Lawyers fight for release of trans inmates as pandemic puts them at higher risk

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Task force says transgender people are particularly vulnerable in jails and prisons.

Lawyers are arguing that New York state should release transgender inmates from its jails and prisons because they are particularly at risk during the coronavirus pandemic.

While some transgender inmates have underlying conditions that the Centers for Disease Control has said puts all people at risk for serious illness from the coronavirus — HIV, asthma, heart conditions, diabetes — they are at a higher risk of being the victims of violence, including sexual violence, than are cisgender inmates.

The experience and fear of such violence can exacerbate the dangers transgender inmates face from the virus, said Mik Kinkead, a staff attorney with Legal Aid's Rikers Island Civil Re-Entry Project who was named last year to a task force appointed by the New York City Board of Correction to identify and address issues confronting transgender, nonbinary, intersex, and gender nonconforming inmates.

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All of the transgender women Kinkead and his colleagues are advocating for are incarcerated in men's facilities.

Kinkead says he has consistently heard from clients that they have either a cloth mask or a thin handkerchief to use for protection against virus transmission for a week at a time that they must then wash and reuse, or they might have a paper mask intended for one-time use.

"For a lot of our clients who are really scared about leaving their cells because of harassment and violence they face, they sometimes don't wash their mask, because they're afraid of the bathroom or sink area and what might happen to them," Kinkead said.

Kinkead said the lawyers have spoken to prisoners all over New York state, including at Sing Sing Correctional Facility, Eastern Correctional Facility, and Woodbourne Correctional Facility.

The public push to release the at-risk transgender inmates began in April. Some members of the task force signed a letter requesting the inmates' immediate release addressed to New York Gov. Andrew Cuomo; New York City Mayor Bill de Blasio; acting New York Department of Corrections and Community Supervision Commissioner Anthony J. Annucci;and assistant district attorneys Cyrus Vance, Eric Gonzalez, Melinda Katz, Darcel Clark, and Michael McMahon.

New York City public advocate Jumaane Williams and seven New York City council members also signed on to the letter, which was supported by more than 40 organizations, including Lambda Legal, New Pride Agenda, the Legal Aid Society, and the Sylvia Rivera Law Project.

Kinkead said that because incarcerated people don't have regular access to the news, they often have to take cues on safety measures from correctional officers. Some of the officers, such as those at Sing Sing, wear masks and try to keep to social distancing, Kinkead said, but such safety measures are far less enforced the further away you are from New York City.

So far, the Legal Aid Society has filed petitions seeking the release of two people: a transgender woman referred to as A.A. and a transgender woman named Cathy Citro. Kinkead said Legal Aid has been interviewed around 30 incarcerated people and two or three more could have petitions filed on their behalf soon. Most of the people Kinkead is in touch with are transgender women, but the Legal Aid Society has spoken with a few nonbinary people and transgender men as well.

A week ago, A.A., who works as a cleaner at the prison where she is being held and is living with HIV, said she doesn't see how she can stop cleaning, for her own safety, without incurring penalties.

"I asked her, can you say, 'It's not safe for me. I might get sick,’ and she said, 'I can do that but I could get a disciplinary ticket and I might go to solitary.' In that phone call, she did not report feeling sick or any other symptoms, but we are worried she could at any time because she's walking all over the prison she's engaging in cleaning," Kinkead said.

As of May 30, the New York State Department of Corrections and Community Supervision said there were 507 total positive coronavirus cases, 439 recovered cases, and 16 deaths. There were 1,277 confirmed cases among staff and 71 among parolees as of May 31.

The Legal Aid Society has been critical of the information released by both the New York City Department of Correction and the Correctional Health Services, however, and said in March that there isn't enough data transparency. The numbers may also be higher because a low number of people are tested regularly, epidemiologists have said.

Citro, a 63-year-old transgender woman with diabetes, asthma, and high blood pressure who is eligible for parole in December, recently had a serious kidney infection that led to a urinary tract infection. She was hospitalized, and on May 8 she had a temperature of 103.6 degrees. Citro was found not to have the virus, but because she was sick it was harder for the lawyers to get in touch with her.

There are a number of reasons why transgender, nonbinary, intersex, and gender non-conforming people are particularly vulnerable when they're incarcerated. Transgender people everywhere face many hurdles in accessing appropriate health care. They deal with discriminatory insurers and doctors, and with doctors who aren't trained to provide health care specific to their needs.

"We have huge areas of our health that are undercared-for and that's why there is such a volume of HIV rates and things like blood pressure and diabetes," Kinkead said. "Our bodies are particularly stressed, and you add to it that single woman we're working with, on these routes or potential routes, is in a men's facility. She's constantly on high alert for physical violence, sexual violence, or harassment." 

Kinkead noted that there have been mixed reports of how prisoners are treated in quarantine, with some people having greater access to soap and showers and regular wellness check-ins and others being left alone for days without access to masks or more soap.

In addition, almost three-quarters of these clients have suffered intense trauma stemming from sexual abuse, homelessness, and other experiences that are constantly retriggered in men's facilities. Stress can exacerbate existing health problems or create new ones, Kinkead said.

Fallout from the pandemic can also result in increased violence against trans prisoners who are already at higher risk for sexual assault.

"As officers get sick and have to call out of work and nurses and medical practitioners have to call out of work, the prisons deteriorate, and so there's not much structure, and that means more space for violence," Kinkead said. "We're very concerned that a lot of the folks we're working with, who have already survived horrific acts of violence in the prison system, are now more vulnerable."

Kinkead has said that an assistant attorney general suggested that one client who had suffered such violence, an incarcerated, elderly, and ill trans woman, not pursue litigation and that there hasn't been a response from the governor on the issue.

There are two transgender women who Kinkead argues should be released given their unique medical needs, the pandemic, and jail conditions, but it's not clear if the New York City jail can release them since they're in state custody. A request for a writ of habeas corpus, which is used to bring a prisoner to court to determine if their detention is valid, was submitted for one of the women but was ultimately denied.

When reached for comment, New York Gov. Andrew Cuomo's office mentioned his recent comments on prison populations and the pandemic. Cuomo told MSNBC's Chris Hayes in March, "We passed one of the most sweeping bill reform bills in the history of the State of New York so we're incarcerating fewer people than ever before and taking special measures for this virus situation. For example, we're releasing people who are in jails because they violated parole for non-serious reasons. And wherever we can get people out of jails, out of prisons, now we are. We also put in additional protections in the prisons to try to protect both the workers and the prisoners."

The New York state Department of Corrections and Community Supervision has said it is reviewing the cases of prisoners who would have been released within 90 days. On March 27, Cuomo directed the department to release low-level parole violators from local jails, and it identified people under parole supervision who were detained in a local jail due to a warrant from a parole violation. It also cancelled some parole warrants. The state subsequently released 791 parole violators, of which 300 were in New York City.

More than 2,600 inmates were released from Rikers Island by mid-May.

Published with permission of The American Independent Foundation.