Trump Administration Abolishes Rules Protecting Trans Prisoners
The Trump administration has officially eliminated guidelines that protect transgender people in federal prisons. It is the latest step in implementing one of President Donald Trump's executive orders targeting trans inmates and detainees in federal custody.
In a brief directive circulated to federal Bureau of Prisons employees on Thursday, a copy of which was reviewed by The Intercept, the acting director of the federal Bureau of Prisons, William Lothrop, rescinded the agency's Transgender Offender Manual. The guidelines were removed from the BOP website in late January, but the agency has continued to cite them in ongoing lawsuits over Trump's executive order.
Lothrop's memo, dated February 25, cancels the Transgender Offender Manual 'effective immediately' and orders it removed from the BOP intranet and prison libraries.
BOP did not immediately respond to a request for comment.
'The Transgender Offender Manual was based on constitutional protections and federal law, so I think it is a very dangerous step backwards,' said Richard Saenz, an attorney at Lambda Legal.
The guidelines had been last updated in 2022, reversing changes made during the first Trump administration. They had instructed prison wardens and staff on minimal protections for trans inmates, consistent with federal regulations and the Prison Rape Elimination Act. The policy reflected the 'increased risk of suicide, mental health issues and victimization of transgender inmates.'
Under the prior guidelines, protections included considering housing placements for trans and intersex prisoners on a 'case-by-case basis' to 'ensure the inmate's health and safety,' as well as shielding trans women from being searched by male guards and forbidding staff from deliberating misgendering inmates.
In separate guidance circulated last week, a copy of which was also shared with The Intercept, the BOP acknowledged that Trump's executive order 'does not supersede or change BOP's obligation to comply with Federal law and regulations.' Saenz also emphasized that the Trump administration cannot erase constitutional protections for incarcerated trans people.
'It's attempting to defy these well-established protections' for inmates' safety and adequate healthcare, Saenz said of the BOP's rescission order.
The new guidance says nothing about how BOP will proceed with plans to move trans women to male facilities, which is currently being challenged in court. 'The risk of serious violence Plaintiffs face if transferred to men's facilities is known to BOP and is why these individuals were permitted to live in female facilities in the first place,' lawyers for a dozen trans women in federal custody wrote in a court filing earlier this week.
On Monday, a federal judge blocked BOP from transferring the women to male prisons, finding this likely violated the Eighth Amendment's prohibition on cruel and unusual punishment.
The BOP's new guidance for trans prisoners is also silent about gender-affirming care, which Trump's executive order also attempts to eliminate. On Monday, the judge also ordered the BOP to maintain the same medical care for the dozen inmates that the bureau received before Trump took office.
But under the new agency guidance, search accommodations for trans inmates 'are no longer authorized.' BOP staff must 'refer to individuals by their legal name or pronouns corresponding to their biological sex.'
The new guidance also prohibits inmates from receiving 'clothing accommodations,' such as 'undergarments that do not align with an inmate's biological sex.' The rescinded manual allowed trans inmates to select undergarments that reflected their gender identity, and wardens could approve other items on an individualized basis. Under the new guidance order, inmates who previously purchased commissary items can keep them, a reversal of moves by some wardens earlier this month to confiscate clothing items.
Although the immediate impact of rescinding the BOP guidelines is unclear as lawsuits proceed over Trump's executive orders, advocates fear the signal that such moves send to corrections officials around the country.
'These unconstitutional and dangerous attacks by the Trump administration should not be seen as a green light for state systems to follow along,' Saenz said. 'These actions and this hostile, hateful rhetoric does not change the fact that there are laws protecting trans people.'
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