8 Changes Transgender People Need from Law Enforcement
Transgender people are targeted, profiled, harassed, and abused by law enforcement nationwide. A new report from NCTE shows how police departments can evolve to meet the needs of their community.
As laws and policies evolve and modernize, transgender people are increasingly becoming more visible and active members of our communities. School districts across the country are adopting policies promoting safety, acceptance, and inclusivity for their transgender students, workplaces are developing HR policies to protect and preserve the dignity of their transgender employees, and many transgender people themselves are promoting their own visibility through increased public service and leadership in their communities — including in elected office.
Unfortunately, this is still a population that frequently faces bias and harassment. Transgender people are more likely to experience poverty and homelessness, as well as violence and exposure to health risks such as HIV and drug use disorders. A lack of adequate housing and employment protections means many engage in the sex trade and transgender people overall are more likely to be in contact with law enforcement than the general population.
For a variety of reasons, many transgender people are hesitant to contact or cooperate with law enforcement — even when they are in need of help or assistance. According to our 2015 US Transgender Survey, nearly two thirds of transgender people who interacted with police in the last year were mistreated in some way, ranging from verbal to physical to sexual harassment. One in ten said they were profiled as sex workers, and one in twenty were physically assaulted by a police officer.
With these experiences in mind, a majority of transgender people are hesitant to voluntarily engage with police at all. Such mistrust in law enforcement only serves to isolate transgender people from their communities in a way that is not only harmful to them but harmful to law enforcement and their communities.
To address the harms experienced from Law Enforcement, NCTE published Failing to Protect and Serve. a report meant to help police departments develop policies in a sensible fashion. This included a model policy guide, and an analysis of the existing policies of the 25 largest police departments in the country that included everything from respectful communication with transgender people to proper placement in holding and how to conduct safe and respectful searches.
While we found many departments working to engage transgender people with dignity and respect, we also found that most were leaving their officers behind while their communities moved forward. Some mentioned specific guidelines for interacting with transgender individuals — such as allowing individuals to declare the names and pronouns that should be used to address them — while others had broad policies prohibiting mistreatment of transgender individuals while never outlining what that means in a practical sense.
Outlined below are eight approachable steps to modernizing any police department that can help reduce incidents while establishing a relationship based on respecting the identities and experiences of t the transgender community.
- Departmental Non-Discrimination Policies
Municipalities across the country are increasingly adopting non-discrimination policies protecting transgender people from discrimination in a variety of areas of public life — from housing and schools to employment and access to adequate health care. Police departments, however, can benefit from their own internal policies reinforcing the need to treat all residents of their community without regard to their race, ethnicity, nationality, age, sexual orientation, or gender.
In our analysis, we found most departments do have policies prohibiting discrimination on the basis of sexual orientation — but many lacked an explicit policy likewise prohibiting discrimination on the basis of someone’s gender identity. In total, only nine of the largest 25 police departments had a publicly-available policy prohibiting mistreatment of people because they are transgender.
A sound policy that informs all officers of their duties would prohibit consideration of an individual’s gender identity or expression as a reason to stop, question, search, or arrest that person. Likewise, gender identity or presentation (meaning how one dresses, behaves, or speaks) should not be used as reasonable suspicion or as prima facie evidence for a crime (such as sex work).
Having an official department statement such as this can remind officers of best practices when establishing relationships of trust and communication with transgender people — as suspects, victims, and as members of their community.
2. Respectful Communication
One of the most common forms of mistreatment faced by transgender people is being referred to as a gender other than the one they identify with — often called “misgendering.” Avoiding this can be a crucial bridge to transgender people and their community, establishing a firm understanding and respect with law enforcement. In short, a transgender person is more likely to cooperate with officers who refer to them with the correct name, honorifics, and pronouns.
Unfortunately, we found 15 of the 25 department policies we analyzed lacked any guidance for officers in this small but important area. Our survey found this lack of policies reflected in the experiences of transgender people who interacted with police in the last year, half of whom said officers consistently used the wrong pronoun or name when referring to them.
It’s why we recommend members of every department should address individuals using names, pronouns, and titles of respect appropriate to the person’s gender identity as expressed by that person. According to our survey, nine out of every ten transgender people carries some form of identification with a name or gender other than the one they use on a daily basis. It’s why we encourage departments to let the individual identify their name and pronouns whenever possible. While a small step, it can frequently mean the difference between a cooperative and uncooperative engagement.
3. Departmental Forms
Alongside a firm and approachable policy, one of the best ways to help officers avoid alienating themselves from transgender people can be adequate forms and documentation of an individual’s gender identity. Many hospitals and schools have already developed internal systems for recording the legal name and gender of an individual while still encouraging staff to use the name and pronouns that individual uses on a daily basis.
Unfortunately, none of the 25 departments we analyzed offered a similar system for recording the name and pronouns used by an individual when those differ from the language on that people legal documents or prior arrest record.
To help establish a relationship of trust, we do not encourage departments to consider the name an individual currently uses to be an “alias” or “nickname” on department forms, digital arrest records, or memo books. Instead, all departmental forms should allow for a space for the “Name currently used” by that individual and “Legal Name (if different from above).”
This is a particularly important step in regards to hate crimes and filing public reports about the victims of crimes. In a report by the nonprofit news agency ProPublica, 74 of the 85 investigations into the potential murder of a transgender person identified them in official reports by the wrong name and gender. This not only puts increased hardship on the family and community of the loved one; It also further alienates the department from the community whose trust they need.
4. Search and Transportation Procedures
One of the most fraught areas of concern for many officers when interacting with transgender people are those processes already divided by gender — especially search and transportation. Often in the interest of the safety and transparency, many departments allow for women to be transported and searched by female officers while men are typically transported and searched by male officers.
In total, 20 of the 25 departments we analyzed require search based on the gender listed on the legal documents of the individual and none provided guidance for transportation.
As noted in our discussion of respectful communication, the costs and time required to update legal documents are significant enough for many transgender people that only one in ten have the accurate name and gender listed on every document (ranging from driver’s licenses and birth certificates to social security cards and passports).
Instead, we recommend officers allow individuals to signify the gender of the officer they would feel safest being searched by. This recommendation is not only in the interest of the individual but in the interest of the officer doing the search.
Departments should be prepared for the eventuality of interacting with an individual with a gender identity other than the one assumed by their appearance or legal documentation. An individual’s appearance and visible anatomy — including their genitalia — is not an indicator of a person’s gender identity, and allowing the individual to self-attest to their gender is the surest path towards respect for that person and any department staff interacting with them.
5. Placement and Restroom Use
Similar to search and transportation, many departments have gender-specific policies for placing individuals in temporary holding or allowing them to use restrooms in department facilities or elsewhere. However, many of these policies fail to consider best practices regarding transgender individuals in a way that promotes and secures safety and privacy for everyone involved.
While sixteen of the 25 departments we analyzed had holding facilities, only six provided specific guidance for placement of transgender individuals and only one provided guidance for restroom use.
Placement is a consistent area of concern for transgender individuals — and understandably so. According to our survey, transgender people are ten times more likely to be sexually assaulted by their peers while in prison and five times as likely to be sexually assaulted by prison staff. This untenable situation is why the Department of Justice published specific guidance in regards to the Prison Rape Elimination Act.
After nine years of study, DOJ recommended prison officials consider placement for each individual on a case-by-case basis with safety as a top priority and gender identity as a key concern.
In order to comply with PREA, any individual entering into temporary holding should be consulted on where they feel safest before placement, and every effort shall be made to ensure the individual is placed accordingly. Unless individuals express a concern for their safety, individuals may be housed in a manner consistent with their gender identity.
Because of the particular risks posed to transgender individuals, each step of that process and the individual’s preferences should be documented in writing. All placements made that are not in accordance with what the arrested individual specifies would be safest should likewise be documented in writing alongside a detailed explanation for why the safety request was overridden.
It would also be inappropriate to isolate transgender individuals in solitary confinement, even when doing so may appear to be the best option for their safety. In fact, this needlessly segregates transgender individuals — subjecting them to the mental stress caused by isolation — while denying them equal access to programs and services afforded to others in the facility.
6. Medical Care
When in holding, many individuals might have specific health needs that must be addressed while in custody. This is particularly true of transgender individuals, many of whom use medications as part of their gender transition.
This typically includes hormone replacement therapy, or HRT. Transgender women frequently take a series of hormones and hormone blockers to both reduce testosterone and increase estrogen, and transgender men are frequently prescribed testosterone.
When in holding, federal law requires transgender individuals still be allowed access to these hormones consistent with their ongoing medical needs.
Out of the sixteen departments with holding facilities, our analysis found only four had policies explicitly concerning hormone medications. Such medications are an important part of the physical and mental well-being of transgender people and should be treated no differently than other medically-necessary medications.
7. Removal of Appearance Items
Transgender men frequently wear garments compressing the chest so breasts are less visible (frequently referred to as a binder). Similarly, transgender women may wear corsets or other items used to comfortably conceal genitalia (frequently referred to as a gaffe) or other items such as wigs.
As these items rarely — if ever — pose a safety risk, they should never be removed from a transgender individual in situations where members of the department would not demand the same of non-transgender individuals. If officers determine the items should be removed from an individual, they should do so in private and away from other individuals in holding.
8. Officer and Staff Training
As many compliance officers can tell you, one of the easiest and most consistent ways to build and maintain trust within the department and within the community it serves is consistent and productive training. Interactions with transgender people are no different — every department can benefit from annual and frequent training on the above issues as well as general methods of treating transgender individuals with respect, safety, and dignity.
Unfortunately, no department we reviewed had written policies mandating trainings for officers and only three had policies mandating training in their onboarding processes for new officers. Such trainings can be a great first step in modernizing the department, as well as setting a standard for officers and the community at large about the importance of respectfully and mindfully engaging with every member of the community.
Across the country, statewide and local groups led by and focused on transgender people are available to provide training to officers and staff. These groups can not only provide product training sessions, they can also serve as a direct conduit between departments and the broader LGBTQ communities in their jurisdiction. Many departments hold productive partnerships with such organizations, establishing a two-way channel that can help officers and departments engage with their communities through events, trainings, and conferences.
Transgender people are a tight-knit community used to supporting each other and helping each other when in need. They help establish informal networks to provide housing and safety to one another, as well as help to find affirming health care and emotional support. For police departments, however, this can also mean a report of mistreatment or humiliation — even if unintentional — can travel fast.
Trainings with community involvement are a great foundation to thwart such negative community relationships or heal previously damaged ones. Transgender people — like every resident of a jurisdiction — want a police department as concerned with their safety and property as they are protective of their rights and their privacy. But it is up to the leadership of every department to take the initial step of extending a hand to this marginalized community and modeling a true commitment to inclusivity for each of their sworn officers.