involve more gang violence, fighting back, and pimp/prostitute dynamics. (This is just my speculation.)

Judge (emphasis added):

“Aiken further expressed concern that [the Illinois Dept. of Corrections] decision-making process regarding housing transgender prisoners improperly relied on security-related concerns to deny placements recommended by medical staff and allowed non-medical correctional staff to vote down such transfers.”

At this point, Monroe had already secured transfer. The judge seemed unfazed by the rape accusation (IDOC claimed the intercourse had been consensual) or any of the other sexual assault claims against Monroe. Here’s the judge’s fact check:

“Monroe believed the accuser was jealous of her friendship with another woman and testified that Logan inmates often file false PREA complaints.”

The judge ordered extensive relief to the class of trans-identified men, including various trainings for staff from entities like WPATH and Queer Works.

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In 2003, everyone wanted PREA to ease racial tensions that violent prison culture exacerbated. But when congress passed the ball to DOJ, it didn’t touch race. Instead it lavished attention on transgender housing assignments – a topic none of the activists or elected officials had promoted when advancing PREA.

America: Hey bureaucrats, can you help us with our race problem?

Bureaucrats: Yes, we will make sure that all prison guards can recite the difference between gender identity and gender expression.

Black women are over-represented in women’s prisons. 62 per 100,000 black women are incarcerated, compared to 38/100,000 white women.

Congress set out to help white men and it ended up screwing black women.