The Department of Justice has instructed inspectors to stop evaluating prisons and jails using standards designed to protect transgender, intersex and gender-nonconforming people from sexual violence, according to an internal memo obtained by NPR.
This population is uniquely vulnerable to attacks while incarcerated, data shows, and advocates say the change will put such people in even more danger.
The memo explains that DOJ is in the process of revising federal standards related to the 2003 Prison Rape Elimination Act (PREA) in order to align with President Trump's executive order on "gender ideology extremism." The Jan. 20 executive order asserts that the United States recognizes only two sexes: male and female.
According to the DOJ memo, while the revision process is underway, detention centers that undergo PREA audits will no longer be inspected using standards specifically designed to keep LGBTQ and intersex people safe. The facilities include federal prisons, state prisons and jails, juvenile detention centers and immigration detention centers. These inspectors, referred to as auditors, are not employed by the DOJ, but are hired by corrections agencies or by individual facilities. The DOJ certifies the auditors and can decertify them.
The DOJ did not respond to NPR's request for comment on the memo. But this is the latest policy move by the Trump administration that removes legal protections for trans people — particularly those who are incarcerated. In his first few days in office, Trump upended long-standing federal policies that would allow incarcerated trans women to be housed in a facility that aligns with their gender identity. Trump has also signed an executive order banning transgender troops from serving openly in the military and another restricting gender-affirming care for minors. These orders have faced a host of legal challenges and are still being fought in court.
PREA mandates regular audits for prisons and jails. Those audits are among the few oversight tools for evaluating whether detention centers follow laws meant to stop rape, harassment and retaliation.
Auditors visit facilities regularly to ensure the staff and officials are doing everything they are supposed to under PREA to prevent sexual abuse and harassment. They interview staff and inmates, tour the facilities and check existing procedures.
Linda McFarlane, executive director of Just Detention International, said this rollback "will immediately put people in danger." JDI is a human rights group dedicated to ending sexual abuse in detention. McFarlane also was involved in advocating for the passage of PREA in 2003.
"It's going to make people less safe," she said. "And when facilities are less safe for the most vulnerable and marginalized, they're less safe for everybody."
In practice, the memo says auditors will no longer review whether facilities house transgender people based on their gender identity and on a case-by-case basis. Among other changes, the memo also says auditors should no longer consider whether sexual assaults were motivated by gender-identity bias.
A major 2015 survey from the criminal justice group Black and Pink found that LGBTQ prisoners were over six times as likely to be sexually assaulted as the general prison population. This is based on survey responses from more than 1,110 inmates. According to Brenda Smith, a professor at American University Washington College of Law and director of The Project on Addressing Prison Rape, the available data doesn't show the whole picture and that rate could be higher.
(In 2003, Smith was appointed to the National Prison Rape Elimination Commission, which helped develop these very standards.)
She said the current changes laid out in the memo ignore this grim reality.
In the spring, the DOJ made massive funding cuts to crime-victim advocacy programs across the nation, including the National PREA Resource Center — the organization that trains auditors, tracks the outcomes of investigations and provides resources to victims and auditors. More than 360 grants were cut in April, but funding was reinstated for many of them following media reports of the cuts.
The DOJ at the time told NPR that it was "focused on prosecuting criminals, getting illegal drugs off of the streets, and protecting American institutions from toxic DEI and sanctuary city policies. Discretionary funds that are no longer aligned with the administration's priorities are subject to review and reallocation."
The standards designed to protect inmates from sexual violence were developed after years of bipartisan work. They were created in response to overwhelming data, anecdotal evidence and a landmark Human Rights Watch report that showed sexual violence was, and continues to be, a serious problem behind bars.
The most recent data from the Bureau of Justice Statistics shows that in 2020, correctional administrators reported 36,264 allegations of sexual victimization in prisons, jails and other adult correctional facilities. The allegations included incidents of sexual violence, harassment and misconduct carried out by inmates against other inmates and by staff members against inmates. The report said 2,351 of those allegations — a rate of 1.2 incidents per 1,000 inmates — were substantiated after investigation.
Lingering confusion
McFarlane's group, Just Detention International, says the DOJ memo lays out the government's plan to permanently revise the PREA standards and marks the first time the administration has publicly indicated what requirements it aims to remove.
But until the revisions are finalized through the ongoing rulemaking process, the memo instructs auditors to mark those standards as "not applicable" during audits — even though the rules technically remain in effect, according to the memo.
In a statement, the National Association of PREA Coordinators, a professional organization for coordinators who ensure agencies' compliance with the law, said that since the DOJ has not finalized any new regulations related to PREA, the current standards remain unchanged.
In the absence of a separate state or municipal law, the statement said, the DOJ memo allows each corrections agency or detention facility "to continue following the regulation or, if they choose, to ignore it."
The memo allows the DOJ "to implement the President's policy while allowing state and local governments to determine how to best meet the needs of incarcerated people who are transgender and gender diverse," according to the statement.
"Whether a system adopts a binary sex approach or one that recognizes a spectrum of gender, we cannot forsake our primary responsibility to keep the most vulnerable individuals in our care safe from those who present a threat of sexual abuse or sexual harassment," the statement said.
It's unclear how the DOJ plans to enforce the memo, and it's already sparked some confusion for at least one auditor.
Kenneth L. James, a PREA auditor for detention centers in multiple states, told NPR in an email that the memo makes the auditors' jobs "both more confusing and more difficult."
He said it will affect how the auditors are trained. "Some auditors have been auditing for over 10 years and conduct audits systematically," James said. "By removing these elements, auditors will have to reevaluate how they are auditing and may miscalculate compliance due to these unexpected changes."
But because PREA has been in place for more than 20 years and the prevalence of sexual abuse within the prison system is well-known, James said, "I believe and trust" that facilities "will do what is best for the incarcerated population."
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