Trump administration plans to end prison rape protections for trans and intersex people, memo says

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The Department of Justice (DOJ) plans to dismantle protections for trans and intersex people in federal, state and local prisons, jails and youth detention facilities, according to a government memo obtained by Prism.

The memo, dated December 2, takes aim at existing standards of the Prison Rape Elimination Act (PREA) that the department says do not comport with the Trump administration’s first-day executive order that, among other things, targeted protections for trans people behind bars. PREA was passed in 2003, and President Barack Obama added new protections for LGBTQIA+ people to the DOJ’s PREA rulebook in 2012.

The proposed changes would affect all facilities that are subject to PREA standards, including adult prisons and jails, lockups, community confinement facilities such as halfway houses, and juvenile facilities that are operated by the DOJ, state or local governments or by corporate or nonprofit organizations.

Facilities operated by other agencies, such as the Department of Homeland Security, are subject to their own detention standards.

The memo was sent by Tammie M. Gregg, the principal deputy director of the Bureau of Justice Assistance, to all DOJ-certified PREA auditors, who are the only people permitted to review whether facilities are following guidelines under PREA.

While the changes are not yet official, the memo instructs all PREA auditors to ignore those challenged provisions in their audits. It states that facilities “shall not be held to subsections of the PREA Standards that may conflict with” President Donald Trump’s anti-trans executive order until the updates are finalized.

Prism obtained the memo from a certified auditor.

Shana Knizhnik, senior staff attorney with the American Civil Liberties Union’s (ACLU) LGBTQ & HIV Project, told Prism that the memo has already created confusion about what standards facilities are still subject to.

“PREA is still the law,” Knizhnik said. “Standards that are in place are still the law, and so this is essentially a directive to disregard the law.” She also said nothing is stopping individual jurisdictions from continuing or enacting their own protections for trans, intersex, and other vulnerable populations in custody.

The DOJ did not respond to a request for comment on the memo, which comes after the agency removed questions about gender identity from the National Crime Victimization Survey, the Survey on Sexual Victimization, and the Survey of Inmates in Local Jails.

Experts with Just Detention International (JDI), an advocacy organization based in Los Angeles that aims to end sexual abuse in detention, anticipated that an announcement finalizing the changes is expected “any day.”

JDI’s Executive Director Linda McFarlane said in a statement that the changes “will lead to increased chaos and violence inside prisons and jails, placing staff and incarcerated people in greater danger.”

“The Department of Justice would rather see incarcerated people, including children, be sexually abused than allow trans people to express their gender identity,” McFarlane said. “It’s sickening.”

The planned changes to PREA specifically target rules regarding how trans and intersex people are screened for their risk of sexual abuse at a facility, as well as how facilities use that information to determine where trans and intersex prisoners are housed. The memo also threatens trans and intersex people’s ability to shower separately from other prisoners.

The changes also target review protocols for incidents of sexual abuse that take into account whether the abuse was motivated by, among other things, whether the victim was trans or intersex. The memo also mentions rules that bar strip searches and cavity searches of people by officers of different genders than the prisoners, except in specific circumstances, as well as employee training regarding how officials are required to treat and communicate with trans and intersex prisoners.

The planned changes take advantage of the fact that PREA itself does not explicitly protect trans or LGBTQIA+ people and would cement plans by the Trump administration to severely roll back policies that have provided crucial protections for trans and intersex people in federal prisons, jails, and youth facilities. PREA directs federal agencies to develop their own rules and guidelines to best reduce sexual assault inside prisons and jails.

The memo specifically cites an executive order, issued by Trump on the first day of his second term, that bars the federal government from funding gender-affirming care, mandates that trans women be housed in men’s prisons, and instructs the federal government to remove protections for trans people from PREA guidelines.

“In reality, we know that these policies not only put the most vulnerable people at risk, including trans and gender-nonconforming and intersex people in custody, but it has nothing to do with protecting anyone, including women,” Knizhnik said, referencing the Trump administration’s claims that its anti-trans policies are about protecting women.

On November 17, a federal judge blocked the Trump administration from withholding gender-affirming care to trans prisoners, extending a previous injunction in a class-action suit brought by the ACLU on behalf of trans people behind bars against the Trump administration over the gender-affirming care restrictions. The renewed injunction lasts until March 2026.

Experts at JDI and other organizations have repeatedly sounded the alarm about any rollbacks to protections for trans people behind bars given the disproportionate violence and abuse they face from other prisoners and prison officials alike.

According to survey data from the DOJ itself, incarcerated trans Americans experience sexual violence at more than 12 times the rate of other incarcerated people.

A February 2024 report from the Vera Institute of Justice and Black and Pink National also detailed the violence trans prisoners face in prison. Out of nearly 300 incarcerated trans people surveyed, 31 percent said violence from fellow prisoners is the principal reason they feel unsafe. Additionally, more than half reported being sexually assaulted during their current prison sentences.

And experts including Knizhnik reiterated that these proposed changes aren’t official until the end of the rulemaking process, which includes public comment. But even without official changes, Knizhnik said the plans effectively greenlight discrimination against LGBTQIA+ people.

“Regardless of what the government itself is actually doing, legally speaking, it’s providing an environment whereby individuals or public bodies who have ill intent towards our community and … are given essentially license to act on their bias, on their hatred,” she said.

McFarlane, of JDI, called changes to the PREA standards “reckless and dangerous.”

“It was already clear that the Trump administration does not think that transgender and intersex people have basic rights, let alone the right to exist,” McFarlane said. “These changes are a green light for predators to sexually assault incarcerated adults and children who are already disproportionately at risk.”

Prism is an independent and nonprofit newsroom led by journalists of color. We report from the ground up and at the intersections of injustice.

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