Ask Lambda Legal | Nov. 20, 2014

Are there rules protect LGBTQ immigrants in detention facilities?

Jael Humphreys

Jael Humphreys, Staff Attorney for Lambda Legal. Photo courtesy of Lambda Legal.

By Jael Humphreys, Staff Attorney for Lambda Legal, Nov. 20, 2014.

Dear Ask Lambda Legal,
I have a cousin who was recently picked up by Immigration and Customs Enforcement, and she’s transgender. She is planning to apply for asylum in the United States because she is afraid she will be persecuted if she is deported. I heard that there are new rules to protect transgender people in immigration detention facilities. What are they?

Lambda Legal: Recently, the Department of Homeland Security published the Prison Rape Elimination Act (PREA) regulations to prevent, detect and respond to sexual abuse and assault in Homeland Security confinement facilities. Lambda Legal submitted comments on the proposed regulations, saying that LGBT people in custody are particularly vulnerable and are at heightened risk for sexual assault and physical abuse.

Many LGBT immigrants flee persecution as a result of their sexual orientation or gender identity, only to face sexual assault and harassment in immigration detention facilities in the United States. Transgender people, in particular, are at high risk for abuse. The Congressional Research Service reported that 20 percent of substantiated allegations of sexual abuse in these facilities involve transgender people.

The protections adopted by the Department of Justice in 2012 did not extend to people in immigration detention facilities, despite the fact that they face the same issues as people in prisons, jails and lockups. In May 2012, the Obama administration addressed the omission and announced that the regulations would apply to Homeland Security immigration detention centers as well as Department of Justice facilities, a crucial decision.

While an important step forward, the new Homeland Security standards are not perfect. They don’t prohibit retaliatory deportation of those who report abuse, and they apply to contract facilities only when substantive contract modifications are negotiated, which may mean a delay of years. Moreover, the regulations entirely fail to address Homeland Security’s abhorrent bed mandate, which Immigration and Customs Enforcement interprets as a requirement that it maintain and fill 34,000 beds daily.

While overall the regulations have fallen short of what LGBT advocates have asked, there are some good developments. The standards overall strive to reduce the prevalence of rape and sexual assault in immigration detention facilities. With respect to transgender detainees, they prohibit searches for the sole purpose of determining genital characteristics and prohibit housing assignments based solely on identity documents or physical anatomy, requiring facilities to consider transgender detainees’ self-identification of gender and self-assessment of safety.

Now it remains to be seen how the implementation process will unfold. For LGBT immigrants, it is crucial that the new adopted Homeland Security regulations be implemented fully and quickly.

It is often said that a society can be measured by how it treats its most vulnerable members. LGBT detainees made invisible by the walls of an immigration detention facility are certainly among the most vulnerable.


Lambda Legal is the nation’s oldest and largest legal organization working for the civil rights of lesbians, gay men and people with HIV/AIDS. You can contact Lambda Legal’s Help Desk at 866-545-8336 with your legal questions, or visit lambdalegal.org for more information.