By Elizabeth Thompson
Ashlee Inscoe is 40 years old, and she describes herself as “an interesting woman.”
“I was born in 1980, and a doctor misgendered me as a boy, and it was solely on the appearance of my genitalia,” Inscoe said in a phone call from Avery Mitchell Correctional Institution for men. The call was featured during an Instagram live webcast hosted by the House of Kanautica, a group that advocates for the release of Kanautica Zayre-Brown, a transgender woman incarcerated in North Carolina. The group also presses for the release and accommodation of other incarcerated transgender and gender non-conforming people in North Carolina and the south.
Inscoe is intersex, and she is incarcerated at a facility for men and must sleep and shower around men. Inscoe has been raped by men in a men’s prison and contracted HIV as a result.
Intersexuality is a blanket term that applies to people born with sex characteristics that don’t fit the gender binary, whether it be because of their chromosomes, gonads or genitalia. It’s hard to say how many people are intersex due to doctors’ subjectivity upon delivery, but sex differentiation specialists are called in for about one in 1,500 to one in 2,000 births, according to the Intersex Society of North America. Some experts say that one to two in 100 people born in the U.S. is intersex.
For generations, intersex people argue that physicians and parents “chose” what sex children would be because they performed early surgeries on these children, which sometimes led to later challenges.
Existing on the outside of the gender binary has made life difficult for her, Inscoe said. She has felt forced to conceal her true self and still faces “struggles throughout my life that were scarred because of my genitalia.”
Inscoe spoke on House of Kanautica’s Instagram live for Intersex Awareness Day, designed to highlight the human rights issues intersex people face every year on Oct. 26.
“I don’t want somebody else to have to go through the struggles that I did,” Inscoe said. “Or they wind up making the wrong decisions and land in prison, and they have to deal with the same issues. It’s hard to do.”
North Carolina’s prison system houses 103 transgender and five intersex incarcerated people, according to the Department of Public Safety (DPS) spokesperson John Bull. But the prison system operates on a gender binary, meaning that while the Prison Rape Elimination Act mandates that prisons make individualized decisions on where to house transgender and intersex people, they are often put in facilities that align with their sex at birth.
When incarcerated people are processed in the system, they are housed in either male or female facilities. For people whose very existence challenges that binary, such as transgender, intersex and nonbinary people, that means their identity is at odds with the system from the get-go.
“We’re working from a deficit from the moment that we’re in custody,” said eli dru, director of communications at the Transgender, Gender-Variant and Intersex Justice Project (TGIJP).
Gender in prison
It is no secret that the United States prison system is predominantly male. In North Carolina, women make up just 7 percent of the whole system. That means there are often fewer facilities, resources and opportunities for them, said Kristie Puckett-Williams, statewide campaign for Smart Justice Manager for the American Civil Liberties Union of North Carolina.
Even though the female prison population has grown twice as fast as the male one in the past 35 years, prisons are still overwhelmingly male and often function with men’s needs in mind.
“The treatment of women and girls, in general, is ad hoc,” Puckett-Williams said. “Inside of carceral spaces, women and girls are just added in.”
If it’s hard for women to get the resources they need, Puckett-Williams said, it’s even harder if you exist outside of the gender binary.
“When … you have people that don’t fit into one category cleanly or they don’t identify with the category that you put them into, it really exposes what’s been a fundamental problem with carceral spaces is that there is overall punitive retributive nature to it,” Puckett-Williams said.
Everyone in carceral spaces is “grappling” for care, food, space and attention, Puckett-Williams said, and people outside of the binary are the people who are most marginalized.
Transgender people and others who exist outside of the gender binary can face prejudice, bullying and sexual assault and harassment from prison guards and other incarcerated people, dru said.
“Oftentimes they segregate trans people by putting them into the hole because they tell them that’s for their safety,” TGIJP’s dru said. “That’s such a common thing.”
Experts consider prolonged solitary confinement in “the hole” psychological torture, especially for incarcerated people with mental health conditions or psychosocial disabilities. People in solitary confinement often spend 23 hours a day isolated in a cell the size of a parking space and receive their meals through a slot in the door.
The possibility of being put in solitary confinement also disincentivizes transgender and intersex people from speaking up, Puckett-Williams said.
“Oftentimes, people languish in their situation, meaning languish inside of cells, because at least they’re in community with other people, at least they may be able to be a part of a community inside,” Puckett-Williams said. “Whereas if you are in solitary confinement, you’re not able to do that.”
The Prison Rape Elimination Act and preventative policies
There are laws that should help protect transgender and intersex people while they are in prison.
Congress passed the Prison Rape Elimination Act (PREA) in 2003 to “provide for the analysis of the incidence and effects of prison rape in federal, state, and local institutions and to provide information, resources, recommendations and funding to protect individuals from prison rape.”
Sexual assault was 13 times more prevalent among transgender incarcerated people, according to a 2007 study from the University of California Irvine.
“I think people make a lot of jokes in pop culture about prison rape being funny but it is, unfortunately, a real phenomenon,” said Elizabeth Simpson, associate director of Emancipate NC, an organization that argues for dismantling mass incarceration and structural racism. “And if you are a person who is a woman living in a men’s prison you are going to be extremely vulnerable, not just from incarcerated people, it’s from staff as well. Sexual harassment, groping, inappropriate strip searches, bullying.”
In an effort to prevent bullying and assault under PREA, an incarcerated person can ask to be moved to a different facility or receive special accommodations, such as the ability to shower privately.
In North Carolina, one transgender incarcerated woman has been transferred from a male prison to a female prison, Bull said. Zayre-Brown became the first transgender woman to be moved to a women’s facility after she received national media attention for her requests to transfer.
DPS has a policy for transgender people which designates Facility Transgender Accommodation Review Committees (Facility TARCs) to make accommodation decisions to comply with the PREA.
If a transgender person requests an accommodation, they have to go through medical and behavioral health evaluations, and the Facility TARC will decide whether to approve the accommodation. Routine accommodations include continuing hormone therapy, male or female undergarments, hygiene products, private showering and housing considerations. Other requests, such as gender identity consistent facility transfer, go to the Division TARC.
The North Carolina prison system has regular reviews in which auditors interview transgender or intersex people about how they are treated in a facility, check that facilities do not perform cross-gender searches, and ask staff about their training on receiving and housing transgender and intersex people.
Challenging the system
Simpson said that DPS’ policies are “facially compliant” with the PREA, but she questioned whether transgender and intersex people are actually being accommodated.
Simpson is currently advocating for Inscoe to be moved to a women’s facility. In a letter written on Inscoe’s behalf by Simpson and lawyers from TGIJP and interACT: Advocates for Intersex Youth, they argued that DPS’ refusal to transfer Inscoe is inconsistent with the PREA and violates her Eighth Amendment constitutional right to be free from cruel and unusual punishment.
“As an intersex woman who has suffered sexual violence and rape while incarcerated among men, and who fears for her own safety every day, it seems DPS has only relied on the sex she was assigned at birth in making her placement determination,” the letter said.
DPS said that Inscoe is receiving “constitutionally adequate medical care” in a response letter.
“Ms. Inscoe’s management has been, and will continue to be, fully in line with the requirements of NCDPS policy, the national PREA standards, and applicable constitutional standards,” Deputy General Counsel Jodi Harrison said in the letter.
Inscoe has also struggled to get a gonadectomy approved by DPS, which doctors recommended she have performed due to the risk of cancer. Simpson said Inscoe was recently told that surgery was approved.
“If I was at a female facility, they wouldn’t hesitate to do it,” Inscoe said. “But in a male facility if they remove ovaries out of an inmate housed in a male facility, then there’s more proof that they’re housing a woman here, which they shouldn’t be doing.”
Simpson has filed a writ of mandamus to compel the prison system to move Inscoe, arguing Inscoe is a woman and should be thus housed in a women’s facility. She will soon be filing to get the writ of mandamus for a court hearing.
Inscoe is not the only person outside of the gender binary who has struggled to receive accommodation. A 2020 NBC investigation found that out of 4,890 transgender state prisoners in 45 states and Washington, D.C., it could only confirm 15 cases where a person was housed according to their gender identity.
Zayre-Brown, the only transgender woman to be moved to a female facility from a male one in North Carolina, is still fighting for gender-affirming surgery, NC Policy Watch reported.
Chance for change
During President Joe Biden’s campaign, he recognized the challenges incarcerated transgender people faced and pledged to require the Bureau of Prisons to revise the Transgender Offender Manual, rolled back during the Trump administration. The Justice Department is reviewing its policies for housing incarcerated transgender people.
The Biden administration held a roundtable on Intersex Awareness day and Biden issued a statement on Transgender Day of Remembrance to commemorate the record amount of transgender people killed in the U.S. this year.
“In spite of our progress strengthening civil rights for LGBTQI+ Americans, too many transgender people still live in fear and face systemic barriers to freedom and equality,” Biden said. “To ensure that our government protects the civil rights of transgender Americans, I charged my team with coordinating across the federal government to address the epidemic of violence and advance equality for transgender people.”
Some advocates for justice-involved transgender, non-binary and intersex people argue that policies are not the answer.
“There’s no making you safer inside of there because no amount of policies are going to protect you from the actual system itself,” dru said.
People outside of prison advocating for those on the inside can make all the difference, dru said. Organizations such as Black and Pink pair people on the outside with people in prison.
“The majority of the people who are incarcerated are, regardless of how they identify, there due to trauma,” Puckett-Williams said. “And if we really want people to be better, and to do things differently, we have to respond to their trauma, not further increase that trauma.”
“By locking people away, we are just compounding the trauma that they’re already experiencing.”