Q.

Does standard § 115.41 (§ 115.241, § 115.341) require facilities to affirmatively inquire of the inmates/residents about their lesbian, gay, bisexual, transgender, or intersex (LGBTI) status, in addition to making a subjective determination about perceived status?

A.

Yes. In adult facilities, Standards 115.41 and § 115.241 require that “[a]ll inmates/residents shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates/residents or sexually abusive toward other inmates/residents.” The inmate/resident screening shall consider, at a minimum, and among several other factors “[w]hether the inmate/resident is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” See 28 C.F.R. § 115.41(d)(7) and § 115.241(d)(7).

Similarly, in juvenile facilities, Standard 115.341 requires that the agency shall conduct a risk screening that “attempt[s] to ascertain information about… [among other factors,] any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident may therefore be vulnerable to sexual abuse.”  See 28 C.F.R. § 115.341(c)(2).

For both adult and juvenile facilities, the enumerated factors require both an objective (is) and a subjective (is perceived to be) determination. The objective determination requires that an inmate/resident be affirmatively afforded an opportunity to self-identify as LGBTI, if the inmate/resident chooses to do so. In addition, staff should consider any other relevant knowledge or information regarding inmates’/residents’ LGBTI status. The subjective component—whether an inmate/resident appears gender nonconforming—necessarily requires a determination based on the perception of the screening staff. 

Perception is important because if the screener perceives that an inmate/resident might be considered LGBTI and/or gender nonconforming, then other inmates/residents (and staff) may have the same perception. Specifically, gender nonconformity is usually something that can be determined by staff, though that perception is not to be substituted for an inmate’s/resident’s own self-identification. Please note: an affirmative response does not require any specific course of action based on this one factor. It is one piece of information that should be evaluated in conjunction with the other factors listed in the PREA standards concerning the overall assessment of the inmate/resident. Inmates/residents may feel reluctant to provide screening staff with information regarding their identification as LGBTI due to, among other possible reasons, a fear that disclosure of such information may make the inmate/resident more vulnerable to sexual or physical abuse, or harassment. Accordingly, the standards require the agency to implement appropriate controls on the dissemination of screening information within the facility and to protect sensitive information. See 28 C.F.R. § 115.41(i), § 115.241(i), and § 115.341(e).While agencies are required to ask the inmate/resident if he or she chooses to identify as gay, lesbian, bisexual, transgender, and/or intersex, it is clear that the agency may not compel the inmate/resident to answer. Specifically, the adult facility standards provide that inmates may not be disciplined for refusing to answer (or for not disclosing) certain enumerated factors, including whether they identify as LGBTI. See 28 C.F.R. § 115.41(h) and § 115.241(h).  While there is no specific corollary in the juvenile facility standards, it would be counterproductive and harmful to punish young residents for refusing to provide this sensitive information.

The standards require that inmates/residents be assessed for these and other risk factors “during an intake screening within 72 hours1 of arrival at the facility, using an objective screening instrument.” See 28 C.F.R. §§ 115.41(a)-(c), §§ 115.241(a)-(c), and §§ 115.341(a)-(c). The standards further require that the agency use the information from the intake risk screening to inform housing, bed, work, education, and program assignments. See 28 C.F.R. § 115.42(a), § 115.242(a), and § 115.342(a). However, the standards do not mandate exactly when, where, how, or who should conduct the intake screening. If a particular facility determines that some or all sensitive screening inquiries should be asked by medical personnel or in an interview separate from the larger intake screening process, the facility administration may choose to structure the intake screening in an alternate manner that provides for appropriate privacy and candor. So long as the intake screening is conducted using an objective screening instrument, includes all of the required information, is completed within 72 hours, and is used to inform the inmate’s/resident’s risk status, facilities have the discretion regarding the most appropriate setting and screening personnel for asking inmates/residents sensitive screening questions.

The Department of Justice (DOJ) recognizes that some agencies may be hesitant (for any number of reasons) to affirmatively ask inmates/juvenile residents whether they identify as LGBTI. However, as indicated in the PREA Notice of Final Rule, DOJ remains of the view that appropriately trained intake staff should be competent to ask inmates/residents sensitive questions in a professional and effective manner. Both the adult facility and juvenile facility standards require agencies to train staff on “[h]ow to communicate effectively and professionally with inmates/residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates…” See 28 C.F.R. § 115.31(a)(9), § 115.231(a)(9), and § 115.331(a)(9).  Effective and professional communication requires a basic understanding of sexual orientation, gender identity, gender expression, and how sex is assigned at birth. It also requires staff to be aware of their own gaps in knowledge and cultural beliefs, and how these factors may impact the ability to conduct effective interviews and assessments. An effective training will encourage open dialogue with staff, so that these issues can be addressed in a respectful and nonjudgmental manner, with a focus on encouraging behaviors that support staff members’ ability to meet their professional responsibilities. In addition, recognizing the sensitive nature of these issues with juvenile populations, the juvenile facility standards requires that “[s]uch training… be tailored to the unique needs and attributes of residents of juvenile facilities…” See 28 C.F.R. § 115.331(b).

The following webinars may be helpful:

Asking Adults and Juveniles About Their Sexual Orientation: Practical Considerations for the PREA Screening Standards 

Understanding LGBTI Inmates and Residents 


The adult prison and jail standards and the adult community confinement standards require such screening to take place “ordinarily” within 72 hours, while the juvenile facility standards require that the screening take place within 72 hours.

 

Revised October 21, 2016. Original posting date June 19, 2014.

Standard
Categories
LGBTI Inmates/Residents/Detainees/Staff,
Screening