Tye Perez says, “Life molded me. Period. And I’m okay with that.”
Perez, who uses they/their/them pronouns, grew up in different states and cultures, experiencing urban and rural communities. A non-binary person of color, they received support and love from many family members, but also faced societal exclusion and discrimination. Their lived experience includes incarceration in jail before conviction and time in prison.
All of these experiences now inform their work as an advocate for gender justice and an advisor to criminal legal system practitioners on respectful and humane treatment of lesbian, gay, bisexual, transgender, and queer (LGBTQ+) people.
Perez explains that while many people think gender identity and sexual orientation are the same, this is not the case. Gender identity refers to how a person identifies themselves internally as male, female, or outside of that gender binary. Sexual orientation refers to a person’s physical, romantic, and/or emotional attraction.
Using correct gender identity terms, like a person’s chosen name and preferred pronouns, is a way to signal respect and courtesy. But in the criminal legal system, Perez said, LGBTQ+ people are often mocked for their identity.
“It’s not uncommon for staff to make fun of people for their gender identity and sexual orientation and choice of pronouns,” said Perez, who is non-binary. “It feels intentionally antagonizing. And that’s unfortunate because it’s just inhumane. It’s not physical abuse, but it is messing with a person’s mind and not respecting who they are as a person.”
While personally able to withstand the mocking, Perez witnessed others who acted out when some staff did not refer to them in a way that was true to their identity.
“Communicating with professionalism and respect with lesbian, gay, transgender, intersex, and non-binary people—whether they are our colleagues or system-involved—is a necessity for all of us working in the criminal legal system,” said Erica King, a senior manager at the Center for Effective Public Policy (CEPP) who oversees initiatives to advance gender-responsive and trauma-informed community justice.
Some people may find discussions about gender and sexual orientation frustrating, as it can feel like language and definitions continue to change. It can help to recognize that, while gender identity and sexual orientation have always been part of the human experience, our knowledge about the breadth of those experiences continues to grow. Hearing the stories of advocates like Perez helps us further increase our understanding.
LGBTQ+ people are overrepresented in every phase of the criminal legal system. Perez, who experienced the system pre- and post-conviction, describes their pretrial jail experience as being particularly difficult.
Perez shared one example of their treatment in jail. Perez was segregated in jail when menstruating and not given sanitary napkins for four days because the staff would make innuendos about being a boy. They were forced to sit in blood and says they “listened to staff being completely disrespectful, dismissive, and downright not care.”
“That’s an example that weighs on me,” Perez said.
Other treatment seemed arbitrarily based on strict binary gender codes, like what undergarments people were allowed to wear.
“In my case, I prefer a sports bra and looser boxers. But they forced me to wear traditionally female underclothes, which caused me skin irritation and breakouts. What difference does it make if I’m wearing male underclothes? They’re just going from one cart of clothes that says ‘female’ to another cart that says ‘male,’” Perez said.
Perez and King encourage system stakeholders and frontline staff to ask people about their gender identity, then have a checklist to provide for their needs, including something as simple as selecting male or female clothes.
“A little humanity and giving a person choice is giving them respect. In a system with little choice and autonomy, giving some back goes a long way,” King said.
Similarly, Perez said that transgender people on pretrial supervision should be asked if they prefer a male or female for supervision or things like drug testing.
“Communication is key,” they said. “Just ask, ‘What are your pronouns? Do you wear male or female underclothes?’”
Perez said housing instability, exclusion, and unmet mental health needs are enormous contributors to the involvement of LGBTQ+ people in the criminal legal system.
“Mental health and exclusion are huge things for LGBTQ+ people. People tend to push us to the side,” they said.
King says the chronic stresses of discrimination, housing instability, unmet mental health needs, exposure to adverse childhood experiences, and abuse may contribute to survival behaviors, like selling drugs, theft, or survival sex. This can increase the risk of criminal legal system involvement.
Disparities in LGBTQ+ experiences with the criminal legal system start with youth. According to the Prison Policy Institute (PPI), the barriers young people face often result from fleeing abuse or rejection at home because of their gender identity or sexual orientation.
Perez understands what it’s like to be marginalized.
At birth, their sex was described as female, but Perez said they always felt and knew they were different. At first, they identified as a tomboy and slowly became an “AG” (“AG is an LGBTQ+ term for “aggresive girl,” meaning masculine), cringing anytime someone told them to “act like a lady.” They experienced a lot of teasing from younger boys and spent a great deal of time in their bedroom listening to and writing music, which they now recognize as isolating.
“I notice now that I was isolating. I was body shaming,” they said. “I didn’t have the same support the younger generation has today to say, ‘This is how I feel. This is how I identify.’ My generation and the ones before me were out there in the field fighting for those rights, remembering protests in the West Village of New York City.”
Transgender people, especially those without access to adequate care, often experience serious mental health issues, substance abuse, suicide, and early mortality in jails, King said.
These risks can be exacerbated when medical treatment is stopped or unavailable. Lack of treatment can worsen gender dysphoria, which advocates cite as a prominent driver of substance abuse and addiction among transgender individuals.
“Access to medication is a huge issue. When transgender people stop taking them, it reverses what they worked so long and hard for and exacerbates mental health issues,” Perez said. “When Shawn, who was Shana, is not getting their testosterone shots, they experience soreness in their body, and swelling, and they backtrack mentally, and that’s a problem because they’re not going to be all there when presenting in front of the judge.”
Transgender inmates face an incredibly high risk of victimization by violence, and transgender women are at high risk of sexual violence and harassment in custodial settings, especially when placed in male facilities.
Perez said the risks for transgender people are real and include risks related to where people are placed.
“System stakeholders are talking about where to put people in jail. Ask them!” Perez said. “Determining where someone goes should be in consultation with the person, and you should discuss where they are in their transition because putting someone transitioning to male in a male jail pod can be really dangerous if the testosterone isn’t kicking in yet. The male pods are less safe and people are at risk of sexual assault and rape.”
The racial and economic disparities that plague the criminal legal system are multiplied for people with intersectional identities. In every part of the system, for example, from policing through to incarceration, transgender Black women with lower incomes experience disparate treatment related to their gender identity, race, and socioeconomic status. [1]
According to the National Transgender Discrimination Survey, while one in six transgender people have been incarcerated at some point, nearly half of Black transgender people have been detained in prison or jail. Transgender people are at risk of physical and sexual abuse in jail, with Black transgender people reporting much higher rates of assault. [2]
”Transgender people, particularly Black and Brown trans women, face incredible discrimination in society at large, and that vulnerability follows them into the criminal legal system. While transgender and nonbinary people have a right to protection, that right is often not upheld,” says King.
Register for the Gender-Responsive Services and Equitable Diversion Access Webinar with experts who will discuss gender disparities in the criminal legal system, explore gender-responsive programming, discover strategies for equity, and engage in a thought-provoking Q&A session.
King offers several recommendations to pretrial practitioners.
Collect data by race, ethnicity, gender identity, and sexual orientation. Then disaggregate the data and ask questions: Who in your system experiences segregation? Who is in your jail? Who receives diversion or pretrial services? What financial release conditions are set?
King notes that there are few gender and sexual orientation models for pretrial systems. She encourages systems to hire LGBTQ+ people with lived experience with the criminal legal system to walk alongside others and provide genuine support.
“LGBTQ+ people, especially transgender people and transgender people of color, need access to safe and sober housing, mental health care, substance use treatment, and medical care,” King said. Other supports include pathways to education and employment and support for children and primary caregivers.
“We all need to interrogate our own biases,” King said. “That means we try to understand if we are using our professional discretion to treat a person with dignity and humanity. Can we be sure our personal biases about race, sexual orientation, and gender are not pushing someone to the side who has a profound need for housing or mental health care?”
National Institute of Corrections LGBTI Policy Review and Development Guide
Sample policies addressing adult and youth LGBTQ+ needs in custody
National Center for Lesbian Rights
National Center for Transgender Equality
Supporting Pretrial Justice for Women
National Resource Center on Justice-Involved Women
Today, Perez is a house manager for a women’s recovery house in Maine. They mentor other LGBTQ+ people whose lives have intersected with the criminal legal system. Their commitment to family and their experience of love and support from their own family inspire them to support LGBTQ+ youth.
“When you have positive relationships, those people are the ones who support you and will stick by you. Love feels great.”
1. Incarceration as a Health Determinant for Sexual Orientation and Gender Minority Persons. Bacak et al., 2018.; Identifying and Ameliorating Lesbian, Gay, Bisexual, and Transgender Health Disparities in the Criminal Justice System. Kosenko & Nelson, 2018; Transgender Prisoners in Australia: An Examination of the Issues, Law and Policy. Lynch & Bartels, 2017
2. LGBTQ People Behind Bars: A Guide to Understanding the Issues Facing Transgender Prisoners and Their Legal Rights. National Center for Transgender Equality (2018); Injustice at Every Turn: A Report of the National Transgender Survey. National Center for Transgender Equality and National Gay and Lesbian Task Force. (2011)