Through a cooperative agreement between BJA and Impact Justice

Is an agency compliant with Standard 115.42(g) or Standard 115.242(f) if it places Lesbian, Gay, Bisexual, Transgender, or Intersex (LGBTI) inmates or residents in a dedicated facility, housing unit, or wing solely on the basis of such identification or s

August 17, 2017

Is an agency compliant with Standard 115.42(g) or Standard 115.242(f) if it places Lesbian, Gay, Bisexual, Transgender, or Intersex (LGBTI) inmates or residents in a dedicated facility, housing unit, or wing solely on the basis of such identification or status, absent a consent decree, legal settlement, or legal judgment?

Standard 115.42(g) states: 
“The agency shall not place LGBTI inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.”

No. Placement in a dedicated facility, housing unit, or wing that houses only LGBTI inmates or residents violates Standard 115.42(g) or Standard 115.242(f), unless it was established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. In practical terms, placement is based “solely” on LGBTI status when only LGBTI inmates or residents are eligible for such placement. This is true whether such placement is made pursuant to policy or in practice, and regardless of whether an inmate volunteers for—or requests to be placed in—such a facility, housing unit, or wing.

For example, because they are evidence of de facto placement based solely on status, absent a consent decree, legal settlement, or legal judgment, a facility, housing unit, and wing are prohibited under Standard 115.42(g) or Standard 115.242(f) if they: 

  • House only vulnerable LGBTI inmates or residents;
  • House only another subset of LGBTI inmates or residents; and/or
  • Otherwise exclude all non-LGBTI inmates or residents

Some agencies and facilities have had success establishing housing units or wings reserved for inmates or residents who are designated as potentially vulnerable through the screening process. In addition to LGBTI inmates, who are at an increased risk for sexual abuse and sexual harassment, these units or wings may, for example, house male inmates who are small in stature, inmates who have a gender non-conforming appearance, a disability, and a past history of being sexually abused. It is important to ensure that these units or wings for vulnerable inmates or residents do not include individuals who screen positively as likely perpetrators of abuse. For example, a convicted sex offender may be designated as vulnerable because of his charges or other factors, and may require protective custody, but he would not be an appropriate candidate for a vulnerable persons’ unit or wing, if screening information indicates that he may be sexually aggressive towards other inmates. A strong screening and classification system enables these units or wings to provide increased safety for vulnerable inmates without requiring restrictive measures, such as 22-hour in-cell confinement, that are often found in protective custody.

LGBTI Inmates/Residents/Detainees/Staff
Placement Decisions
Screening
115.42