The Department of Justice (DOJ) has instructed prison and jail inspectors to cease evaluating facilities based on standards designed to protect transgender, intersex, and gender-nonconforming individuals from sexual violence. This directive was communicated via an internal memo obtained by NPR.
Data indicates this population group experiences heightened vulnerability to attacks while incarcerated.
Policy Context
The memo explains that the DOJ is revising federal standards related to the 2003 Prison Rape Elimination Act (PREA). This revision aims to align with a January 20 executive order from President Trump, which states the United States recognizes only two sexes: male and female.
During the ongoing revision process, PREA audits conducted at detention centers will no longer include the specific standards intended for the safety of LGBTQ and intersex individuals. Affected facilities encompass federal prisons, state prisons and jails, juvenile detention centers, and immigration detention centers. Auditors, who are certified by the DOJ but not directly employed by it, are typically hired by corrections agencies or individual facilities.
NPR's request for comment from the DOJ regarding the memo did not receive a response.
Broader Administrative Actions
This policy adjustment follows other actions taken by the Trump administration that have modified legal protections for transgender individuals, particularly those in incarceration. Previous changes include modifications to policies governing the housing of incarcerated trans women based on their gender identity, an executive order restricting transgender individuals from serving openly in the military, and another limiting gender-affirming care for minors. These orders have faced legal challenges.
PREA mandates regular audits for prisons and jails, serving as an oversight mechanism for compliance with laws designed to prevent sexual abuse, harassment, and retaliation. Auditors conduct interviews with staff and inmates, tour facilities, and review existing procedures.
Impact on Auditing
The memo specifies that auditors will no longer assess whether facilities house transgender individuals based on their gender identity, requiring a case-by-case basis. Additionally, auditors are instructed not to consider whether sexual assaults were motivated by gender-identity bias.
A 2015 survey by the criminal justice organization Black and Pink reported that LGBTQ prisoners were over six times more likely to experience sexual assault compared to the general prison population, based on responses from more than 1,110 inmates. Brenda Smith, a professor at American University Washington College of Law and director of The Project on Addressing Prison Rape, noted that existing data may not fully represent the actual prevalence. Smith was a member of the National Prison Rape Elimination Commission, which contributed to the development of these standards.
Funding and Prioritization
In the spring, the DOJ implemented funding reductions for crime-victim advocacy programs nationwide, including the National PREA Resource Center, which provides auditor training, tracks investigations, and offers resources. While over 360 grants were initially cut in April, many received reinstated funding following media reports.
The DOJ stated at the time 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."
Original standards for inmate protection from sexual violence were developed over years of bipartisan collaboration, in response to data, anecdotal evidence, and a Human Rights Watch report highlighting sexual violence in carceral settings. The Bureau of Justice Statistics' most recent data from 2020 indicates 36,264 allegations of sexual victimization in adult correctional facilities, with 2,351 substantiated after investigation.
Implementation and Clarity
Just Detention International stated that the DOJ memo outlines a plan for permanent revision of PREA standards, marking the first public indication of the administration's intended requirement changes.
Until the revisions are finalized through the ongoing rulemaking process, the memo instructs auditors to categorize the affected standards as "not applicable" during audits, despite the existing rules technically remaining in effect.
The National Association of PREA Coordinators (NAPREAC), a professional body for PREA compliance coordinators, issued a statement clarifying that current standards remain unchanged until new DOJ regulations are finalized. NAPREAC noted that, absent separate state or municipal law, the DOJ memo allows individual corrections agencies or detention facilities the discretion to continue following or to disregard the regulation.
NAPREAC's statement emphasized the importance of ensuring the safety of vulnerable individuals from sexual abuse or harassment, regardless of whether a system adopts a binary sex approach or recognizes a spectrum of gender.
Kenneth L. James, a PREA auditor across multiple states, commented via email that the memo introduces complexity for auditors and will impact training protocols.