Warren's Transgender Inmate Stance Counters Her 2012 Position
Elizabeth Warren has a plan for everything, it seems, even for the regulations that govern the incarceration of transgender individuals in federal prison.
Ahead of a town hall on LGBTQ issues, the surging Democratic presidential candidate announced plans to abolish solitary confinement, end the policy of assigning prisoners to facilities based on their biological sex, and even spend taxpayer dollars on sex-reassignment surgery.
“I will direct the Bureau of Prisons to end the Trump Administration’s dangerous policy of imprisoning transgender people in facilities based on their sex assigned at birth and ensure that all facilities meet the needs of transgender people,” she writes on her campaign website, “including by providing medically necessary care, like transition-related surgeries, while incarcerated.”
The Warren plan would affect a prison population of just 473 self-identifying transgender offenders, a fraction of the 184,000 total federal inmates, according to most recent BOP numbers. All the same, the social justice overture could have a ripple effect.
While the Trump campaign doesn’t comment on every policy proposal released by each of the candidates lining up for a chance to challenge the president, it was quick to weigh in on this one. “Taxpayer support of this defies common sense,” Communications Director Tim Murtaugh told RealClearPolitics.
Before winning her first election, Warren may have agreed with Trump. Running for Senate in 2012, the then-Harvard law professor opposed a federal court order to grant a convicted murderer’s request for a sex-change operation. “I have to say,” she told a local radio station, “I don't think it's a good use of taxpayer dollars.”
The inmate never got the sex-reassignment surgery; an ensuing legal battle ended at the steps of the Supreme Court, which refused to hear the case. Meanwhile, Warren became a U.S. senator in a lopsided election, and a progressive star was born.
A spokeswoman for the Warren campaign declined to comment for this article.
The candidate’s current stance would reverse policy established by the Trump administration last year that requires inmates to be housed in federal prisons according to their biological sex. “The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases,” updated guidance in the Transgender Offender Manual states.
Earlier regulations put in place by the Obama administration gave prison administrators more leeway in deciding where to house transgender inmates. The impetus for Trump’s 2018 change was a lawsuit brought by four Christian women in a Texas prison.
They filed a “gender discrimination” complaint, alleging that the Obama administration had violated their Eighth Amendment rights by subjecting them to “cruel and unusual” punishment when they allowed men who identify as women to be housed alongside them behind bars.
The complaint alleged that the policy created “a situation that incessantly violates the privacy of female inmates; endangers the physical and mental health of the female Plaintiffs and others, including prison staff; [and] increases the potential for rape.”
The Trump administration found that argument persuasive and made the change. But transgender advocates also cite the risk of rape as the reason why transgender individuals shouldn’t serve time with inmates of their original biological sex.
“The extreme rates of physical and sexual violence faced by transgender people in our nation’s prisons is a stain on the entire criminal justice system,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a May statement. “Instead of leaving the existing policy alone, the administration is clearly prepared to encourage federal prisons to violate federal law and advance its own inhumane agenda.”
Presidential candidate Warren apparently no longer holds the beliefs that Senate candidate Warren did in 2012. On other LGBT issues, though, the Massachusetts senator has been remarkably consistent.
She has long been an advocate for gay marriage, even pushing then-President Obama on that front. “I want to see the president evolve,” she said during her Senate run, “because I believe that is right; marriage equality is morally right.” She won accolades at a forum on gay issues hosted last month by the advocacy group GLAAD. In emails, her staff regularly cite the gender pronouns they wish to be referred to by.
With her evolution on transgender prisoners, Warren now seems completely within the fold of the woke social liberals lining up for a chance to take on Trump. Her update on policy also reflects broader changes in the Democratic Party. During his first campaign, Obama shied away from gay marriage in favor of “strong civil unions.” He didn’t endorse full marriage equality until 2012.
Less than a decade later, Warren is in a virtual tie for first place in the polls with former Vice President Joe Biden. Earlier in the week, she was the first Democrat to surpass him in the RealClearPolitics polling average. With that new momentum and the blessing of social liberals, Warren is running competitively for president on a platform that, by supporting federal funding for sex-change operations of federal prisoners, goes well beyond positions past Democratic candidates could have contemplated championing.