Impact Fund Supports Groundbreaking Class Action Litigation For Colorado's Transgender Prisoners

Shawn Meerkamper, Senior Staff Attorney, Transgender Law Center

This year, Black leaders, activists, and protesters, many of them trans and queer, have made clearer than ever the need to defund the police and end mass incarceration. Amongst the mounting body of evidence supporting these calls is the reprehensible treatment and the torture trans women are subjected to while incarcerated in men’s prisons. 

More than 25 years ago, Dee Farmer, the first out trans person to bring a case before the Supreme Court, made groundbreaking precedent that acknowledged the severe and obvious risks inherent in incarcerating trans women in men’s prisons. Yet, despite that victory, and subsequent federal legislation, incarcerated trans women today find themselves in much the same situation Dee did. 

Rape and other violence are a constant threat. Trans women who survive and report such violence are met with punishment in the form of solitary confinement and strip searches by male guards. Transition-related healthcare is withheld, and many face the dangerous physical and mental health consequences of being cut off from hormone replacement therapy; requests for lifesaving surgical treatment for gender dysphoria are ignored, denied, and treated with derision—even in states where public and private insurance are required to cover such treatment. And on top of all that, verbal harassment in the form of slurs, misgendering, and deadnaming is the norm from prison guards and staff, including mental health providers. 

Named plaintiff Jane Gallentine (on right) with her father

In Colorado’s prisons, trans women have been fighting to survive and fighting for their rights for years. Kandice Raven lives with permanent injuries that she sustained in multiple severe beatings carried out by groups of transphobic men. Jane Gallentine has been trafficked, treated as property and repeatedly sexually abused, including by one man who tattooed his name on her neck to convey “ownership,” and by another man employed as a prison guard. Amber Miller has again and again requested officials’ help in escaping her abusers and found that the only way to get a response is to break prison rules or engage in self-harm to keep herself safe. In response to their fearless self-advocacy, the Colorado prisons have responded by transferring Kandice, Jane, and Amber to a series of more and more restrictive—and more and more dangerous—prisons and prison units. 

While building a future where our police are defunded and our prisons are abolished, Transgender Law Center is also taking immediate action to put a stop to some of the worst abuses trans women suffer while incarcerated. With the support of the Impact Fund, and in partnership with the civil rights firm King & Greisen and Arnold & Porter, we are representing Kandice, Jane, Amber, and four other intrepid survivors and advocates in a class action against the Colorado prison system, demanding an end to the entire range of abuses our clients face.

And we are already making progress. In August, we won a key decision holding that prisons are places of public accommodation for purposes of Colorado nondiscrimination laws. As the federal courts tilt further and further to the radical right, state courts and state civil rights law are increasingly critical avenues for progressive legal action. What’s more, the application of a state’s nondiscrimination laws to that state’s prisons may lead state nondiscrimination agencies to assert their jurisdiction over prison and jail systems, opening up new and lower-barrier avenues for incarcerated people to assert their rights. 

There are other reasons for hope as well. This January a new California law will go into effect and become the strongest policy of its kind allowing trans people to choose whether they are incarcerated in men’s or women’s prisons. And the incoming Biden administration can and should look to California’s example as it works to restore and build upon the modest progress federal prisons made on trans issues during the Obama years.

From years of experience and advocacy, and from our extensive travels to prisons throughout the U.S., we at Transgender Law Center know that prisons will never be safe for our people—for any people—, and that we must end incarceration as we know it. And, along the way, we must also engage harm reduction strategies to address the needs of our trans, and cis, family “on the inside.” Join us.