C. Sex-Specific R oles and Program s
2. H ousing
ation, shelters, long-term care facilities, and education. Changing all spaces to neutral ones is worth consideration. Barring that, institutions can take an integration approach: determining the placement that will be the safest and most affirming.
Third-category recognition strategies have been tried in some con- texts, but they have major drawbacks. In the prison context, one exam- ple is L.A. County's special facility for LGBT inmates.55 3 This ap- proach is problematic in many ways, including that prison officials rely on stereotypes to determine which prisoners are LGBT; that it, in effect, excludes bisexual people; that it constructs gay and transgender people as victims; and that it forces inmates to disclose their LGBT status in the violent context of incarceration.554 Sometimes correctional facilities may have space to house nonbinary people in individual sleeping
549 Letter from Adele Rapport, Reg'l Dir., U.S. Dep't of Educ., Office for Civil Rights, to Daniel E. Cates, Superintendent, Twp. High Sch. Dist. 211, at 6 (Nov. 2, 2015), https://www2.ed.gov/
documents/press-releases/township-high-21 i-letter.pdf [https://perma.cc/A4 4V-GET9].
550 Colker, supra note 543, at i6i.
551 See, e.g., Keress Weidner, I'm Non-binary, and "Trans-Accessible" Restrooms Should Include Me, Too, GLSEN, https://www.glsen.org/blog/i%E2%8o%99m-non-binary-and-%E2%8o%gCtrans- accessible%E2 %8o%gD-restrooms-should-include-me-too [https:Hperma.cc/V7 4X-D6EN].
552 See, e.g., G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716-17 (4th Cir. 2ox6), vacated and remanded, 137 S. Ct. 1239 (2017) (mem.).
553 Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99 CALIF. L. REV. 1309, 1309 (2011) ("The Los Angeles County Men's Jail segregates gay and transgender inmates and says that it does so to protect them from sexual assault. But not all gay and transgender inmates qualify for admission to the K6G unit. Transgender inmates must appear transgender to staff that inspect them.").
554 Id. (among other drawbacks).
quarters, but there is a danger that they will end up isolated for too long, which can be psychologically damaging.555
As Professor Dean Spade has explained, gender-neutral prisons, or
"co-corrections," are not unprecedented.556 Beginning in the 197os, a number of minimum security prisons housed men and women together, although men and women had separate living units.557 Some survey research suggests these programs provided more safety and better training opportunities for women, although they came with the disad- vantage of increased surveillance.558 But "[iun the eyes of conservative politicians," these "minimum-security facilities were ... coed 'country clubs. '559 The co-correctional experiment was a casualty of the "tough- on-crime" policies of the i99os, and by 1999 there were no co-correc- tional facilities left.560 The experiment is worth trying again.
From 2012 to 2018, the federal approach to housing gender- nonconforming prisoners was integration: determining the best place- ment for gender-nonconforming prisoners on a case-by-case basis.5 61 Facilities were required to screen all individuals for their risk of perpe- trating or experiencing sexual abuse, and to use that information to de- termine housing.562 Rather than presenting an insurmountable chal- lenge to sex classification in prisons, nonbinary people were assimilated into it. This ought to have allayed any fears that nonbinary gender might open a Pandora's box of disruptive consequences for prison hous- ing.563 Yet the Trump Administration has revised the policy to give
555 RHODES PERRY ET AL., N.Y.C. ADMIN. FOR CHILDREN'S SERVS., SAFE & RESPECTED:
POLICY, BEST PRACTICES, & GUIDANCE FOR SERVING TRANSGENDER, GENDER EXPAN- SIVE, & NON-BINARY CHILDREN AND YOUTH INVOLVED IN THE CHILD WELFARE, DETEN- TION, AND JUVENILE JUSTICE SYSTEMS 26-27 (2017), https://wwwi.nyc.gov/assets/acs/pdf/
lgbtq/SAFEAndRespectedUpdateo6 1417.pdf [https://perma.cc/56F4-F48S].
556 Spade, supra note 28, at 81i.
557 MICHAEL WELCH, CORRECTIONS: A CRITICAL APPROACH 195 (3d ed. 2011) (discussing a co-correctional facility, the Federal Correctional Institution in Fort Worth, Texas, which housed
"low-risk and non-violent" inmates between 1971 and 1988).
558 Sue Mahan et al., Sexually Integrated Prisons: Advantages, Disadvantages and Some Recom- mendations, 3 CRIM. JUST. POL'Y REV. 149, 149 (1989) ("Despite the shortcomings, staff and inmate responses were in general agreement with the statement: 'For the most part the co-corrections in- stitution is an agreeable place."'); cf. James R. Davis, Co-Corrections in the U.S.: Housing Men and
Women Together Has Advantages and Disadvantages, 23 CORRECTIONS COMPENDIUM, Mar.
1998, at 1, 3 (discussing the need for longitudinal studies on co-correctional facilities).
559 WELCH, supra note 557, at 195-96.
560 Id. at 196 ("In view of the tough-on-crime campaigns and President George Bush's initiative to eliminate furlough and other unpopular policies, the U.S. Department of Justice worried that co- corrections did not uphold the 'tough' image of prison life that the White House had been fiercely promoting.").
561 28 C.F.R. § 115.42(a), (c) (2018).
562 Id.
563 It should be worrying, however, that anyone can be assimilated into the system of mass in- carceration. See generally ALEXANDER, supra note 229.
primacy to "biological sex" for purposes of placement of transgender and intersex inmates.5 64
Economically marginalized transgender people encounter difficulties seeking social services and shelters due to sex segregation.565 As a result of fear of violence and harassment, transgender and nonbinary people who need these services may not even approach them.566 The Department of Housing and Urban Development's regulations require that single-sex emergency shelters and other services defer to a person's stated gender identity,5 67 but this policy does not assist in cases in which a person's identity is nonbinary.568 Gender-neutral social services may be the best option for survivors of gender-based violence.569 Arguments related to women's safety are troubling in this context.570 The assump- tions of masculine predation and invulnerability that underlie these de- fenses of sex-segregated services are not supported and are harmful to men.57 1 There is some anecdotal evidence that trainings and education may help to undermine these assumptions.57 2 Providing all residents with doors that lock, panic buttons, and other measures may improve safety and ensure a sense of security.57 3 Nonetheless, for temporary shel- ters, or those that cannot afford private rooms or apartments, there may be a good argument for continuing to sex-segregate shared bedrooms by gender identity57 4 - based on the same considerations that might
564 FED. BUREAU OF PRISONS, U.S. DEP'T OF JUSTICE, CHANGE NOTICE, TRANSGENDER OFFENDER MANUAL 6 (2oI), https://www.bop.gov/policy/progstat/5200-04-cn-i.pdf [https:/
perma.cc/AAA2-V85R]. The policy allows assignment to facilities in accord with an inmate's gen- der identity in certain cases "where there has been significant progress towards transition as demon- strated by medical and mental health history." Id.
565 Spade, supra note 28, at 752-53, 778-80.
566 See, e.g., MICHAEL MUNSON & LOREE COOK-DANIELS, FORGE, GENDER-INTEGRATED SHELTERS: EXPERIENCE AND ADVICE 7 (2oi6), http://forge-forward.org/wp-content/docs/
gender-integrated-shelter-interivews-FINAL.pdf [https:/perma.cc/gMWQ-G2ZG] (reporting on a survey of iooo transgender and nonbinary individuals in 2011, in which nearly two-thirds stated they would not, or might not, access domestic violence or rape crisis centers).
567 24 C.F.R. § 5.io6 (2oi8). The Violence Against Women Act (VAWA), which provides federal grants to programs like emergency shelters, prohibits discrimination on the basis of "gender iden- tity" by grant recipients. 34 U.S.C.A. § 12291(b)(13)(A) (West 2018). It allows "sex-specific pro- gramming" that "is necessary to the essential operation of a program," so long as "comparable ser- vices" are provided to those who are excluded from those programs. Id. § 12291(b)(13)(B).
568 MUNSON & COOK-DANIELS, supra note 566, at 8.
569 Id. (arguing that integrated services are the most inclusive way to respond to VAWA's require- ment of offering "comparable services" to all, and noting that alternatives, such as putting male survivors up in hotels, are not cost effective).
570 Id. at 23-28 (listing objections to integration such as the concern that cisgender men would assault women and children in the shelter).
571 Cf. id. at 12-17 (offering anecdotes from staff at integrated shelters about men, including men who are not LGBTQ, who are survivors of abuse).
572 Id. at 31-33 (discussing experiences with training shelter staff).
573 Id. at 45-46.
574 See OFFICE FOR CIVIL RIGHTS, U.S. DEP'T OF JUSTICE, FREQUENTLY ASKED QUES- TIONS: NONDISCRIMINATION GRANT CONDITION IN THE VIOLENCE AGAINST WOMEN
support the privacy BFOQ.5 15 Nonbinary people might appropriately be placed where they are most safe and comfortable.57 6
As for housing on college campuses and in other educational and professional contexts, institutions are adopting a pluralism strategy.
Campus housing is a problem for transgender students in general.577 Many educational institutions are developing gender-inclusive housing policies.57 8 One school, for example, "allows students to live in a suite with others regardless of their sex or gender identity" if they "complete a gender inclusive housing contract confirming their agreement. '57 9 Some colleges designate certain residence halls or floors as gender neu- tral, or provide living space for students who identify as LGBTQ.580 Others provide case-by-case accommodation.581