The U.S. Immigration and Customs Enforcement ( ICE ) Office of Enforcement and Removal Operations ( ERO ) has announced updated guidelines concerning the care of transgender immigrants in custody.
This announcement comes on the heels of a letter that was sent by 35 members of Congress to the Department of Homeland Security ( DHS ) Secretary Jeh Johnson calling for limits on the use of detention for LGBT immigrants.
Currently, ICE has about 65 transgender immigrants in custody out of a total of 30,000 undocumented immigrants in custody at 200 detention facilities across the country.
The Transgender Care Memorandum, released June 29, is the result of a six-month ICE NGO Working Group examination of policies concerning transgender detainees involving subject matter experts including LGBTI experts, input from transgender individuals and visits to a number of non-federal facilities across the country to observe best practices regarding transgender individuals in custody. The working group looked at how federal and non-federal entities identified, classified and housed transgender individuals.
The new guidelines include how ERO personnel will identify, process and look at individuals who identify as transgender as well as the adoption of a voluntary contract modification that will allow for detention facilities who care for transgender individuals to look at them holistically. This will include recording an individual's gender identity during the data collection stage, officer training and tools regarding identifying an individual's gender identity as well as updated housing placement options.
As far as placement in the facilities, ICE ERO Transgender Care Classification Committee ( TCCC ) members will be looking at each individual on a case-by-case basis from a safety and security perspective, medical and mental health perspective as well as consultation with the detainee to determine placement. The TCCC question guide will include asking the detainee their preferred name and gender pronoun, any medical issues they might have, hygiene and grooming needs, housing preferences, recreation programming options and who should search them.
While transgender detainees will be able to have housing assignments based on their gender identity for the first time, that doesn't mean that some transgender detainees won't still be housed based on their gender assigned at birth, be put in protective custody units or put in medical or administrative segregation units.
"The Transgender Care Memorandum reaffirms ICE's commitment to provide a safe, secure, and respectful environment for all those in our custody, including those individuals who identify as transgender," said ICE ERO Executive Assistant Director Thomas Homan. "We want to make sure our employees have the tools and resources available to learn more about how to interact with transgender individuals and ensure effective standards exist to house and care for them throughout the custody cycle."
In response to the memorandum, the National Center for Transgender Equality, the National Immigrant Justice Center, United We Dream, Immigration Equality, and the Human Rights Campaign have released a joint statement regarding ICE's updated guidelines.
"We welcome these long-overdue developments but insist that ICE can and must do more to protect LGBTQ immigrants. We stress that the core question here is why so many vulnerable people are imprisoned by ICE in the first place to await immigration court hearings. Earlier this week, the secretary of DHS stated that the detention of women and children who are seeking asylum was an inappropriate use of agency resources; for LGBTQ individuals, the same logic applies.
"This community is at the highest risk of rape and assault, and for most there is no compelling reason to justify their detention. Indeed, a recent Center for American Progress report shows that ICE routinely detains LGBTQ immigrants who it knows are at great risk and should not be behind bars. Together with immigrant and LGBTQ communities nationwide, we will continue pressing DHS and ICE to move away from the needless, costly, and dangerous policy of mass detention."
"ICE's guidelines finally acknowledges what we've known for a long time: transgender people cannot be held safely in detention," said Raffi Freedman-Gurspan, racial and economic justice initiative policy advisor at the National Center for Transgender Equality. "Though the guidance represents a significant improvement in how transgender immigration detainees will be treated, ICE's record on implementing guidance such as this is mixed. To really end the suffering transgender detainees face, the Obama Administration must release transgender detainees for whom being in detention makes them a target of sexual assault and violence."
"The LGBTQ undocumented community has stood up to end the detention of their community by ICE," said Carlos Padilla, coordinator for the Queer Undocumented Immigrant Program, a project of United We Dream. "As numerous examples this year have shown, LGBTQ immigrants are affected at much higher levels by abuse, including sexual assault and rape while being detained. In particular, transgender women housed in men's detention facilities have encountered horrific attacks and are at grave risk for physical violence and sexual assault. Detention is bad for everyone. United We Dream is committed to ending the enforcement and detention system that criminalizes and harms our community, particularly the most vulnerable including children, pregnant women, people living with HIV and/or other chronic medical conditions, people with disabilities, and LGBTQ immigrants."
"After years of raising concerns about the treatment of LGBT immigrants, especially transgender women, we are happy to see ICE take this step," says Keren Zwick, managing attorney for the National Immigrant Justice Centers' LGBT Immigrant Rights Initiative. "But as with any ICE initiative, the devil is in the details. We continue to have significant concerns that the implementation of this guidance will be slow, insufficient and that it will result in centralizing transgender women in remote areas where they cannot have meaningful access to counsel."
Transgender Law Center Executive Director Kris Hayashi said, "This guidance does not change the fundamental issue that Jennicet Gutierrez so bravely brought to President Obama last week: detention and deportation of transgender people must end."
Gutierrez interrupted Obama's annual LGBT Pride reception at the White House. An undocumented transgender Latina immigrant, Gutierrez was boo'd by some of the attendees for yelling for immigration justice issues during Obama's speech. She was escorted out by security.
"We are encouraged to see that ICE has formally recognized the special vulnerability of transgender individuals in immigration detention centers. However, mitigating a problem and fixing it are not the same thing. The quickest, the most humane, and the most cost-effective solution is to stop detaining transgender people in the first place," said Aaron Morris, legal director of Immigration Equality.
"Any time the government restricts a person's liberty, it has an absolute obligation to keep them safe," said Lovisa Stannow, executive director of Just Detention International. "Today's guidance moves the agency forward in creating safer facilities that better meet the needs and dignity of transgender detainees. However, this initial step must be supported by aggressive implementation and the guidance should be reviewed every six months to add additional protections when possible."
Additionally the #Not1More campaign and member groups—Familia: Trans Queer Liberation Movement, Transgender Law Center, GetEQUAL, and Southerners On New Ground have issued the following statement in response to the memorandum.
"A guidance document cannot be expected to change the fact that DHS and ICE have consistently failed at maintaining a minimum of safety and dignity for transgender immigrants. Transgender immigrants and other vulnerable populations, including mothers with their children and LGBTQ detainees, should be released from detention. While we have an imperative to advance short and long term protections for LGBTQ people and all people in immigration detention, our experience with guidance documents such as these is that their implementation is inconsistent and with little oversight or accountability.
"In addition, this guidance still allows for practices that have been denounced as inhumane—including administrative segregation, 'protective custody,' and isolated pods—as adequate forms of housing for transgender individuals. Every one of these practices has failed to protect transgender immigrants, particularly women, from rape, sexual and physical abuse and dangerous living conditions in detention. Lastly, it is extremely concerning that this guidance does not mandate that contracted detention facilities sign on to pre-existing protections such as to the Contract Modification for Transgender Care. This will result in a continuation of the practice of using isolation or inadequate GBT specific pods to detain transgender women."
In addition to the updated guidelines, ICE has also designated a new National ERO LGBTI coordinator, Andrew Lorenzen-Strait. Straight is also the deputy assistant director for ERO ICE. ICE will also be designating local LGBTI field liaisons at each of the 24 ERO field offices. The local LGBTI field liaisons will be charged with providing resources for the other ICE officers at those offices.
See www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf for more information .
