Shortly before his inauguration, President Joe Biden’s transition team promised that his administration would hold immigration authorities responsible for the inhumane treatment of transgender people held in immigrant detention facilities.
More than half a year later, however, the federal government’s policies on transgender migrant detention are effectively the same as they were under President Donald Trump—despite calls from former detainees who say that those policies are putting lives at risk.
“They want us to wait? We don’t have time—we don’t want to have another name added to the long list of people that have died in detention,” Jennicet Gutiérrez, a founding organizer with La Familia: Trans Queer Liberation Movement, told The Daily Beast on the steps of the National City Christian Church in Washington, D.C. on Wednesday. “We don’t want to wait for another case. We shouldn’t have to be detained in the first place.”
As Gutiérrez spoke, dozens of nearby people—some sporting artesanía-style face paint, others donning cardboard butterfly wings—prepared for a march on the White House in protest at the Biden administration’s continuation of Trump-era policies that force transgender women to be housed with cisgender men in immigrant detention facilities. The “No Pride In Detention” march, organized by La Familia, Mijente, the Black LGBTQIA+ Migrant Project and the Transgender Law Center, was intended to honor the lives of trans women who have died in the custody of immigration authorities—and to shame the Biden administration for not living up to the promises that he once made.
Biden campaigned hard on his longtime record of allyship with LGBT communities, and upon taking office issued a history-making memorandum directing the U.S. government to “ensure that United States diplomacy and foreign assistance promote and protect the human rights of lesbian, gay, bisexual, and transgender persons everywhere.”
“Transgender rights are human rights—and I’m calling on every American to join me in uplifting the worth and dignity of transgender Americans,” Biden tweeted on March 31, the Trans Day of Visibility. “Together, we can stamp out discrimination and deliver on our nation’s promise of freedom and equality for all.”
During the transition, Biden’s team told The Daily Beast that Biden would re-enforce a guidance memo enacted under President Barack Obama that intended to provide a framework for care of trans detainees, a “first step” toward addressing the concerns of advocates about mistreatment and inhumane conditions.
“President-elect Biden is committed to strengthening protections for LGBTQ+ immigrants, asylum seekers and refugees,” transition spokesperson Jamal Brown said at the time. “His administration will work to ensure LGBTQ+ immigrants, refugees and asylum seekers have access to necessary services and protections, invest in proven alternatives to detention and non-profit case management programs, and hold ICE and CBP accountable for inhumane treatment.”
But according to the “No Pride In Detention” organizers and their supporters, those promises have yet to be fulfilled.
“Biden and Harris actually have made so many promises during the first 100 days in office; they could have made so many changes,” said Tania Cordova, a trans woman originally from Mexico who was held in immigrant detention on three separate occasions while she made her case for asylum in the United States. “Now the LGBT community, the trans community, we are on the president to make those changes now. We need it now. We cannot afford to lose other lives in detention like we already did.”
The former detainees accused the administration of attempting to paper over bad policy with inclusive language and conspicuous rainbow flags, like a tweet from the official ICE account last week rejoicing in “the triumphs of those who have bravely fought—and continue to fight—for full equality.”
The pressure on Biden to mend broken vows on transgender immigrant detention come as the administration renews its focus on immigration issues more broadly, as well as at a moment when one of the administration’s most prominent commitments to LGBT Americans—the successful passage of the Equality Act—is on the ropes. On Wednesday, the White House announced that Vice President Kamala Harris would be making her first visit to the U.S.-Mexico border later this week, following an announcement the day before that the government will allow some asylum-seekers turned back by Trump’s “Remain In Mexico” policy to have their cases heard in immigration court.
The Department of Homeland Security’s current policy on detention of transgender migrants and asylum seekers has a tortured history, even by the standards of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection. Initially, transgender detainees were held in the general population, with trans women held alongside cisgender men in an environment that health authorities universally believe holds enormous potential for physical and sexual violence. According to a 2013 report by the Government Accountability Office, 20 percent of sexual assault cases in ICE facilities involved transgender victims, with two-thirds of those assaults having been committed by guards.
In 2015, after the Obama administration released a transgender care memo that ordered ICE to “provide a respectful, safe, and secure environment for all detainees, including those individuals who identify as transgender,” the agency developed “pods” where LGBT detainees could petition to be housed alongside other lesbian, gay, bisexual and transgender asylum seekers as they awaited adjudication of their immigration proceedings.
But the conditions in those pods often bordered on inhumane, according to watchdogs and government investigators. Roxsana Hernández Rodriguez, a 33-year-old transgender woman from Honduras, died nine days after being transferred to the dedicated unit for transgender detainees at the Cibola Correctional Center in rural New Mexico in May 2018. An independent autopsy determined that she was likely physically abused during her time at Cibola, although the state medical examiner would later disagree, calling her death the result of “natural causes.”
Rodriguez was one of three transgender women, all under age 35, who died in ICE or CBP custody during this time.
The facility at Cibola, operated by CoreCivic, the second-largest private prison company in the United States, was later shuttered after the Department of Homeland Security’s civil rights office and U.S. Immigration and Customs Enforcement’s health corps determined that staff had ignored hundreds of requests for medical attention by detainees.
That report matched the experience of Victoria Castro, a trans women and former detainee who told The Daily Beast that she had little access to medical treatment while in ICE custody, and faced discrimination from guards and fellow detainees alike.
“ICE doesn’t have a real protocol for the trans community,” Castro said, adding that she was frequently misgendered while in detention. “I didn’t have any medical assistance in detention.”
The solution, she said, is to end incarceration of transgender people in immigrant detention facilities, period.
“It’s killing us,” Castro said.
With Cibola’s closure, trans women are once again being detained alongside cisgender men, with some being given the choice of going into solitary confinement instead—a choice that, according to trans former detainees and their advocates, forces them to either submit to violence and intimidation or to psychological torment.
“The immigration system has created this solitary confinement to ‘keep us safe,’ which it’s not—it’s torture,” said Cordova, who was held alongside both cisgender men and women, as well as in solitary, during her detention. “And on the other hand, we’re also being housed with males and we’re being treated like males.”
Cordova, whose father died while she was being held in detention, has since become an activist for reforming the system to allow transgender women—and, ideally, all asylum seekers—to remain in the country outside of a prison setting as their cases work their way through the immigration legal system.
“Misgendering is violence,” Cordova said. “If the system is that the government will not respect your gender identity, how could you feel safe?”
Asked about whether the policy for transgender detention was, as promised six months ago, being reviewed, White House spokesperson deferred to the Department of Homeland Security, but noted that Biden has taken steps to create a fairer immigration system, including by moving to end family detention and implementing priorities for removal.
But as Biden plans to host his first Pride reception at the White House on Friday, Gutiérrez is holding out hope that someone in the room re-enacts the moment in 2015 when she confronted Obama about his record of detaining trans people in inhumane conditions during his own reception. Gutiérrez called the continued incarceration of transgender and HIV-positive people in immigrant detention facilities part of an “epidemic of violence” against trans women of color—an issue that cuts across all immigration statuses and nationalities.
“As the campaign has grown and become more visible nationally, it is significant that we remind the broader LGBT community, that we remind the immigrant-rights movement, that our issues are also part of the struggle,” she said, “and that we will not be silenced anymore.”