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Dept of Homeland Security - Policy on Transgender Detainees, 2015

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Office of Enfo;·cement and Removal Operations
U.S. Department of Homeland Security

500 12"' St. SW
Washington, DC 20536

U.S. Immigration
and Customs
Enforcement
June 19, 2015
MEMORANDUM FOR:

Assistant Directors
Deputy Assistant Directors
Field Office Directors
Deputy Field Office Directors
Assistant Field Office Directo
ICE Health Service Corp

FROM:

Thomas Homan

SUBJECT:

Further G · ance Regarding the Care of Transgender Detainees

Purpose
This memorandum provides further guidance regarding the placement and care of transgender
adult detainees in the custody of U.S. Immigration and Customs Enforcement (ICE),
Enforcement and Removal Operations (ERO).
Background
This guidance complements existing ICE detention standards, ICE Policy 11062.2: Sexual Abuse
and Assault Prevention and Intervention (SAAPI) (May 22, 2014), and the requirements of the
U.S. Department of Homeland Security (OHS) regulation titled, "Standards to Prevent, Detect,
and Respond to Sexual Abuse and Assault in Confinement Facilities," 79 Fed. Reg. 13,100 (Mar.
7, 2014), hereafter DHS PREA Standards. The security and safety of ERO employees,
detainees, detention staff, and members of the public are paramount in the exercise of this
guidance.
As in all cases, if an individual is not subject to the requirements of mandatory detention, Field
Office Directors (FODs) should continue to consider whether the use of detention resources is
warranted for a given individual and shall consider, on a case by case basis, all relevant factors in
this determination, including whether an individual identifies as transgender. While the FODs
may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally
preferable to exercise such discretion, if warranted, as early in the case or proceeding as possible.

Further Guidance Regarding the Care of Transgender Detainees
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ICE ERO will provide a respectful, safe, and secure environment for all detainees, including
those individuals who identify as transgender. Discrimination or harassment of any kind based
on a detainee's actual or perceived sexual orientation or gender identity is strictly prohibited.
Moreover, ICE ERO reaffirms its commitment to provide effective safeguards against sexual
abuse and assault for all individuals detained in ERO custody.
1. Data Systems and Form 1-213
a. ERO Law Enforcement Systems and Analysis (LESA), in consultation and collaboration
with other relevant ICE and ERO components, is directed to update, to the extent
practicable, all appropriate data systems (including, but not limited to, EAGLE, EARM,
and other systems that receive data from ERO-related data systems for statistical,
medical, or other purposes) to: (1) capture a detainee's "Biological Sex" or "Sex" (See
Attachment 1: Definitions) as Male, Female, Intersex, or Unknown (Note: data systems
should not use the category or header of"Gender" to capture and record a detainee's
"Sex"); and (2) add a data field, which may be in the form of a check-box, to record if the
detainee identifies as "Transgender." ERO LESA should also ensure that the
identification of"Transgender" appears conspicuously on the Form I-213 "Record of
Deportable/lnadmissible Alien" when printed.
2. Initial Processing
a. During the initial processing of an individual taken into ERO custody, the FOD, or
his/her designee, shall ensure ERO personnel record a detainee's "Biological Sex" or
"Sex" as Male, Female, Intersex, or Unknown on the Form I-213 and within applicable
data systems.
b. In those circumstances during initial processing when a detainee: (1) self-identifies as
transgender or otherwise identifies with a gender different from that which corresponds
with his or her biological sex (e.g., a biological male who identifies as a woman); or (2)
responds affirmatively during Risk Classification Assessment (RCA) module screening
that he or she may be at an elevated risk in a detention setting because of his or her actual
or perceived gender identity and/or gender expression, the FOD shall ensure ERO
personnel ask if the detainee would like to formally disclose his or her gender identity.
c. The following script is appropriate, but not required, for use by ERO personnel in these
circumstances and should be communicated in a language and manner the detainee can
understand:

Do you wish to disclose your gender identity (please note you are not required to disclose
information about your gender identity which you are not comfortable sharing)?
If the detainee answers affirmatively, ERO personnel should then ask:

Further Guidance Regarding the Care of Transgender Detainees
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Do you identify as a man, a woman, or as transgender?
If the detainee indicates he or she self-identifies as transgender, or has a gender identity
different from his or her biological sex, ERO personnel shall record the initial
determination in the appropriate data systems.
d. If the individual identifies that he or she is transgender, the same should also be noted on
the Form I-213 and the Form I-213 should indicate any other information he or she
disclosed related to his or her gender identity.
e. When processing an individual who identifies as transgender, ERO personnel should be
aware that he or she may:
1.

f.

Exhibit a gender expression (i.e., external and objective manifestations of gender,
such as, but not limited to, one's preferred name, pronouns, clothing, makeup,
haircut, behavior, voice, or body characteristics) that appear to indicate a gender
different from the sex listed on the detainee's identity documentation.

ii.

Carry official documentation, including medical documentation, recognized by ICE
officials or a government entity (local, state, or federal) that indicates a gender
identity different from the detainee's biological sex or lists the detainee's gender
identity as transgender.

111.

Possess prescription medication (e.g., hormones), as verified by a qualified medical
professional, that indicates a gender identity different from the detainee's biological
sex.

The detainee shall not be disciplined for refusing to answer any gender identity-related
questions during processing, for not disclosing complete information in response to
questions asked about gender identity, or for falsely reporting that he or she is not
transgender.

g. If at any time during initial processing ERO personnel determine additional privacy is
needed to further address issues, questions, or answers referenced above with the
detainee, the FOD, to the extent practicable, shall ensure ERO personnel make
appropriate accommodations (such as using an office or unoccupied holding cell) to
· converse with the detainee in private.
h. Pursuant to the DHS PREA Standards, the FOD shall ensure sensitive information, such
as a detainee's gender identity, is not used to the detainee's detriment by ICE personnel
or detention facility staff or other detainees, is not shared with other detainees, and is not
shared with others who do not have a need to know the information.

Further Guidance Regarding the Care ofTransgender Detainees
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i.

Pursuant to the DHS PREA Standards, searches shall be conducted in a professional and
respectful manner, and in the least restrictive manner possible, consistent with security
needs. At no time shall any search be conducted solely for the purpose of determining a
detainee's biological sex.

3. Initial Placements
a. When a detainee identifies as transgender, ERO shall make individualized placement
determinations to ensure the detainee's safety.
b. In determining the appropriateness of a facility to house the detainee, ERO should
consider:
i. Facilities within the Field Office' s Area of Responsibility (AOR) that have
incorporated the "ICE Detention Facility Contract Modification for Transgender
Care," (See Attachment 2) and, therefore, maintain a functioning Transgender
Classification and Care Committee (TCCC);
ii.

Facilities within the AOR that operate a Protective Custody Unit (PCU) for
transgender detainees; or

m. Facilities within the AOR that demonstrate best practices in the care of Lesbian, Gay,
Bi-sexual, Transgender, or Intersex (LGBTI) detainees, to include, but not limited to:
(1) the availability of medical personnel who have experience providing care and
treatment to transgender detainees (to include the delivery of hormone therapy) and
(2) detention facility staff who have received LGBTI Sensitivity and Awareness
Training.
c. If placement into a facility described in Sections 3.b.i-iii above is not practicable, the
FOD shall ensure the facility chosen for placement within his or her AOR is able to
appropriately care for the individual. FODs are reminded that placement into segregation
should occur only when necessary and in compliance with applicable detention standards.
In particular, placement into administrative segregation due to a detainee' s identification
as transgender should be used only as a last resort and when no other temporary housing
option exists. If the facility is unable to meet these requirements, or if the detainee
expresses concerns regarding his or her placement or conditions of confinement, the
FOD, in consultation with his or her Office of Chief Counsel, shall examine options for
transfer of the detainee to a different facility. Attachment 3 lists DHS PREA and
Performance Based National Detention Standards 2008 and 201 1 (PBNDS) requirements
related to transgender detainees.
4. Transfers: Transfers shall comply with ICE Policy 11022.1: Detainee Transfers (Jan. 4,
20 12). In addition, FODs should consider any transfer request made by the detainee related
to his or her transgender identification. Should FODs need guidance on initial placement or
subsequent transfer decisions, they are encouraged to reach out to the National ERO LGBTI
Coordinator and ERO Field Operations.

Further Guidance Regarding the Care of Transgender Detainees
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5. Care ofTransgender Detainees in ICE Facilities: ERO Custody Management, in consultation
and collaboration with other relevant ICE Directorates or Programs and components
(including the Office of Acquisition Management and the Office of Detention Policy and
Planning), will work with willing ICE service vendors to incorporate the model procedures
outlined in Attachment 2, "ICE Detention Facility Contract Modification for Transgender
Care" into facility contracts.
6. ERO LGBTI Field Liaisons
a. Each ERO FOD shall designate a specially trained employee at the supervisory level to
serve as an LGBTI Field Liaison 1• The LGBTI Field Liaison will regularly communicate
with the National ERO LGBTI Coordinator (See section 7 below) and report to ERO
Headquarters on the progress of implementing and maintaining the provisions of this
memorandum. The LGBTI Field Liaison will also coordinate with the Prevention of
Sexual Assault (PSA) Coordinator in his or her Field Office where their responsibilities
and work overlap.
b. In detention facilities that have adopted the "ICE Detention Facility Contract
Modification for Transgender Care," the ERO LGBTI Field Liaison will be available to
actively participate on the facility's TCCC.
c. Each ERO LGBTI Field Liaison will also participate in all relevant training offered by
ERO Headquarters on the subject of this memorandum.
7. National ERO LGBTI Coordinator
a. ERO will designate a National LGBTI Coordinator. The National ERO LGBTI
Coordinator will: (1) serve as the primary point of contact and subject matter expert for
ERO regarding the care and treatment of LGBTI detainees in ERO custody; (2) evaluate
information collected from EAGLE, EARM, RCA and other relevant ICE information
technology systems regarding the care and custody ofLGBTI detainees; (3) assist the
field and ERO Headquarters Directorates in utilizing information about LGBTI detainees
to help ensure compliance with the provisions of this memorandum; (4) continue to refine
and deliver training on the provisions of this memorandum; and (5) coordinate with
ICE's PSA Coordinator where their responsibilities and work overlap.
b. The National ERO LGBTI Coordinator shall also organize and convene a standing
working group to assess the implementation and maintenance of this memorandum,
advise agency leadership on issues affecting LGBTI detainees in ERO custody, further
explore best practices and strategies, and make additional recommendations when
necessary. The standing working group should meet no less than quarterly and at a
1

The ERO LGBTI Field Liaison selected by the FOD may also be the local field ERO Prevention of Sexual Assault
(PSA) Coordinator or other HQs collateral duty assignment (e.g. Segregation Review Coordinator).

Further Guidance Regarding the Care of Transgender Detainees
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minimum include members from ERO Custody Management, ERO Field Operations,
ICE Health Service Corps, the ICE Office and Detention Policy and Planning, DHS
Office for Civil Rights and Civil Liberties, and one or more ERO LGBTI Field Liaisons.
The working group may also consult with outside stakeholders, including representatives
of non-governmental organization and academic institutions, as appropriate.
c. The National ERO LGBTI Coordinator shall assist in addressing public inquiries related
to the care and custody of transgender detainees. Inquiries may be received from
detained or non-detained individuals, their family members, attorneys or representatives,
and advocacy groups, among others.
d. The National ERO LGBTI Coordinator shall also establish and maintain regular reporting
mechanisms that pertain to the demographics of the transgender detainee population. The
reports shall be reviewed and approved prior to any internal and/or external
dissemination.
8. Training: As described above, the National ERO LGBTI Coordinator, in consultation with
relevant ICE and ERO Headquarters Directorates, shall continue to refine and deliver
training materials, to include the use ofICE's Virtual University, to assist FODs, ERO
LGBTI Liaisons, and other relevant Field Office personnel in the implementation of this
memorandum.
No Private Right of Action
This guidance is not intended to, does not, and may not be relied upon to create any right or
benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or
criminal matter.
Attachments
1. ICE Detention Facility Contract Modification for Transgender Care
2. PREA and PBNDS Requirements Related to Transgender Detainees
3. Definitions

Further Guidance Regarding the Care of Transgender Detainees
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ATTACHMENT 1: ICE Detention Facility Contract Modification for
Transgender Care

[
(FACILITY)] will comply with the following requirements related to the care
and custody oftransgender detainees:
Transgender Care
1) Intake: Upon arrival at the detention facility, intake personnel shall review the detainee's
record and documentation. If the record indicates the detainee' s gender identity differs from
his/her biological sex, intake personnel shall only ask questions related to gender identity
when such information is necessary to ensure the safety and security of other detainees and
staff. In addition, the facility shall ensure that sensitive information, such as the detainee's
gender identity, is not used to the detainee's detriment by facility personnel or other
detainees.

a) Intake personnel shall accurately record the detainee as transgender. The detainee shall be
treated as a protective custody detainee for the duration of the intake process.
b) The detainee shall be temporarily housed (i.e., in a location away from the general
population, to include in a medical unit or protective custody) for no more than 72 hours
(excluding weekends, holidays, and exigent circumstances) until classification, housing,
and other needs can be assessed by a Transgender Classification and Care Committee as
delineated below. In particular, placement into administrative segregation due to a
detainee's identification as transgender should be used only as a last resort and when no
other viable housing options exist.

2) Transgender Classification and Care Committee
a) The facility shall create and operate a Transgender Classification and Care Committee
(TCCC).
b) In facilities staffed by the ICE Health Service Corps (IHSC):
i) The TCCC shall be comprised of a dedicated facility medical representative, facility
mental health representative, a facility classification supervisor, the Enforcement and
Removal Operations (ERO) Lesbian, Gay, Bisexual, Transgender, and Intersex
(LGBTI) Field Liaison, and a supervisory representative designated by the Field
Office Director (FOD) (the supervisory representative from the ERO FOD can be the
ERO LGBTI Field Liaison).

ii) The TCCC may utilize remote forms of communication (i.e., phone or videoteleconference) to facilitate meetings and other activities.
c) For facilities not staffed by IHSC:

Further Guidance Regarding the Care of Transgender Detainees
Page 8of18

i)

The TCCC shall include the IHSC Field Medical Coordinator (FMC), in addition
to a dedicated facility medical representative, a facility mental health representative,
a facility classification supervisor, the ERO LGBTI Field Liaison, and a supervisory
representative designated by the FOD (at the FOD's discretion, the supervisory
representative can include the ERO LGBTI Field Liaison).

d) The TCCC shall be chaired jointly by a representative from the facility and an ERO
representative, preferably the ERO LGBTI Field Liaison.
e) The facility staff members, including medical and mental health personnel, will have
appropriate training and experience in working with transgender persons.

3) Transgender Classification and Care Committee Determinations:
a) Meeting with the Detainee: In preparation for the TCCC meeting, the TCCC designated
facility medical representative(s) shall meet with the detainee as soon as practicable after
the detainee's arrival to the facility to gather information necessary to solicit the
detainee' s preferences and requests with regard to housing, searches,2 and other matters.
The ERO LGBTI Field Liaison may also participate in any meeting with the detainee.
The communication between the TCCC representative(s) and the detainee shall be in a
language and manner the detainee can understand and should be conducted using the
TCCC Determination Question Guide provided at the conclusion of this document.
b) Meeting of the TCCC: The TCCC shall meet and provide a classification assessment no
later than 72 hours (excluding weekends, holidays, and emergencies) after the detainee's
arrival to the facility to assess medical, psychological, housing, and other needs.
c) Classification Assessment: As part of the transgender classification assessment, the
TCCC shall, at a minimum, consider:
i) The detainee's self-identification;

ii) An assessment of the effect of possible placements on the detainee's health and
safety, conducted by a medical or mental health professional (which may coincide
with the full medical ~sessment done in accordance with the applicable ICE
detention standards);
iii) The detainee's record and available documentation, including forms and notes from
initial processing, medical/mental health records, booking records, identification
documents, etc.; and
2

Whenever practicable, the detainee's request should be honored but not to the detriment of the safety and security
of the facility or facility staff.

Further Guidance Regarding the Care of Transgender Detainees
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iv) Observations provided by medical or mental health representative(s), to include those
based upon the latest Diagnostic and Statistical Manual of Mental Disorders (DSM)
criteria for the diagnosis of Gender Dysphoria.
d) Detention Plan: Once the TCCC determines the detainee's transgender classification, the
TCCC shall construct an individualized Detention Plan for each transgender detainee. As
part of its Detention Plan assessment, the TCCC shall, at a minimum, consider:
i)

All records and prior assessments, including medical/mental health records, and an
assessment of the effects of any housing placement on the detainee's health and
safety that has been conducted by a medical or mental health professional;

ii)

The detainee's preferences and requests;

iii)

The detainee's self-assessment of his or her safety needs (i.e., does the detainee feel
threatened or at risk of harm?);

iv)

The detainee's documented criminal history and past and/or current behavior;

v)

The TCCC's determination of the detainee's safety/security needs, including
documented and self-reported history of sexu.al assault, victimization, or predatory
behavior;

vi)

The detainee's physical, medical, or mental health, or special needs;

vii) Privacy issues, including showers, single-cell sleeping arrangements, etc.;
viii) Available beds and/or housing;
ix)

Whether the housing assignment would pose a safety risk to other detainees (See
Section 3.e.ii "Safety, Security, and Privacy"); and

x)

Effects of housing assignment on resources, including facility staff.

e) Requirements within the Detention Plan: Consistent with existing ICE policy and
detention standards, the individualized Detention Plan shall, at a minimum, contain the
following requirements:
i)

Housing Assignment: Options to include:
a. General housing consistent with the detainee's biological sex;
b. General housing consistent with the detainee's gender identity;
c. A protective custody unit; or
d. Medical or administrative segregation.

Further Guidance Regarding the Care of Transgender Detainees
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ii)

Safety. Security and Privacy: The TCCC shall address the safety, security, and
privacy needs for both the transgender detainee and the general detention
population when assessing the housing assignment. Discussion(s) may include
guidance on appropriate staffing levels in the housing option assigned (e.g., single
or shared cell, or dormitory housing).

iii)

Hygiene: Consistent with ICE detention standards, facility staff shall ensure that
transgender detainees are able to maintain acceptable personal hygiene practices
consistent with their gender identity and that ensure their safety. Transgender
detainees shall be provided the opportunity to shower in a setting that ensures safety
and privacy.

iv)

Clothing and Commissary: Transgender detainees will be provided undergarments
consistent with their gender identity as assessed by the TCCC. Transgender
detainees shall be issued standard detention attire consistent with their assigned
housing unit. Transgender detainees shall also be allowed to possess or purchase
through the commissary those hygiene and personal items that are consistent with
their Detention Plan.

v)

Searches: As prescribed by standard '2.10 ofICE's 2011 Performance-Based
National Detention Standards (PENDS), the transgender detainee's preference as to
the gender of the officer that will perform any necessary pat-down and strip
searches will be considered by the TCCC when drafting the Detention Plan and
followed by detention facility staff accordingly. Also with regards to strip searches
only, and pursuant to standard 2.10 ofICE' s 2011 PENDS, special care should be
taken to ensure that transgender detainees are searched in private. Searches shall be
conducted in a professional and respectful manner, and in the least restrictive
manner possible, consistent with security needs. Pursuant to DHS PREA
Standards, at no time shall any search be conducted solely for the purpose of
determining a detainee' s biological sex. Requests for transgender detainees to
remove appearance related items such as prosthetics, clothing that conveys gender
identity, wigs, and cosmetics shall be consistent with requirements for the removal
of similar items for other non-transgender detainees. All strip searches shall be
documented.

vi)

Staff Communication: Detention facility staff shall refer to transgender detainees
by their preferred pronouns.

vii) Medical Care: Pursuant to existing ICE detention standards, transgender detainees
who were already receiving hormone therapy when taken into ICE custody shall
have continued access to hormone therapy; those who have not yet begun treatment
will be assessed and treated, if deemed medically necessary and safe in the context
of their other medical conditions. All transgender detainees shall have access to
continued mental health care and other transgender-related health care based on
medical need. Medical care for transgender detainees shall be provided by qualified

Further Guidance Regarding the Care of Transgender Detainees
Page 11of18
and appropriate medical professionals and administered pursuant to the applicable
ICE detention standards.
f) Decision: The TCCC will attempt to reach consensus on all decisions.
i)

The TCCC shall retain summary notes of each meeting to document persons
attending and conclusions reached. A copy of the notes shall be placed in the
detainee' s detention file.

ii)

Absent extraordinary circumstances, a written Detention Plan by the TCCC for the
detainee, including housing assignment, shall be forwarded to the facility
classification supervisor within 72 hours (excluding weekends, holidays, and
emergencies) of the detainee's arrival at the facility, and maintained in the
detainee's detention file; a copy of the plan and housing assignment shall also be
provided to the detainee.

g) Implementation of Detention Plan: The classification supervisor shall notify line staff
of the TCCC's Detention Plan and housing assignment decision.
i)

Detention facility staff shall follow the Detention Plan outlined by the TCCC. If a
detention facility staff member identifies a safety or security risk posed by the
TCCC's plan? the staff member must inform the TCCC directly, or must notify
his/her supervisor as soon as practicable, and that supervisor must notify the TCCC.
The TCCC shall review the case and make adjustments to the Detention Plan, if
necessary, within 72 hours (excluding weekends, holidays, and emergencies) of
receiving notification.

ii)

In the case of an immediate threat to the safety or security of the transgender
detainee or others, the detention facility staff may make a temporary change(s) to
the TCCC's plan (to include housing assignment), but should notify the TCCC as
soon as possible. Only the TCCC can approve permanent change(s) to the
Detention Plan.

h) Reassessment: The TCCC shall reassess a transgender detainee's Detention Plan and
housing assignment after 30 days following the initial determination and then every 60
days thereafter or at any other time if additional relevant information becomes known, or
following any incident of victimization or threats to safety experienced by the detainee.
As part of its reassessment, the TCCC shall, at a minimum, consider:
i) Changes in the trans gender detainee' s housing preferences;
ii) Variations in the detainee's medical and/or mental health status;
iii) Safety/security of the detainee, other detainees, and/or facility staff;

Further Guidance Regarding the Care of Transgender Detainees
Page 12of18
iv) Any threats to safety experienced by the detainee;
v) Continued availability of housing; and
vi) The detention facility's documented concerns.

Further Guidance Regarding the Care of Transgender Detainees
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TCCC Determination Questions Guide
In preparation for the TCCC meeting, the designated facility medical representative(s), shall
meet with the detainee no later than 72 hours (excluding weekends, holidays, and emergencies)
after the detainee' s arrival to the facility to gather information necessary to verify the transgender
classification, and to solicit detainee's preferences and requests with regards to housing,
searches, and other matters. The ERO LGBTI Field Liaison may also participate in any meeting
with the detainee. The following questions are provided to assist in this initial meeting, but may
be used in other settings as deemed appropriate.
I) Do you identify as transgender?
IF YES to #I, then proceed to ask the following questions:
Name
2) Do you go by or use any other name(s) or aliases?
3) What pronoun(s) do you prefer others use to refer to you?
Medical Issues
4) Prior to coming here, were you taking any hormonal medications?
a. If yes, what were they?
b. How often were you taking them?
c. Were these prescribed by a doctor?
Hygiene and Grooming
5) Do you prefer to wear male or female clothing?
6) Are there any specific clothing items (e.g., undergarments) that you need that have not
been provided?
7) Are there any specific personal hygiene items that you need that have not been provided?
Housing
8) Do you feel you are at risk for your safety based on your gender identity?
a. Would you feel safer being housed with men or women?
b. Would you feel safer being housed with transgender women or men?
c. Would you feel safer being housed in a cell with someone else or by yourself?
Programming
9) Do you feel comfortable being around male and female detainees during recreation,
organized programs, or other types of group activities?
a. If not, would you prefer to be separated from males or females?
b. Do you feel you require complete separation, or would specific types of
safeguards (e.g., sight or sound separation, staff escort) address your concem(s)?
Searches
I 0) Do you have a preference for whether a male or female staff member searches you? If so,
which would you prefer?

Further Guidance Regarding the Care of Transgender Detainees
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Other
11) Is there anything else we should know about you related to being transgender-any
particular concerns?
12) Are there any other specific precautions and/or accommodations you think you would
like to have to ensure your safety and welfare while at this facility?

Further Guidance Regarding the Care of Transgender Detainees
Page 15of18

ATTACHMENT 2:
PREA and PBNDS Requirements Related To Transgender Detainees
Pursuant to Section 3(e) of this memorandum, applicable requirements from ICE detention
standards and the DHS PREA Standards include:
a) Classification and Housing
i) At facilities governed by the DHS PREA Standards or PBNDS 2011, facility staff
must consider the detainee's gender self-identification and an assessment of the
effects of placement on the detainee's health and safety, when making classification
and housing decisions for transgender or intersex detainees. A medical or mental
health professional must be consulted as soon as practicable on this assessment. The
facility may not base placement decisions solely on identity documents or the
physical anatomy of the detainee; rather, a detainee's self-identification and selfassessment of safety needs must always be taken into consideration as well.

ii) At facilities governed by PBNDS 2008 or NDS, and which use ICE's Detainee
Classification System, facility staff must take into consideration and document
whether a detainee requires protective custody to ensure his/her safety and wellbeing, such as because of perceived or actual sexual orientation or gender identity.
b) Showering and Privacy
i) At facilities governed by the DHS PREA Standards, transgender and intersex
detainees must be given the opportunity to shower separately from other detainees
when operationally feasible.

ii) At facilities governed by PBNDS 2011 or PBNDS 2008, transgender detainees must
be provided with a reasonably private environment for bathing and toilet facilities, in
accordance with safety and security needs.
c) Personal Hygiene and Grooming
i) The detention standards do not restrict the provision of gender appropriate clothing.
In general, brassieres should be provided to individuals who request them, as
appropriate.

ii) At facilities governed by PBNDS 2011 or PBNDS 2008, transgender detainees should
be allowed freedom in personal grooming, and access to commissary items (including
those appropriate for the detainee's identified gender) absent a valid safety, security,
or medical concern that is fully justified and documented.

Further Guidance Regarding the Care ofTransgender Detainees
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d) Medical Care
i) At facilities governed by PBNDS 2011, initial medical screening must inquire into a
transgender detainee's gender self-identification and history of transition-related care.
Transgender detainees who were already receiving hormone therapy when taken into
ICE custody shall be provided continued access, and all transgender detainees must
have access to mental health care and other transgender-related health care and
medication (such as hormone therapy) based on medical need. Treatment must
follow accepted guidelines regarding medically necessary transition-related care.

Further Guidance Regarding the Care ofTransgender Detainees
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ATTACHMENT 3: Definitions
The following definitions apply for purposes of this memorandum only:

1. ·

Biological Sex. An individual's biological status as either male or female, typically
assigned at birth, and associated primarily with physical attributes such as chromosomes,
hormone prevalence, and external and internal anatomy.

2.

Detainee. An individual detained in ERO custody.

3.

Detention Plan. A plan for a transgender detainee, constructed by the Transgender
Classification and Care Committee at an ICE detention facility with instructions for how
to address issues including, but not limited to, housing, clothing, showering, grooming,
name and pronoun use, recreation, programming, escort, transportation, searches,
privacy, etc.

4.

Diagnostic and Statistical Manual of Mental Disorders (DSM). The standard
classification of mental disorders used by mental health professionals in the United States
as published by the American Psychiatric Association. DSM-5 (Fifth Edition) is the most
current edition of the drafting of this guidance.

5.

Gender Affirming Surgery. Surgical alteration of male or female genitals, or the
reshaping, by any surgical procedure, of a male body into a body with female appearance,
or vice versa. Also referred to as "sex reassignment surgery (SRS)," "gender
reassignment surgery (ORS)," or by other names. Note: gender affirming surgery is the
preferred name.

6.

Gender Dysphoria. Medical diagnosis in the American Psychiatric Association's
DSM-5 that describes the distress that may accompany the incongruence between an
individual's experienced or expressed gender and the individual's biological sex. This
was previously known as Gender Identity Disorder.

7.

Gender Expression. The ways in which an individual communicates/displays his/her
gender identity to others; a combination of appearance, demeanor, and behavior.

8.

Gender Identity. An individual's internal sense of being a man, woman, or another
gender. It is not necessarily based on the individual's biological sex or on the
individual's sexual orientation. Because gender identity is internal, it is not necessarily
visible to others, but may be externally manifested in the individual's appearance,
behavior, demeanor or other aspects of the individual's life.

9.

Gender Non-Conforming. Having an appearance or manner that does not conform to
traditional societal gender expectations.

10.

Intersex. Having sexual or reproductive anatomy or chromosomal pattern that do not

Further Guidance Regarding the Care of Transgender Detainees
Page 18of18
seem to fit typical definitions of male or female. Intersex medical conditions are
sometimes referred to as disorders of sex development.

11.

LGBTI. The acronym for Lesbian, Gay, Bisexual, Transgender, and lntersex.

12.

Sexual Orientation. A pattern of romantic, emotional, physical, and/or sexual attraction
towards members of the same, opposite, or both sexes. Includes homosexuality,
heterosexuality, and bisexuality.

13.

Transgender. A person whose gender identity (i.e., internal sense of feeling male or
female) is different from the sex assigned to the person at birth.

14.

Transgender Classification and Care Committee (TCCC). The detention facility
committee that gathers information and asse~ses the gender identity of the detainee, and
produces and regularly assesses a Detention Plan for a transgender detainee.

15.

Transgender man. An individual who is a biological female and has a gender identity as
a man.

16.

Transgender woman. An individwil who is a biological male and has a gender identity
asa woman.

17.

Transition. The process by which an individual changes his/her gender from that
assigned at birth to one with which he/she now identifies. This may include making
personal, legal, and medical changes to his/her gender, such as changing his/her name
and/or gender on legal documents; undergoing hormone therapy; and/or undergoing
one or more forms of surgery.

 

 

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