Minnesota’s transgender inmate issue: it shouldn’t be this complicated

This week Minnesota House Republicans brought forward HF 435, which seeks to prevent the Minnesota Department of Corrections (DOC) from housing biological males identifying as transgender females in the state’s only female prison in Shakopee. This is a commonsense bill that would help the DOC refocus placement of inmates in a setting that respects the safety concerns of all inmates and staff.

Background

In 2003 Congress passed the Prison Rape Elimination Act (PREA) to address incidents of harassment and sexual assault in jails and prisons across the country. In 2012 after years of review, the U.S. Department of Justice (DOJ) issued what are known as PREA Standards, which custodial facilities must abide by.

The Standards include mandates related to housing transgender inmates. 

What the Standards mandate: 

• Correctional officials must not be deliberately indifferent about the unique safety risks faced by transgender inmates.
• Screening of new inmates must take place within 72 hours of arrival to assess the risk of sexual victimization.
• Decisions on housing and program placement must be made on an individual, case-by-case basis and may not be made exclusively on external genital anatomy.
• Transgender inmates may not be involuntarily placed in solitary or protective housing based exclusively on gender identity.
• The gender identity of the transgender inmate shall be given serious consideration
• Necessary medical care, grooming standards, and clothing must be available to inmates based on their gender identity.

What the Standards do not mandate:

• Transgender inmates can dictate where to be housed based on their gender identity.

The Minnesota Department of Corrections has had transgender inmates in its custody for decades. It had never made the decision to house a biological male inmate identifying as a transgender female in the Shakopee women’s prison until it was sued in 2022. That suit was brought by Christina Lusk, a biological male inmate who identified as a transgender female. 

Lusk had begun identifying as a female about a decade earlier, had undergone breast augmentation and hormone therapy, but had not yet undergone full gender reassignment. Lusk’s name and gender were formally changed, which included updating his birth certificate to reflect being a female.

In 2019 Lusk was convicted of a serious controlled substance crime and after an intake assessment, the DOC placed Lusk in its Moose Lake facility for men, where Lusk was housed in a dormitory setting with several other men. Lusk filed several grievances requesting a transfer to the female prison in Shakopee because of safety concerns but was denied. Lusk was eventually moved to a single cell in Moose Lake in 2020 and eventually filed suit against the DOC.

The DOC failed in its effort to get the case dismissed, and in 2023 entered into a negotiated settlement, agreeing to move Lusk to the female prison in Shakopee and assist Lusk in obtaining gender reassignment medical treatment. Admittedly, the DOC handled the Lusk situation poorly, but it should not have made a bad situation worse. The DOC should have held firm on finding another housing option for Lusk that didn’t involve Lusk being housed with biological females. 

Lusk was the first transgender female inmate transferred to Shakopee. Four other transgender female inmates followed over many months. Lusk has since been released from custody, and at least one of the other inmates was subsequently transferred out of Shakopee for deviant sexual behavior.

According to the DOC, the three transgender inmates who remain at Shakopee are among 48 transgender inmates in its prison system. No biological female inmate identifying as a transgender male has ever been housed in a male prison.

A variety of reports indicate each of these transgender inmates maintains functioning male genitalia, and that they have a history of being sexually deviant and violent.

In 2024, the DOC adopted a new policy entitled: Management and Placement of Incarcerated People Who Are Transgender, Gender Diverse, Intersex, or Nonbinary.

The policy describes a gender identity committee responsible for making housing recommendations based on the following nine (9) criteria specific to the transgender inmate:

1) Views with respect to their own safety, which must be given serious consideration;

2) Assigned security level;

3) Criminal/adjudication and disciplinary history;

4) Gender expression;

5) Medical and mental health needs;

6) Programming and treatment needs and whether a particular facility placement can meet those needs;

7) Vulnerability to sexual victimization;

8) History of perpetrating physical or sexual abuse or engaging in sexually inappropriate behavior targeted at particular people; and

9) Any other individualized factors deemed relevant by the committee.

Unfortunately, the DOC appears to have focused entirely on these criteria, and not on several sections of PREA and its own policy which identify additional considerations relevant to placement of transgenders — those being: “whether the placement would present facility security problems,” and whether such placement “would pose a heightened risk of physical or sexual harm to the person or to others housed in the facility, or that the person is likely to engage in sexually inappropriate behavior there.” 

It should not be difficult to consider facility security problems or the heightened risk presented by placing biological males with intact male genitalia in coed housing situations. Articulating those concerns and working towards a more common-sense solution that keeps biological males and females separated has been made out to be more complicated than it needs to be.

House Public Safety Committee hearing

A former GED instructor for the DOC in Shakopee, Alicia Beckmann, testified about the absurd and dangerous practice of housing transgender inmates at Shakopee which she described as a “nightmare.” 

Beckmann described how holding “Town Hall” style meetings was the norm at Shakopee for nearly every issue, but when the DOC made the groundbreaking decision to send biological male transgender inmates to Shakopee there was no meeting, no forewarning, no discussion, no training, and no plan once they arrived. 

Beckmann described how the presence of the transgender female inmates made most of the female residents and staff uncomfortable and concerned for their safety, but that the DOC showed no interest in these concerns. Staff felt fearful of speaking out about their concerns.

Beckmann ended up resigning because of the situation and suggested the reason the DOC has had a problem maintaining staffing at Shakopee is because of its handling of the transgender issue.

Reduxx media has written about the situation in Shakopee (here and here). The accounts support Beckmann’s testimony and describe in detail many of the incidents that have led to concerns by inmates and staff: sharing showers, restrooms, and housing areas with transgender inmates having intact male genitalia; finding bottles in the shower area with ejaculate in them; a transgender inmate that has full blown conversations with themselves in a male and a female voice; a transgender inmate talking about rape and becoming physically aroused; a transgender inmate bragging that they “still had a working unit;” and a transgender inmate that had to be transferred out of Shakopee after repeatedly masturbating in front of inmates and staff.

The DFL representatives at the hearing universally dismissed the testimony and the legislation to prevent biological males from being housed in Shakopee. They called the effort “extreme” and dangerous, and one representative suggested the effort “criminalized” the transgender inmates “simply for being trans.” These comments were pure gaslighting and ignored the effort to simply recognize that the safety and security of the female inmates and staff in Shakopee also mattered.

At the end of the hearing the Chair “laid over” the bill for future action.

Take away

The DOC has failed to recognize that transferring several biological male inmates with intact male genitalia, many with histories of sexual deviancy, has created facility security problems, a heightened risk of physical or sexual harm to others housed in the facility, and the likelihood of sexually inappropriate behavior occurring in the Shakopee women’s prison. As such, the DOC has failed to abide by its own policy guidance.

PREA does not mandate that a transgender inmate’s gender identity can dictate where they are housed. It does mandate that several factors must be considered and articulated when determining transgender housing. That takes some effort, but it is not difficult, and the alternative should be unacceptable.

The DOC is fully capable of using its eleven (11) facilities to legally manage the housing locations of biological male and female inmates to ensure they remain separate.

It must stop the absurd practice of housing biological males with intact genitalia, who identify as transgender females, with biological female inmates.