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Class action lawsuit demands ICE release all transgender detainees

Trans people in immigration detention ‘among the most vulnerable’ to coronavirus.

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Advocacy groups on Thursday filed a class action lawsuit that demands U.S. Immigration and Customs Enforcement release all transgender people who are in their custody because they are more susceptible to the coronavirus.

The Transgender Law Center and the Rapid Defense Network, along with Ballard Spahr LLP, a Philadelphia-based law firm, filed the lawsuit in U.S. District Court for the District of Columbia.

The lawsuit names as plaintiffs 13 trans women who are in ICE detention centers in Virginia, Louisiana, Texas, Colorado and California. Acting Secretary of Homeland Security Chad Wolf and U.S. Attorney General William Barr are named as defendants.

The lawsuit states trans people “in civil immigration detention — many of whom came to this country seeking safety from violence and persecution in their home countries because of their gender identities — are among the most vulnerable during the current pandemic.” It also says ICE “has not provided and cannot implement sufficient measures to curb the spread of COVID-19 in its facilities.”

One of the plaintiffs — a trans woman from Mexico who is in ICE custody at the Florence Correctional Center in Florence, Ariz., — says two of her fellow detainees who live in her pod have tested positive for the coronavirus.

Another plaintiff — a trans woman from El Salvador at the Winn Correctional Center in Winnfield, La., who has been in ICE custody for nearly a year — says nurses do not wear personal protective equipment and personnel at the facility have not provided her with information about the coronavirus. A trans Jamaican woman with HIV who is in ICE custody at the Nevada Southern Detention Center outside of Las Vegas says “staff … including medical staff, do not always wear gloves and masks.”

A trans Honduran woman who is in ICE custody at the Caroline Detention Facility in Bowling Green, Va., says it is “impossible for her to practice social distancing” because more than three dozen people live in her dormitory. Another trans Honduran woman who is detained at the Aurora Contract Detention Center in Aurora, Colo., claims she learned about “a confirmed case of COVID-19” at the facility while watching the news.

“Transgender people in civil immigration detention, as a group, are at a greater risk of contracting the virus that causes COVID-19 than the general population and, if they do become infected, are more likely to become seriously ill or die,” reads the lawsuit.

The lawsuit, among other things, notes trans people are more likely to have underlying medical conditions and have higher rates of HIV than other groups. The lawsuit also notes ICE detention centers “are plagued by chronic and well-documented failures to provide proper medical care to transgender people in civil immigration detention — problems that have been exacerbated by the pandemic and pose another enhanced risk of infection, disease and death for transgender people in civil immigration detention.”

Roxsana Hernández, a trans Honduran woman with HIV who was briefly detained at the Cibola County Correctional Center in Milan, N.M., died on May 25, 2018, while she was in ICE custody. Johana “Joa” Medina León, a trans Salvadoran woman with HIV, passed away at a hospital in El Paso, Texas, on June 1, 2019, three days after ICE released her from the Otero County Processing Center in Chaparral, N.M.

The families of both trans women have filed wrongful death lawsuits against ICE and the Department of Homeland Security that oversees it.

“ICE’s failures to provide adequate medical care during the pandemic — building upon its inability to do so even in the best of times — put transgender people in civil immigration detention at further risk of serious illness or death should they become infected with the coronavirus,” reads the lawsuit filed by the Transgender Law Center and the Rapid Defense Network.

“Because ICE cannot provide adequate medical care to them, transgender people in civil immigration detention should be released immediately to safer environments,” it adds.

ICE on its website says there are 287 detainees with confirmed coronavirus cases. These include one at the Caroline Detention Facility, two at the Winn Correctional Center and 10 at the Florence Detention Center.

The Transgender Law Center is among the dozens of advocacy groups that demanded the release of all trans ICE detainees in a letter they sent to Wolf and Acting ICE Director Matthew Albence on Jan. 21. More than 40 Democrats in the U.S. House of Representatives have made the same request.

ICE in previous interviews and statements to the Los Angeles Blade has defended its treatment of trans detainees.

A 2015 memorandum then-ICE Executive Associate Director of Enforcement and Removal Operations Thomas Homan signed requires personnel to allow trans detainees to identify themselves based on their gender identity on data forms. The directive, among other things, also contains guidelines for a “respectful, safe and secure environment” for trans detainees and requires detention facilities to provide them with access to hormone therapy and other trans-specific health care.

U.S. District Court Judge Jesus Bernal of the U.S. District Court for the Central District of California on Monday ordered ICE to “identify and track all ICE detainees with risk factors” and said it “should consider the willingness of detainees with risk factors to be released.” The ruling notes ICE as of April 4 will consider for release detainees who are over 60, detainees “of any age having chronic illnesses which would make them immune-compromised” and those who are pregnant or have given birth within the last two weeks.

ICE on Thursday told the Blade in a statement the agency “is reviewing cases of individuals in detention deemed to be at higher risk for severe illness as a result of COVID-19.”

“Utilizing CDC guidance along with the advice of medical professionals, ICE may place individuals in a number of alternatives to detention options,” said ICE. “Decisions to release individuals in ICE custody occur every day on a case-by-case basis.”

Statistics indicate ICE as of April 10 has released 693 detainees during the pandemic.

Immigration Equality last week said ICE released four of its gay clients with HIV who had been detained at the Winn Correctional Center; the Richwood Correctional Center in Monroe, La.; and La Palma Correctional Center in Eloy, Ariz. Trans Queer Pueblo, a Phoenix-based group that advocates on behalf of undocumented LGBTQ immigrants, says five LGBTQ asylum seekers who had been at La Palma Correctional Facility and the Eloy Detention Center, which is also in Arizona, left ICE custody on March 23.

The Eloy Detention Center in Eloy, Ariz., on July 22, 2018. (Washington Blade photo by Michael K. Lavers)

ICE on March 4 released Yariel Valdés González, a Blade contributor who won asylum based on persecution he suffered in his native Cuba because he is a journalist. Valdés had been in ICE custody in Louisiana and Mississippi for nearly a year before his release.

Los Angeles Blade contributor Yariel Valdés González shortly after his release from the River Correctional Center in Ferriday, La., on March 4, 2020. (Washington Blade photo by Yariel Valdés González)

ICE less than two weeks after Valdés’ release suspended in-person visitation at all of its detention facilities as part of its response to the pandemic. Media reports nevertheless indicate more than 30,000 people remain in ICE custody.

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U.S. Federal Courts

Justice Breyer announces his retirement from high court sets up new battle

President Joe Biden told reporters that he would have “more to say later” about Justice Breyer’s retirement

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U.S. Supreme Court Associate Justice Stephen Breyer (Photo Credit: SCOTUS official portrait)

WASHINGTON – U.S. Supreme Court Associate Justice Stephen Breyer, who had joined landmark decisions from the Court in support of LGBTQ rights, announced on Wednesday he’d retire, opening up a new battle over the judiciary and the potential for President Biden to add his first nominee to the high court.

First reported by NBC News, the retirement of Breyer, appointed by former Bill Clinton and confirmed in 1994, fulfills a wish among progressives for him to step down for him to step down to ensure a replacement would be named with Biden in the White House and Democrats in control of the U.S. Senate.

President Joe Biden told reporters that he would have “more to say later” about Justice Breyer’s retirement, but said that he was waiting for the justice’s own statement.

“There has been no announcement from Justice Breyer — let him make whatever statement he wants to make, and I’m happy to talk about it later,” the president remarked.

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Pennsylvania

Pennsylvania borough revokes protections for its LGBTQ+ citizens

The Republican-majority Chambersburg Borough Council made good on its promise repealing the ordinance in the 7-3 vote

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Chambersburg Borough Council voting to repeal protections for LGBTQ residents (Screenshot via ZOOM)

CHAMBERSBURG – The council of this central Pennsylvania borough (town) met on Monday, and voted to repeal an ordinance passed this last October that safeguards residents against discrimination based on their sexual orientation, ethnicity or gender identity.

The Republican-majority Chambersburg Borough Council made good on its promise repealing the ordinance in the 7-3 vote, citing a litany of reasons.

Opposition to the ordinance was led by newly installed borough council president Allen Coffman, a Republican. 

Coffman told Penn Live prior to the vote this past week that the ordinance serves no purpose and is redundant. He points out that Pennsylvania’s Human Relations Commission handles discrimination complaints from residents across the state.

“There are no penalties, no fines,” he said. “There’s nothing that the ordinance can make someone do. The most they can hope for is that the committee request the two parties to sit down with a counselor or mediator and talk about it. Quite frankly there is nothing that compels them to. There’s no teeth in this.”

“We are a very diverse community,” said council vice president Bill Everly, a lifelong resident. “For that reason I don’t understand why we need to have special protections for people. I think by creating special protections for people we open the door for other protections for other people. I think we need to come together and not divide us. I think this would divide us.”

“I don’t know of any reasons for repealing it other than a political move,” said Alice Elia, a Democrat and the former Chambersburg borough council president. “This issue should not be politicized. It’s an issue of justice and having equal protection for everybody in our community. It shouldn’t be a political or a Democratic or Republican issue. This should be something we are all concerned about.”

For more than three hours, council heard the impassioned pleas from scores of borough residents, overwhelmingly speaking out in support for the ordinance. Only a few borough residents spoke in favor of repeal, Penn Live reported.

Some visibly overcome with emotion, resident after resident implored council members to keep intact the ordinance citing a litany of personal challenges faced as members of the LGBTQ community, while others spoke about the stain on the reputation of the borough if repealed.

“It feels like we are going backwards,” said Kierstin Stockum, a borough resident. “This is just protecting somebody. Why would we not want that as a community? A repeal says we not welcoming to anybody whether LGBTQ or not. It’s saying we discriminate here. Why would we want to send that message?”

Dawn Abraham, a high school teacher and cosponsor of the gay-straight alliance, noted that the LGBTQ population at Chambersburg High School had grown exponentially in recent years.

“Kids are reporting being bullied, being pushed down the stairs, barked at and called multiple expletives,” she said. “By pulling support for this you are showing our community that you don’t support the school children in the community.”

The Commonwealth of Pennsylvania is one of the 27 states in the nation that have no explicit statewide laws protecting people from discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations.

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Federal Government

Federal Bureau of Prisons revises manual for incarcerated Trans people

“Transgender Offender Manual,” improves policies relating to the housing and treatment of transgender people in federal custody

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Los Angeles Blade file photo/screenshot

WASHINGTON – The federal Bureau of Prisons issued this week long awaited revisions to the “Transgender Offender Manual,” improving policies relating to the housing and treatment of Transgender people in federal custody.

The new Manual rescinds the transphobic language added by the prior administration that weakened protections for incarcerated Trans people– who are already 10 times more likely than the general prison population to be targeted for violence – and undercut compliance with the federal Prison Rape Elimination Act (PREA) and constitutional protections. 

Among other changes, the updated guidance requires that in making housing unit and programming assignments serious consideration must be given to an incarcerated Trans or intersex person’s own views with respect to their safety. It explicitly states that deliberately and repeatedly mis-gendering an inmate is not permitted. And it includes a process for an incarcerated person to receive gender-affirming surgery.

In 2018, Lambda Legal and the Southern Poverty Law Center sued the U.S. Department of Justice and the BOP for documents and communications connected to the Trump Administration’s harmful and discriminatory changes to the Transgender Offender Manual

“The federal BOP has issued important new guidelines that will hopefully help keep Transgender people in its custody safe and provide access to life-saving healthcare including gender-affirming surgery,” said Richard Saenz, Lambda Legal Senior Attorney and Criminal Justice and Police Misconduct Strategist. “This reaffirms the constitutional rights of incarcerated Transgender people and should be an example for state prisons systems and local jails to do their duty to keep people in their custody safe.” 

“We would like to thank the BOP and our partners for working on these changes. And would like to thank Senator Brian Schatz (D-Hawai‘i) for his calls to reverse the previous administration’s harmful changes to the manual,” Saenz added.  

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