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Hastings Race and Poverty Law Journal

Authors

Angela Okamura

Abstract

This note examines the failure of federal and California law to protect perhaps its most vulnerable population: transgender prisoners. Although California expresses its concern for the safety and well-being of transgender individuals in other areas of the law, rights for transgender inmates get left in the dust. Transgender inmates are disproportionately likely to be sexually abused in prison, and their safety is not adequately assured under the current state of federal or California law. Currently, when classifying and housing prisoners, officials of the California Department of Corrections and Rehabilitation ("CDCR") are only required to look at factors that point to potential aggression, not those that point to potential victimization. This note argues that by requiring prison officials to consider safety concerns based on the risk of victimization, and therefore sexual orientation or gender identity, the CDCR will be held liable for attacks on transgender inmates if they house such inmates without any regard for their concerns, and it will reduce sexual violence against transgender inmates. While the recently published National Prison Rape Elimination Commission Report takes some steps in this direction, it is ultimately up to California to adopt affirmative legislation that explicitly protects transgender inmates.

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