The Sylvia Rivera Law Project’s CLE presentation on Transgender Issues in the Criminal Justice System earlier this week was wonderfully put together. Elana Redfield and Gabriel Arkles began by with a general overview of gender identity issues, and then went into more detail on issues that transgender people face in the criminal justice system and how to best assist our trans clients in light of these issues.
It was wonderful to see several of our judges out there, actively interested in learning about trans issues and how to best treat trans defendants in their courtrooms as respectfully and justly as possible. It was also depressing to hear how disproportionately frequently transgender individuals are dragged into criminal court, leading to some of the judges’ familiarity with trans issues.
The issues that caught my attention the most, in addition to the statistics presented, were these:
Alternatives to detention, such as community service or drug treatment, frequently come up as options in misdemeanor plea agreements. When defendants shows up for these programs, they are generally required to show ID. Because it can be difficult for transgender individuals to obtain valid ID that accurately represents their gender presentation, it can be difficult or impossible for many transgender defendants to complete these programs as ordered. Some programs are more accessible, so the point is to do the research and be aware of the issues when going into negotiation or sentencing.
The terminology used caught me by surprise. The presenters encouraged referring to cisgendered people as non-trans rather than cis, and not just in the courtroom. I’m accustomed to using cis as the opposite of trans, to refer to people whose gender identities match their assigned genders at birth. I’m cis myself, and still don’t consider the term insulting. Frankly, I find it less othering than non-trans.
That said, I don’t think I could refer to someone as cisgendered in the courtroom without confusing and distancing the judge, jury, and opposing counsel in most cases. So while I prefer to use the term cis in my private life, I concede that non-trans is a more effective term to use in the context advocating for trans defendants.
The big question of the evening was whether the Department of Corrections will honor judges’ haircut orders. All people entering the custody of New York State’s prison system who are placed in a men’s prison are required to cut their to one inch length or shorter, with the exception of members of certain religious groups. Trans women are generally placed in men’s prisons nowadays, because the DOC tends to determine gender by doing a strip search and judging themselves what a person’s genitals look like to them.
Because forced haircuts or head shaving are a huge indignity and attack on the mental health of trans women, judges have tried ordering the DOC to exempt trans women from the otherwise mandatory haircut rules.
When Mr. Arkles announced that the DOC had claimed to have a policy of honoring such orders, a judge informed the room that she had been overturned in an Article 78 proceeding for ordering a haircut exemption for a trans woman. This judge explained that after that experience, she prefers to give “recommendations” to the DOC regarding haircuts instead. To her knowledge, the haircut recommendations are generally respected where orders are ignored. Still, no one present had a definitive answer on whether or not the DOC is actually bound by a Criminal or Supreme Court order regarding a haircut exemption.
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