Transgender Criminal Justice: Ethical and Constitutional Perspectives

Abstract

People identifying as transgender or gender nonconforming (TGNC) face increased discrimination, harassment, and victimization compared to cisgender individuals (whose experienced gender matches their sex assigned at birth). Despite these increased discriminatory experiences, TGNC populations report hesitance to seek assistance from the criminal justice system due to concerns regarding revictimization and criminalization. TGNC individuals face an increased risk for interacting with the criminal justice system as a result of homelessness, socioeconomic status, and historical criminalization of their identities. Many TGNC individuals who experience incarceration report not only discrimination and verbal harassment but also physical and sexual abuse at the hands of criminal justice employees and other inmates. Thus, the incarceration experiences of TGNC individuals differ substantially from those of cisgender individuals. The negative implications of this differential are further exacerbated by a noteworthy lack of structured protocols regarding treatment of TGNC inmates. Existing policies violate the Eighth Amendment to the U.S. Constitution. The present article examines these arguments in relation to the American Psychological Association’s ethics code and relevant specialty guidelines and proposes ways that psychologists working with these institutions could apply their knowledge and skills to reduce human rights violations.

Keywords:

• Eighth Amendment
• ethics
• gender nonconformity
• incarceration
• transgender