WHEREAS, transgender individuals, who have a different gender identity than the gender to which they were assigned at birth, have become targets for politically motivated fearmongering and attacks.
WHEREAS, dehumanization of transgender persons has paved the way for measures denying them equal protection, stripping them of basic freedoms, and criminalizing basic aspects of their existence.
WHEREAS, transgender people, especially transgender youth and people of color, are overrepresented at every stage of the criminal legal system.
WHEREAS, transgender people are profiled and targeted for harassment and illegal stops by law enforcement, with 54% reporting interactions with the police and 22% reporting harassment due to bias.
WHEREAS, incarcerated transgender people face disproportionate harm, including placement in restrictive housing and denial of medically necessary health care;
WHEREAS, transgender people experience the highest rates of physical and sexual violence in jails and prisons, with one federal study finding that more than one‑third of transgender prisoners reported sexual assault within the previous year;
WHEREAS, inflexible policies governing gender classification and facility assignment significantly increase the risk of assault and the likelihood of placement in restrictive housing, including solitary confinement or other forms of protective custody;
WHEREAS, transgender women housed in facilities inconsistent with their gender identity face heightened vulnerability to physical and sexual violence;
WHEREAS, misgendering and ignoring a transgender person’s stated pronouns is associated with increased psychological distress, including heightened depression, anxiety, and reduced well‑being;
WHEREAS, despite the fact that gender-inclusive bathrooms are not related to any rise in crime in those spaces, two states have criminalized (and 20 states have otherwise restricted) transgender individuals’ use of public restrooms and other sex-segregated facilities that align with their gender identity;
WHEREAS, more than two dozen states have banned gender-affirming care for transgender youth, often by criminalizing either the doctors or the parents of transgender youth seeking to provide best-practice medicine for children in their care; therefore,
BE IT RESOLVED that NACDL opposes the criminalization and disparate policing of transgender individuals, and incarceration policies and practices that fail to protect the physical and emotional well-being of incarcerated transgender persons.
BE IT FURTHER RESOLVED THAT:
- Prison and jail placement for transgender people should be guided by gender identity, individual safety considerations, and the person’s stated preferences, rather than relying solely on genital anatomy. This approach reflects national standards, including the Prison Rape Elimination Act’s (PREA) requirement for individualized placement decisions and National Commission on Correctional Health Care’s (NCCHC) guidance emphasizing safety, dignity, and respect for gender identity. When practicable, facilities should consider the creation or use of specialized transgender housing units that enhance safety without resorting to isolation or segregation, consistent with PREA’s prohibition on using protective custody as a default solution.
- Gender dysphoria is a legitimate medical condition, and jails and prisons must provide clinically appropriate treatment (gender-affirming care) consistent with the evidence-based guidelines set forth by NCCHC.
- All law‑enforcement and corrections personnel must treat transgender individuals with dignity, use affirmed names and pronouns, and follow safety‑focused procedures consistent with PREA‑based protections and national professional guidelines. Staff should follow respectful search practices aligned with standards from knowledgeable organizations such as the National Commission on Correctional Health Care and the National Center for Transgender Equality. Agencies must require training in gender‑identity awareness, trauma‑informed communication, and lawful search practices, reinforced through regular refreshers. Facility leadership must be responsible for monitoring compliance and addressing misconduct to maintain a culture of respect and safety for transgender people in custody.
- NACDL opposes laws and practices that criminalize transgender people for using bathrooms consistent with their gender identity, criminalize gender‑affirming care for adults or youth, or contribute to the disproportionate policing of transgender communities through statutes related to sex work or HIV status. Such measures undermine civil liberties, public health, and equal justice, and conflict with evidence‑based standards recognized by major medical and legal organizations. NACDL is committed to advancing legal reforms that reduce overcriminalization and uphold the constitutional rights of transgender people.
- Legislative and governmental attacks on transgender people are not isolated injustices but part of a broader erosion of personal liberty that ultimately endangers everyone. When the state claims the power to police gender expression, restrict bodily autonomy, or criminalize identity, it sets a precedent that any group’s rights can be narrowed whenever politically convenient. Defending the rights of transgender people is therefore inseparable from defending the foundational principles of autonomy, privacy, and liberty that protect all people.
- NACDL affirms that criminal defense lawyers must treat transgender people with dignity, use their affirmed names and pronouns, and conduct all professional interactions in a manner that reflects respect and cultural awareness. Attorneys are encouraged to seek ongoing training on issues affecting transgender clients, including gender identity, trauma‑informed communication, and the legal challenges disproportionately impacting transgender communities. NACDL is committed to providing education, resources, and support to help defense lawyers build the cultural competence necessary to advocate effectively for transgender clients. Through these efforts, the Association promotes fair treatment, equal justice, and the highest standards of professional responsibility.
