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June 29, 2015

New ICE Transgender Measures Improve But Do Not Solve Detention Problem

New York, NY – Today, United States Immigration and Customs Enforcement (ICE) issued a memorandum detailing a number of changes in how it intends to treat transgender people in immigration detention facilities. Immigration Equality is encouraged to know that ICE has formally recognized the special vulnerability of transgender immigrants. The new policy prohibits discrimination or harassment “of any kind” based on sexual orientation or gender identity. It also notes that ICE is committed “to provide effective safeguards against sexual abuse and assault for all individuals detained.” As the largest legal service provider for LGBT immigrants, Immigration Equality welcomes these sentiments. However, mitigating a problem and fixing it are not the same thing. The quickest, the most humane, and the most cost-effective way to keep transgender immigrants safe is to stop detaining them in the first place.

Some of the new measures ICE has created respond to the unique vulnerabilities of transgender people. For example, ICE directs its personnel to inquire respectfully about an individual’s gender identity and to use that information in considering whether or where to detain someone. It also creates privacy protections for transgender immigrants and introduces a national coordinator to monitor the detention of LGBT people. However, while the language of the memorandum suggests that some transgender women may be housed with other women, it does not explicitly require ICE to do so. This is a big mistake. “Transgender women cannot continue to be housed in men’s facilities. This outdated practice makes sexual assault of transgender immigrants an unacceptable and reckless inevitability,” said Immigration Equality Executive Director Caroline Dessert. Furthermore, the guidance issued today continues to justify the use of harmful forms of segregated housing “when necessary” and as a “last resort” for transgender people. But, given ICE’s acknowledgement of the special vulnerabilities of transgender immigrants, it seems likely that segregation will almost always be deemed to be necessary.

Unlike criminal incarceration, the purpose of immigration detention is not to punish, but merely to ensure that an individual appears for immigration court hearings. Transgender immigrants who have fled to the U.S. to seek protection from persecution and torture have every reason to go to court and to ask a judge to let them stay. The simplest solution for everyone is to stop detaining transgender immigrants at all. While Immigration Equality encourages any immediate harm-reduction efforts by ICE, we urge the government to remember that even prudent remedial measures are not an adequate alternative to the release of transgender detainees.

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Since 1994, Immigration Equality has been representing LGBT and HIV-positive asylum seekers, detainees, and binational couples, who are fighting for safety, fair treatment, and freedom. Immigration Equality represents people from around the world fleeing violence, abuse and persecution because of their sexual orientation, gender identity, and HIV status. Our team of legal experts has won asylum for more than 700 LGBT and HIV-positive individuals.