Jena Faith’s experience in the Steuben County Jail was a living nightmare.

The military veteran spent four weeks in the jail awaiting trial last spring. She was initially housed in the jail’s women’s facility without incident, but things changed when officials suddenly transferred her to the men’s facility, despite the fact that she is a woman.

During the weeks that Jena spent as a woman in a men’s jail, she was routinely targeted with physical and verbal harassment from other incarcerated people and guards. On her first day in the men’s facility, a fellow incarcerated person started touching her body and blowing kisses at her, making her feel scared and uncomfortable. When Jena told him to stop, he said that he wanted to marry her, and he wrote her several letters claiming he was in love with her. Afraid, Jena showed the jail’s guards, but all they did was move her to another section of the men’s general population, where she was promptly targeted by another man.

She knew her new harasser to be violent, but even as he repeatedly hurled threatening transphobic slurs at her in the presence of guards, they did nothing beyond telling him to stop a single time. The guards also started calling her “mister” and “a man,” even though she explained to them that she was a transgender woman. Terrified, Jena spent the rest of her days in the men’s facility feeling sick and scared to leave her cell.

Jail officials also denied Jena her doctor-prescribed hormone therapy, even as they made sure to give her all of her other prescribed medications, which led to hot flashes, cold flashes, nausea, and stomach pain. Since she was released from jail, Jena continues to suffer through sleepless nights and night terrors because of what she went through.

On August 22, the New York Civil Liberties Union, along with the Transgender Legal Defense & Education Fund and the law firm BakerHostetler, filed a lawsuit on behalf of Jena. It argues that what happened to her is a violation of numerous state laws designed to protect the rights, dignity, and humanity of trans people.

While Jena’s experience was harrowing, it’s not unique. Across the state, trans people are often held in jail and prison facilities that are not consistent with their gender, even though state law prohibits discrimination on the basis of gender identity and courts have held that it’s discriminatory to refuse to treat a person consistently with their gender identity. In part because they are housed incorrectly, trans people are exposed to overwhelming levels of abuse and harassment while behind bars, and they are far more likely than cisgender people to be targeted for the worst types of violence and mistreatment.

Part of the reason this problem is so widespread is that the state has not made it crystal clear to jail and prison officials that the laws protecting trans people apply when they are incarcerated.

But there are steps New York can take immediately to make sure other people don’t endure what Jena experienced.

To start with, the State Commission on Correction (the SCOC), under the direction of Governor Cuomo, should adopt minimum standards to ensure the safety and well-being of LGBT people in county facilities. This guidance is needed because some jails are clearly waiting for the state to act before they do anything to change how trans people are treated. A Rensselaer County official, for example, told the NYCLU they would not address the safety of trans prisoners unless the SCOC required it.

Gov. Cuomo has loudly proclaimed that he’s a defender of LGBTQ people, and he even instituted a travel boycott of North Carolina when lawmakers there passed legislation denying trans people access to facilities that correspond with their gender identity.

But on the issue of incarcerated trans people’s right here in New York to be free of the same type of discrimination that he objected to in North Carolina, Cuomo’s administration has been silent. The NYCLU sent a letter to the SCOC in February urging it to put out regulations to protect LGBT people. We received no response.

State lawmakers also have a role to play here. They can and should pass legislation that helps to clarify and protect the rights of LGBT people when they’re incarcerated.

We have a long way to go, but these actions would be a critical first step towards making New York a place where people like Jena Faith are not punished for who they are.

Simon McCormack, Staff Writer, New York Civil Liberties Union; Contributing Writer, Speak Freely
& Bobby Hodgson, Staff Attorney, New York Civil Liberties Union

Last week, a federal appeals court ruled that the Commonwealth of Kentucky was liable for $224,000 for the actions of Kim Davis, who refused to do her job and issue marriage licenses (to same-sex or different-sex couples) as county clerk.

While Davis’ story made national headlines, her case isn’t the only one in the past year where a court case filed by the ACLU has led to a bill for discrimination for the actions of a government official. It isn’t the officials that have to pay out, however. It is the taxpayers of the jurisdiction that violated LGBTQ people’s rights.

WISCONSIN - Alina Boyden and Shannon Andrews

Alina and Shannon are state employees in Wisconsin. Both were denied gender-affirming care under the state’s insurance plan. In order to pay for her care, Shannon dipped into her retirement fund. Alina put off some gender-affirming care.

After Shannon and Alina spoke before a jury, Shannon was awarded $479,000 and her co-plaintiff, Alina, was awarded $301,000. When combined with costs and fees associated with the case, taxpayers were sent a bill for $1,670,000.

Read the case

IOWA - Jesse Vroegh

Jesse Vroegh was a staff nurse at the Iowa Correctional Institution for Women (ICIW) for over seven years. When he asked for gender-affirming health care along with use of the men’s locker room, he was denied.

Jesse also had to appear before a jury and have his life put under a microscope. In the end, the jury said what happened to Jesse was unjust and awarded him $120,000.

Read the case

In a non-ACLU case, an Iowa jury determined that another state employee who faced employment discrimination for being gay was owed $1.5 million in June.

These numbers do not include the millions of dollars Kentucky, Iowa and Wisconsin have spent on their own attorneys to defend these discriminatory actions.

Being turned away when seeking a marriage license was humiliating for our clients. Being denied medically necessary health care is dangerous. Being told that you cannot use the same facilities that any other employee uses is isolating. And, sadly, the Trump administration thinks this is OK.

These cases aren’t just about the damages awards, they are about seeking justice.

If you are a taxpayer that is upset about paying this bill, the answer is simple: tell your officials not to discriminate against LGBTQ people.

James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & HIV Project

The Transportation Security Administration is planning to test a face recognition system that could be used on all domestic U.S. fliers, according to a document the agency released today. That would represent a significant expansion of face recognition in daily life.

In the test, which will occur at McCarran airport in Las Vegas, passengers entering the TSA security area will be photographed and a face recognition algorithm applied in an attempt to tell whether they match the photograph on their IDs. The system adds face recognition to a technology that the TSA has been working on for years called Credential Authentication Technology, which scans a passenger’s driver’s license or other ID document and attempts to automatically determine whether it is authentic.

If the TSA decides that the system works well, we can assume the agency will use it to replace human document checkers throughout the domestic aviation system. This program is part of the TSA’s sweeping vision to deploy face surveillance at the nation’s airports, and comes on the heels of a similar deployment by CBP at the gates of departing international flights. If widely deployed, the TSA's program would (as we said of the CBP program) socialize people to accept face recognition and normalize the technology, inevitably be subject to mission creep, and expose people to the judgments of unreliable and biased algorithms.

For purposes of this test, the TSA says it will only run the system on passengers who volunteer to participate. “The passenger’s facial image, along with certain biographic information from the passenger’s identity document, will be collected by TSA and retained for subsequent qualitative and quantitative analysis” by DHS technical experts. Names and identification numbers will be obfuscated before the data is transferred for analysis, the agency says, and the data will be deleted within 180 days.

But the real question is what data will be collected and how will it be handled if this technology moves beyond tests? Will passengers be able to opt out? Will the agency want to collect and store passengers’ photographs to improve the training of their face recognition algorithms? Will passengers’ photos be run against photographic watch lists, exposing every passenger to the risk of being misidentified as a serious terrorist or other criminal every time they fly?

And what are the implications of introducing a technology for the automated checking of IDs? Like many airport security measures, such technology may very well expand beyond the airport and into daily life. When ID checks can be done by machines that are much cheaper and easier to deploy than human guards, will we find ourselves being subject to ever-more-frequent checks? When ID checks become cheap and easily scalable they will inevitably be over-used, as we have seen happen with other surveillance technologies.

Finally, as I have explained in depth before, one of the biggest problems with this use of face recognition is that it represents an ever-growing investment by the TSA in identity-based security — security based on knowing more and more information about people and trying to use that information to assess their “risk to aviation.” The TSA should instead be focused on making sure that nobody — no matter who they are — can bring guns or explosives onto aircraft. Face recognition is an investment that is bad for security and that is likely to have bad side effects on our society to boot.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project