Center on Sentencing and Corrections

Punishing the Innocent: How the Classification of Male-to-Female Transgender Individuals in Immigration Detention Constitutes Illegal Punishment under the Fifth Amendment

Punishing the Innocent: How the Classification of Male-to-Female Transgender Individuals in Immigration Detention Constitutes Illegal Punishment under the Fifth Amendment

Anderson, Laurel. “Punishing the Innocent: How the Classification of Male-to-Female Transgender Individuals in Immigration Detention Constitutes Illegal Punishment under the Fifth Amendment.” Berkeley Journal of Gender, Law & Justice 25, no. 1 (2010).

Many transgender immigrants come to the United States seeking asylum from persecution due to their gender identities. Despite their identities as women, most transgender women are held in male immigration detention facilities, where they are frequently the targets of assault and abuse. Often, detention facilities will place transgender immigrants in administrative segregation in response to their transgender identities or complaints they have made. In theory, this approach is supposed to be a protective, non-punitive measure, but in practice the conditions are as restrictive as some of the harshest forms of punitive segregation. In this article, the author argues that that the detention policies of Immigration and Customs Enforcement (ICE)—when applied to transgender immigrants—create an environment that constitutes punishment in violation of the Due Process Clause.

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Key words: immigration detention, segregation, administrative segregation, prison isolation, solitary confinement, vulnerable population, LGBTQ, transgender