Middle Georgia Makes National Transgender News, Raising Questions About Gender Segregation, Sex, and Assault in Prison
By Dave Oedel
Ashley Diamond has been visiting Middle Georgia from north Georgia’s city of Rome, where Diamond grew up. But Diamond has not been visiting our region’s tourist sites, and Diamond’s visit is not voluntary. Diamond was incarcerated for burglary in Middle Georgia’s medium-security Baldwin State Prison in Hardwick, near Milledgeville, before recently being transferred to the maximum-security Georgia State Prison in Reidsville.
Diamond is suing the state of Georgia in relation to the conditions of Diamond’s confinement. As a female-presenting “transgender” individual with male genitalia, Diamond was incarcerated with men, and then allegedly raped seven times in prison by male inmates. Treated as a male, Diamond’s long, flowing hair was shorn upon entry into the prison system, Diamond’s female clothing was taken away, and Diamond was denied a continuation of hormones that Diamond had been taking before incarceration.
Anatomically male by birth, Diamond took hormones associated with females for years prior to incarceration, developing breasts and taking on other female characteristics in harmony with Diamond’s self-image. Diamond’s parents were long reluctant to endorse Diamond’s transgender status, but eventually accepted it as essential to Diamond’s identity. The formal medical justification for use of such hormone therapy is the diagnosis of “gender dysphoria,” or “gender identity disorder.”
There is some question about whether Diamond was undergoing hormone therapy for a medical condition at the time of incarceration. Georgia’s policy has been the so-called “freeze-frame” policy of continuing to provide only those medical interventions that were being administered at the time of incarceration to those experiencing recognized medical conditions. If Diamond was not receiving medically supervised hormone therapy for gender dysphoria at the time of conviction and incarceration, and not recognized as suffering from a bona fide medical ailment, Georgia’s policy would have been not to provide hormone treatments while in prison.
Diamond’s case of gender confusion has provided considerable confusion for Georgia’s Department of Corrections as well. When discussing Diamond’s case with the Monitor, for example, a spokesperson for the Department of Corrections labored in use of pronouns, describing Diamond at different times as both “he” and “she.” When asked by the Monitor about the official policy of the state on how to describe Diamond’s gender, the spokesperson said that it was state policy just to describe Diamond as Diamond, and not to ascribe a gender-specific pronoun to the individual. As the spokesperson demonstrated, though, that is easier said than done.
The spokesperson’s assertion is also inconsistent with the elemental fact that Georgia officially and formally segregates incarcerated individuals on the basis of gender, and that Diamond in particular has officially been designated as male despite a self-image and formal social presentation as female.
Under the present state of the constitutional law of equal protection under the 14th Amendment to the U.S. Constitution, Georgia must demonstrate that official gender segregation is supported by an “exceedingly persuasive” purpose. Although gender segregation is presumed to result in calmer conditions of confinement under ordinary circumstances, Diamond’s case suggests that Georgia’s segregation of Diamond as male and with males may be causing Diamond and the prison system more harm than if Diamond were classified in some other way than male. Just what to do about that, though, is a difficult matter that awaits the decision of the federal district court judge in Macon, Judge Marc Treadwell, who is hearing Diamond’s complaint.
Diamond’s complaint was at a low level of public notice until the U.S. Justice Department intervened on Diamond’s behalf on April 3, 2015. The New York Times immediately highlighted the case and the DOJ’s intervention on April 4, 2015. The Times then followed with another prominent story on the case two days later. Later that same day of the Times’ second story, Judge Treadwell scheduled an emergency hearing on Diamond’s objection to having been transferred to Reidsville as punitive. The Times then ran a third story on the matter.
The emergency hearing in Diamond’s case before Judge Treadwell was held on April 9, 2015, but no disposition was made at that time. At the hearing, the state of Georgia indicated that it was, as of March 2015, now providing “appropriate” hormones of a “replacement” variety, and that Diamond’s transfer to Reidsville was not punitive, but better to protect Diamond from any sexual assault. A follow-up hearing will be held soon, according to Judge Treadwell’s scheduling clerk. The Times reported on that hearing as well.
Four prominent Middle-Georgia-based stories in the New York Times on one topic in the span of less than a week is virtually unprecedented, except for the annual press frenzy over the Master’s golf tournament.
The U.S. Justice Department claims that it is an Eighth Amendment violation for Georgia and other states to deprive anyone with gender dysphoria of appropriate medical treatment while in confinement. The Justice Department added that the “United States also has a strong interest in protecting the rights of lesbian, gay, bisexual, and transgender individuals more broadly.” The Justice Department further mentioned that it has an interest in advancing the medical interests of “intersex” prisoners, presumably meaning those prisoners with anatomically ambiguous characteristics. The brief did not define the term, though, to indicate whether the use of hormone therapy to develop breasts, absent any other genital ambiguity (for instance, ambiguous appearances in a newborn of some form of penis with vaginal characteristics as well), would qualify as “intersex.”
The DOJ said in its brief that Diamond “suffers from” gender dysphoria, as though Diamond is afflicted with a medical disease. The DOJ brief alternately described sexual preferences and gender-related characteristics as “rights” and constitutionally protected status characteristics, not diseases.
Usually, rights are distinguished from diseases in the law, and defined differently. The DOJ brief apparently presumes that the medical condition of gender dysphoria itself produces a constitutional right. If so, that would root the determination of constitutional rights in the diagnoses of medical professionals instead of legal authorities – a problematic approach to constitutional adjudication, as evidenced in the original decision of the U.S. Supreme Court in Roe v. Wade, in which Justice Blackmun’s opinion for the court rested substantially on doc-talk.
Aside from questions of how to deal with the issues of transgender prisoners in particular, and various related questions of gender segregation in cases of gender and sexual-preference ambiguities, Diamond’s case raises questions about the ability of Baldwin State Prison, where Diamond was allegedly raped, to protect its inmates from harm.
Ironically, that prison was the subject of a major controversy in the early 1990s when women were incarcerated there, and allegations of rampant sexual contact between inmates and jailers made the national press. That prison’s female inmates were moved out in 1993, and the prison was thereafter switched to duty for incarceration of males, because of a sexual culture at the prison that corrections department officials determined could not be fixed.
The Diamond case suggests that sexual assaults and impropriety have resurfaced as features of life at Baldwin State Prison despite the switch in gender of Baldwin’s inmates. If Diamond’s case, though relatively unique in its particulars, is indicative of broader patterns, prison authorities at Baldwin apparently remain incapable of providing an environment for prison inmates safe from sexual assault or impropriety more than twenty years after the prison at Hardwick was last exposed on the national stage for sexual assaults and improprieties involving inmates.
A spokesperson for Baldwin State Prison’s warden, Cedric Taylor, said that Taylor refuses to speak with Macon Monitor about any matters involving the prison. Before hanging up summarily, that spokesperson also declined to provide any specific authority to whom the Monitor could pose questions about conditions at Baldwin State Prison. Baldwin’s spokesperson advised the Monitor to take it up with “central authority,” but the spokesperson declined to reveal who or where that authority might be, despite being pressed several times for any officer, office or location that might claim to be responsible.
The Monitor did later speak with a general media spokesperson for Georgia’s Department of Corrections. That spokesperson declined to discuss anything about conditions experienced by Diamond or others at Baldwin State Prison, citing ongoing litigation.
Because Georgia prison-conditions litigation is ongoing on a largely permanent basis due to the high volume of prisoner complaints from all Georgia prisons that are directed to the courts, that rationale by the Department of Corrections would mean that Georgia will never officially discuss its prison conditions with the press.
Individuals with inside information about conditions at Baldwin State Prison or other Middle Georgia prisons including Reidsville (which Diamond alleges is sexually dangerous too) are invited to share such information confidentially by emailing firstname.lastname@example.org or calling 478-973-1947.
Watch for further developments on Diamond’s case and related matters in the Macon Monitor.