Minnesota recognizes she's a woman. She's locked in a men's prison anyway

Updated October 13, 2022 at 6:07 AM ET

This story is part of a series looking at transgender inmates in the U.S. and the challenges they face in confinement and upon release. The series focuses on topics such as being incarcerated in prisons that do not reflect their gender identity, the medical hurdles faced behind bars and rehousing after being released. The series includes dozens of interviews with inmates, experts and public officials.

Note: This story mentions a suicide attempt.

It was December 2018, and Christina Lusk had just received a life-changing gift, or so she thought.

She got a phone call from her doctor informing her that specialists in Minnesota could perform surgery to affirm her gender identity in just two months. This would be the final step to making her feel "whole," Lusk, 57, said when NPR visited her in prison at Minnesota Correctional Facility-Moose Lake, about 115 miles from Minneapolis.

Lusk rushed to make appointments and expected to have her surgery in February.

But on Dec. 17, 2018, she was arrested for dealing meth.

She pleaded guilty. She has since spent about three years incarcerated in a men's prison. She faces relentless harassment and crippling loneliness, she said, and now she wants this mistreatment to end.

Lusk's situation is one shared by many transgender people behind bars in the U.S. prison system. Because, in practice, they are often forced to stay in prisons according to their assigned sex at birth or genitalia at the time they were arrested, transgender inmates face greater risk of assault, discrimination, abuse and humiliation, according to attorneys, advocates and incarcerated individuals. Their housing violates federal civil rights and the constitutional protection against cruel and unusual punishment, they say.

"Generally speaking, prisons and jails are treacherous living spaces for transgender people. For transgender women who have transitioned to their affirmed gender and live as women in the community, being housed in a male facility is a veritable minefield," Randi Ettner, a psychologist who specializes in treating transgender individuals, told NPR.

Lusk sues Minnesota over her housing

This June, Lusk and her legal team from Gender Justice sued the Minnesota Department of Corrections (DOC).

"When somebody told me that they would help me, my world changed. And I was so happy that I had a voice and that somebody would fight for me, 'cause nobody's ever fought for me," Lusk said.

The lawsuit states that the DOC is discriminating against Lusk and that she should not have been housed with men. Lusk wants the judge to rule that the DOC denying her gender-affirming surgery is unconstitutional.

The state has asked the judge to dismiss the case, saying that Lusk is receiving medical care. The judge has said she will consider the motion.

After her guilty plea in 2019, Lusk was sent to the Moose Lake men's facility. Lusk believes that she, a trans woman who has a reissued birth certificate that states she is female and who has undergone gender-affirming procedures, should be placed in the women's prison in Shakopee, Minnesota. (It should be noted that the authenticity around a trans person's gender identity is not inherently tied to surgeries, other medical treatments or changes to legal documents. Some people don't take these steps for a variety of reasons.)

Lusk's attorneys have stated that the Minnesota DOC considers her a man based solely on her genitalia, a contention the Minnesota DOC denies.

"This is not accurate. As the policy states, individual requests are considered on a case-by-case basis, taking into account the person's current gender expression and a variety of medical, safety, security and other factors," Minnesota DOC spokesman Nicholas Kimball said via email.

"As the policy on housing makes clear, no single issue is determinative of a housing placement, but the totality of circumstances is assessed to ensure the person's health and safety and whether the placement would present management or security issues," he added. "This individualized determination was done in Ms. Lusk's case."

The DOC's committee for trans inmates denied her multiple requests to be sent to Shakopee, a rejection that has cost Lusk her health and safety, according to her attorneys and Lusk herself.

Kimball said in an email: "The agency's Transgender Committee, comprised of its Chief Medical Officer and other high-ranking medical and other officials, considered Ms. Lusk's request in March 2019 and recommended that she be housed in a single cell at MCF — Moose Lake and be permitted to shower alone. The committee reconsidered her request in May 2019 and again made the same recommendation."

As of Sept. 26, Lusk was one of 45 adult trans inmates in the prison system run by the Minnesota DOC. As of that date, there were 7,875 total incarcerated adults.

"I told myself, 'I'm gonna get busted.'"

Lusk knew she was different from an early age.

"I always hung around with my sister and all her girlfriends. I didn't really have any male friends, because for some reason, it just wasn't appealing to me. I didn't get along very well with them," she said.

She graduated from high school and built houses for work. She later married and had two children. But through it all, Lusk couldn't escape an all-encompassing feeling of guilt and shame.

To feel more confident and comfortable around other people, she turned to alcohol, with disastrous effect.

"I was in and out of jails and stuff. And it was all over drinking and, you know, trying to make myself feel better about myself," she said.

Lusk is now 57. It was only a few years ago that she really started living freely as herself. A psychiatrist told her she had gender dysphoria. That's a medical term used to describe the deep discomfort caused by a mismatch between a person's assigned sex at birth and their gender identity.

After her divorce in 2008, she began transitioning, a process that included changing her name. With her doctor's help, Lusk started taking hormones, but she still battled her demons.

Lusk continued drinking and, later, using drugs. She got treatment to become sober — and later relapsed. After a stint in prison over charges for driving while intoxicated, Lusk met a friend who introduced her to meth.

For two months after meeting this man (whom she declined to identify), she used and sold meth, a mistake she said she now owns. "I told myself, 'I'm gonna get busted.' I just knew it."

Stepping into a minefield

For Lusk, day-to-day life at Moose Lake is a constant struggle.

Corrections staff members ogle her body, watch her change and shower, and make derogatory comments, she said. They refuse to use her legal name, and they deferred any gender-affirming surgery until after her release.

She was placed in a dorm with multiple men who subjected her to harassment and repeated sexual assault, her lawsuit details.

The ordeal made her suicidal.

"I took a sheet and I wrapped it around my neck, and I twisted and twisted and I thought about my family and everything and asked, 'Is this how I wanted to go?' And I stopped," she said.

When Lusk detailed some of the instances of abuse she has dealt with, she started to cry. She took a long pause and quickly wiped the tears from her face.

"That's why I want to move to Shakopee. I don't think the women are going to be as aggressive and horrible to me," she said.

In response to NPR's request for comment on these specific allegations, Kimball, the Minnesota DOC spokesman, said the agency takes Lusk's claims seriously.

"DOC policy prohibits and we do not tolerate discrimination, harassment and sexual assault by staff or incarcerated persons. The DOC has no information to substantiate Ms. Lusk's allegations that she has been subjected to unlawful discrimination or harassment, and there have been no documented reports of sexual abuse, including from Ms. Lusk herself," the spokesman said. "Had Ms. Lusk reported any sexual abuse, the DOC would have thoroughly investigated the matter and taken appropriate corrective action."

Lusk never reported the sexual abuse "because she did not believe the DOC had any interest in protecting her or that they were capable of keeping her safe from reprisal," said Jess Braverman, Lusk's attorney and the legal director of Gender Justice.

"She also noted that she knew another woman who was incarcerated with her who was sexually assaulted and did report it and she just got moved to another men's prison," Braverman said.

Trans inmates are at higher risk of sexual abuse

While trans inmates face unique hardships in prison, it's hard for anyone. Incarcerated individuals are more likely than the general population to deal with chronic health problems such as high blood pressure, diabetes and HIV. Access to treatment can also be unreliable.

Sexual abuse has long been an issue within the U.S. prison system — so much so that in 2003, Congress passed the Prison Rape Elimination Act (PREA). It requires federal, state and local correctional facilities to enforce a zero-tolerance policy regarding sexual assault against inmates.

This law also charged the National Prison Rape Elimination Commission with creating federal standards to eliminate prison rape. Those standards include a rule that each facility must decide housing assignments for trans inmates on a case-by-case basis. Prisons are instructed to weigh the inmate's safety and health and whether a placement would "present management or security problems."

It's a recognition that trans individuals are frequently victims of sexual abuse in prison. A 2015 study found that 1 in 5 trans inmates was sexually assaulted by staff or other inmates in the prior year, a rate vastly exceeding that of the general U.S. prison population.

"Despite PREA regulations, many women are strip-searched by men, not afforded privacy in showering and toileting, and even housed amongst known sex offenders. Abuse is not only prisoner on prisoner, but correctional officers are often the perpetrators of abuse," Ettner said.

Some state policies are at odds with federal standards

It's clear that some states explicitly don't follow federal guidelines that call for housing decisions to be made on a case-by-case basis. Others have policies that are in line with federal standards, but in practice, they actually tend toward housing inmates based on assigned sex at birth.

Thirty-four state departments of corrections, as well as Washington, D.C., responded to NPR's request for information on their policies on housing transgender inmates.

Information for the states that didn't respond came from Transgender Law Center's database of agency-specific prison rules. The organization is an advocacy group that has been involved in lawsuits involving incarcerated trans individuals.

The policies of the vast majority of states, including Minnesota, align with federal guidelines. They say decisions are made on a case-by-case basis, with the inmate's gender identity being a piece of that consideration. The inmate's safety is considered a priority.

California and Maine allow incarcerated transgender people to request to be housed and searched in a manner consistent with their gender identity, according to state law. New Jersey assigns housing with the presumption that the inmate will be housed in line with their gender identity, according to the 2021 policy detailed in Transgender Law Center's database.

North Dakota, Alaska and Idaho explicitly say in their housing policies that they place inmates in facilities based on assigned sex at birth or "primary physical sexual characteristics."

Louisiana is an example of how complicated housing policy can be. In its policy, the Department of Public Safety and Corrections says initial housing placements are made based on "biological sex." Later on in its policy, the department says trans inmate housing assignments are considered on a "case-by-case basis."

Arizona, Nebraska and Mississippi don't have specific mentions of policies on housing trans residents in state prisons. Rhode Island and Utah declined to share their policies with NPR.

Even though most state DOCs say they take an inmate's gender identity into consideration when determining housing, advocates and attorneys say trans inmates are rarely housed in what they say is the safest manner — in a facility that aligns with that identity.

"With few exceptions, prisoners are housed according to assigned sex at birth or surgical status," Ettner told NPR.

For example, according to a June Star Tribune article on Lusk's case, "the DOC has yet to grant a request from a transgender woman to be transferred to a women's prison."

Kimball, the Minnesota DOC spokesman, told NPR in an email that the department is in the midst of revising its policy.

Lawsuits are slowly bringing about change

Like Lusk, other incarcerated trans individuals are turning to the legal system to seek change, sometimes with success.

Lawsuits filed by both formerly incarcerated and still-imprisoned trans individuals (with help from the American Civil Liberties Union, Transgender Law Center and the Southern Poverty Law Center, among others) have been the driving force in changing state and county-level policies.

"All progress has been the result of litigation," Ettner said. "The Eighth Amendment of the Constitution prohibits cruel and unusual punishment. The courts have interpreted that in such a way that if it can be demonstrated that there has been 'deliberate indifference' to a medical requirement, then an individual's constitutional rights have been violated."

Cases out of Steuben County, N.Y., Washington, D.C., and New Jersey were successful and forced major policy changes.

In California, Senate Bill 132 became law in 2021, giving transgender, nonbinary and intersex inmates in state prisons the right to be housed in either men's or women's facilities.

The state has started slowly moving inmates who have requested a change and gone through steps for approval. Opponents of the policy say they're concerned about the potential for assault by inmates transferred from men's facilities.

Lusk, as well as many other trans individuals NPR spoke to for this project, said there will no doubt be people who are not transgender, nonbinary or intersex who try to take advantage of housing policies like this.

But they say it's up to the prisons to establish guidelines that help secure approval for nonviolent offenders, while weeding out any cisgender inmates acting in bad faith. It can be done, they said.

"You're gonna have to weed out those that have cruel intentions. I understand that," Lusk said. "Now, in my case, I've gone through every hoop that there is to jump through to become the woman that I am. And it's all documented. I think everybody should have that same scrutiny before they are transferred to a women's prison."

She added, "I don't want women to feel fearful of me. I can put myself in their shoes too."

Worth the fight?

Lawsuits such as Lusk's can take years to litigate and can even put the plaintiff in danger if they are still imprisoned.

"Ms. Lusk has brought a lawsuit against the DOC laying out all the ways they have mistreated her while she is still physically there in their custody. She is putting a huge target on her back, both inside the prison and also once she's out," Braverman, of Gender Justice, told NPR.

In the meantime, Lusk mostly keeps to herself and works in the prison's industry and assembly unit. Work is where she says she is happiest. She's up for release in 2024.

Lusk knows a lot is at risk with this lawsuit, but she hopes it can bring some hope to someone else in a similar situation.

"If I can help one person, then I'm good," she said. "Who knows what can happen? I just want people to know that the sun's still shining, even though it's dark right now, you know?"

Copyright 2022 NPR. To see more, visit https://www.npr.org.

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