Response to New ICE Guidance on Treatment of Transgender Detainees

This statement was co-written by Carmina Ocampo, Staff Attorney and Immigrant Rights Strategist for Lambda Legal, and M. Dru Levasseur, Lambda Legal’s Transgender Rights Project National Director.

U.S. Immigration and Customs Enforcement (ICE) this month issued expanded guidelines on the treatment of transgender immigrants currently detained in ICE facilities. The 18-page memo details how ICE personnel are to process transgender detainees and respond to their health, mental health and other needs.

These expanded guidelines focus on the particular issues transgender immigrants face while in ICE detention facilities. We welcome this step which provides important guidance on health care, mental health services and respectful treatment of transgender immigrants during the intake process. However, we are troubled that these guidelines do not include any mechanisms for enforcement of these provisions, which are critical to being able to hold the government and privately-run facilities accountable. Without enforcement provisions the guidelines have no teeth.

The guidance also does not include measures to ensure that detainees can report sexual assault easily, measures to protect and respond to detainees who are victims of sexual assault and measures to protect victims from retaliation should they report such assault. The guidance also leaves open the possibility that transgender people can be placed in restrictive segregation and/or solitary confinement under certain circumstances, which is unacceptable given the documented serious harms caused by the use of solitary confinement.

Finally, as 35 members of the U.S. Congress wrote in a recent letter to Department of Homeland Security (DHS) Secretary Jeh Johnson, this guidance does not address any steps that ICE or DHS can take to keep transgender and, more broadly, LGBT immigrants, out of detention whenever possible due to the extraordinarily high rates of abuse LGBT immigrants experience while in custody. ICE should explicitly classify LGBT immigrants as a vulnerable population and, as ICE does with other members of vulnerable groups, and should use its existing discretion to release LGBT individuals from custodial detention and use alternatives to detention unless there are extenuating circumstances.

The guidance incorrectly speaks of “biological sex” as separate from gender identity and inaccurately defines “biological sex” as associated with chromosomes, hormone prevalence and anatomy. In fact, gender identity (or “brain sex”) is now understood to be biological and to be the primary determinant of an individual’s sex. Failing to recognize this harms transgender people by casting doubt on their identity and may contribute to the abuse they face in ICE detention facilities and elsewhere.

Jennicet Gutiérrez and transgender women of color have courageously raised their voices to call for an end to the detention and abuse of transgender women; the government should do everything within its power to respond.

Read the press release.