It's pretty common in culture, from Turkey to Tennessee, for a public that otherwise does not condone rape to joke about it when it comes to male criminals. And the more heinous the crime, not only does it become acceptable, but almost demanded in a justice system that often favors criminals over victims.

But raping women isn't acceptable in civilized countries. In the modern decade, 'gender' has become a subjective thing. Anthropology papers will even strangely let 'other', including alien life forms, be considered a valid gender in their surveys.

All this confusion puts transgendered inmates, obviously among a population that is neither educated nor tolerant, in a risky position. Gina Gibbs, a lawyer and University of Cincinnati criminal justice doctoral student, notes that at the center of the debate are Eighth Amendment protections against cruel and unusual punishment, widely varying policies on the treatment of transgendered populations and, Gibbs says, court crackdowns on prison systems, "ordering them to fix a problem that they don't know how to approach."

She states that the word "transgendered" is just now emerging in prison research and literature, despite evidence that transgendered inmates have always been a part of the prison population. She states that in years past, transgendered inmates had been referred to as "punks" or "queens" by the general prison population. 

"The most significant issues the transgendered pose to prison staff concern booking and processing procedures, housing selection and safety, security lockdown, daily rule infractions and health care concerns," Gibbs states in the paper. Varying policies regarding body searches, clothing allowances, segregation procedures, as well as issuing diagnosis and health care treatments. "Despite the numerous issues arising from these inmates, administrators and legislators continue to ignore them by refusing to develop cohesive policies, making employees and institutions vulnerable to costly litigation and court interference." 

Gibbs says the Bradley Manning case shed an international spotlight on the issue, when the U.S. soldier was convicted of espionage in 2013 for leaking classified U.S. documents. Manning began to identify as female, now calls himself Chelsea, and is seeking taxpayer-funded hormone replacement therapy from a military prison after receiving a 35-year sentence for being a traitor. Despite a diagnosis of gender dysmorphia, Manning has been refused the treatment and has turned to the courts for assistance.

Gender dysmorphia is a long-known psychological condition and the fifth edition of the Diagnosfic and Stafisfical Manual of Mental Disorders (DSM-5) has declared it a medical one, but the National Institute of Mental Health, part of the National Institutes of Health, has declared that the newest DSM will be used by them because of a confluence of special interests declaring psychological conditions as medical ones in order to get covered by insurance.

So it would be up to a court to accept or refute Manning's diagnosis. "When the Eighth Amendment is applied to ignoring excessive medical conditions, prisons can be held liable. Yet it's not clear whether hormone treatments should be required, because the U.S. Supreme Court is not clear on how to define transgendered," says Gibbs. 

The majority of the transgendered population is male but identifies as female. 

"My goal is to support both sides," Gibbs says. "We have a constitutional duty to provide proper treatment for inmates. On the other hand, with these varying policies, prison administrators need to be protected from liability."

Gibbs concludes that, "Certain groups within the inmate population are known for causing greater difficulty and therefore require clear-cut policies addressing issues specific to them. The transgendered population is one such group. Often, these separate policies are not developed until a crisis occurs, such as an inmate stabbing or violent rape, which requires administrators to act. Prior action indicates that administrators and Department of Corrections' officials will once again wait for a crisis before addressing the issues created by transgendered inmates."

Presented at the annual meeting of the American Society of Criminology. Source: University of Cincinnati