Trans woman argues move to WA men’s prison is cruel punishment

A transgender woman filed a court petition Tuesday arguing that her transfer to a men’s prison, where she has been in solitary confinement for months, constitutes cruel punishment.

Amber Kim, 36, had been incarcerated at the Washington Corrections Center for Women in Pierce County for nearly four years, receiving gender-affirming care in gender-affirming housing. This June, she was transferred to the Monroe Correctional Complex, a men’s prison, after receiving an infraction, as HuffPost originally reported.

It’s the first time in state history that a transgender person has been moved from gender-affirming housing back to housing that aligns with the gender they were assigned at birth. Kim, through attorneys with the American Civil Liberties Union of Washington, filed a personal restraint petition in the state Court of Appeals arguing her incarceration in the men’s prison is cruel punishment. The Department of Corrections started a policy in 2020 allowing incarcerated people to request gender-affirming housing transfers, in addition to designating their preferred name and pronouns.

Kim’s transfer came about three months after she received an infraction for having sex with another incarcerated woman. The infraction report was leaked to a right-wing magazine and picked up by larger conservative media outlets, which misgendered Kim and implied it could not have been consensual. Kim says it was.

DOC policy says incarcerated transgender people placed in a gender-affirming facility may be transferred “due to documented, objective safety and security concerns.”

Chris Wright, a DOC spokesperson, said Tuesday afternoon that lawyers with the department have not had a chance to review the lawsuit, but the department typically does not comment on pending litigation.

“We are being denied our humanity”

Kim, who is serving a life sentence for two counts of first-degree murder, spent years at men’s prisons in Washington. There, she said she endured physical and sexual violence.

When she moved to the women’s prison in 2021, it was a “massive improvement” in her incarcerated life. There were other transgender women living there, and the majority of fellow incarcerated women treated her “like any other woman,” Kim wrote in her declaration to the court.

When she was moved to Monroe, Kim elected to be housed in solitary confinement rather than enter general population with men. She has been in solitary for about six months now, excluding a short transfer for gender-affirming surgery. She worries that being with the general population of a men’s prison, particularly now that she is further along in her medical transition, will only increase her risk of being harassed.

“We are being denied our humanity in a systemic way. … Being in isolation like this is soul-sucking,” Kim said from Monroe on Monday.

DOC staff apparently changed their minds about Kim’s placement in the spring, according to court documents.

A housing review completed a month after she received the infraction recommended Kim remain in women’s prison in general population. Weeks later, the team conducted another review and decided Kim should be transferred to a men’s prison.

“Due to the nature of the culture inside American prisons, where incarcerated individuals are not able to come forward with information that may lead to others getting into trouble without fear of reprisal, there is no sound practices for determining actual consensual sex,” the housing review stated.

Kim’s petition argues the recommendation to transfer her was “arbitrary, in bad faith, and lacking a legitimate penological purpose.”

Transgender people are 10 times more likely than cisgender people to be sexually assaulted by other incarcerated people, according to the 2022 U.S. Trans Survey.

“It catches her in this irony,” said Kim’s attorney, Adrien Leavitt. “Does she continue to (transition) in a way that is congruent to her? How much more violence and harassment does that open her up to?”

“A significant culture change”

The Department of Corrections settled a lawsuit last year by agreeing to provide gender-affirming care to incarcerated transgender, nonbinary and intersex people in its 11 state prisons. DOC is now in a three-year period to evaluate compliance and make any required changes. The terms of that settlement didn’t apply to housing, though.

The lawsuit, filed by Disability Rights Washington, alleged the state denied transgender people gender-affirming care in prison, discouraged them from transitioning, denied or interrupted hormone therapy and subjected them to strip searches from guards of the genders they were assigned at birth. Those conditions resulted in suicidal ideation and attempted self-surgery, according to the complaint.

In a statement sent to The Seattle Times earlier this year, DOC spokesperson Rachel Ericson said following the settlement “does involve a significant culture change for DOC, and there have been challenges along the way, but the agency remains committed to providing exceptional care for all individuals in our custody.”

About 2% of the incarcerated adults in Washington have self-identified as transgender or nonbinary — 284 people. The department has had 22 transgender people in a facility that aligns with their gender identity since starting the process of gender-affirming housing, according to DOC.

“So far, the majority of the transgender women and all of the transgender men have opted not to be placed in gender-affirming housing,” Ericson said. “Transgender men have told us they would not feel safe in an all-male facility and transgender women often state they prefer to be housed with men. Many have created communities in the men’s prisons and do not wish to leave their community.”

Gender-affirming housing remains relatively new for the department, Ericson noted. Most of the transgender people who are in gender-affirming prisons have spent time in men’s prisons previously, and can be returned there.

Housing decisions are determined by a case-by-case review process in the department. The decision is based on not just the safety of the individual, but the safety of the population where the individual will be housed, Ericson wrote.

“A transgender incarcerated individual’s views of their own safety is given very serious consideration,” Ericson wrote.

“Backsliding”

Advocates and other transgender incarcerated women have expressed concerns with their treatment from the Department of Corrections.

“It’s very disheartening that a year ago, I was actually really impressed with the direction that Washington DOC was going. They were actually in the process of becoming a national leader in transgender care for individuals who are incarcerated,” said Hailey Ockinga, the executive director of Beyond These Walls, an advocacy organization for incarcerated LGBTQ+ people.

“Just this last few months, they really started backsliding,” Ockinga continued. “We’ve increasingly heard more and more of transgender women who have been returned to men’s prisons in general population after their surgeries. They fear for their safety every single day.”

Aaricka Aasad, a 50-year-old transgender woman housed at Monroe Corrections Complex, said the treatment of trans people often varies depending on what facility they’re housed in. At prisons in more conservative areas of the state, she said, staff are more likely to misgender incarcerated people or ignore allegations of being preyed upon by cisgender men.

Aasad said she was previously promised she could transfer to the women’s prison if she remained infraction-free for one year. That date passed in March, Aasad said earlier this year.

“They hold grudges against us,” Aasad said. “They don’t want to see us succeed. … Behind the scenes, we are so degraded.”

Naomi White Eagle, another transgender woman housed at Monroe, received bottom surgery nearly 2 years ago. She hasn’t left a men’s prison despite applying for a transfer every six months from Monroe, where she says she has regularly experienced harassment and now has PTSD.

“I have a single cell, thank God. I don’t go outside myself. … I go out two times a day to eat and then shower,” White Eagle said.

Kim said she hopes that she’ll be returned to the Washington Corrections Center for Women. But she also hopes her petition “forces (the Department of Corrections) to reconsider how they treat incarcerated people.”

“Prison is supposed to be limited to a loss of liberty,” Kim stated in her declaration to the appellate court. “But prison is not supposed to include the loss of the pursuit of happiness.”