Justice Department Reviewing Policies on Transgender Inmates

September 17, 2021

WASHINGTON — The Justice Department is reviewing its policies on housing transgender inmates in the federal prison system after protections for transgender prisoners were rolled back in the Trump administration, The Associated Press has learned.

The federal Bureau of Prisons' policies for transgender inmates were thrust into the spotlight this week after a leader of an Illinois anti-government militia group — who identifies as transgender — was sentenced to 53 years in prison for masterminding the 2017 bombing of a Minnesota mosque.

Emily Claire Hari, who was charged, tried and convicted as Michael Hari, was sentenced Monday for the bombing of Dar Al-Farooq Islamic Center in Bloomington, Minnesota. It will now be up to the Bureau of Prisons' Transgender Executive Council — a group of psychology and correctional officials — to determine where to house Hari in a system of 122 federal prisons.

Under the Obama administration, the bureau's policies for transgender inmates — known as the Transgender Offender Manual — called for that council to "recommend housing by gender identity when appropriate." That language was changed in the Trump administration to require the committee to "use biological sex as the initial determination."

The Trump-era manual, which remains in effect, says the agency would assign an inmate to a facility based on identified gender only "in rare cases." About 1,200 inmates — of the nearly 156,000 federal prisoners in the United States — identify as transgender, a Justice Department official said.

The prison transgender council, established in 2016, consists of about 10 people, including two psychologists, a psychiatrist and prison designation experts, a Justice Department official told the AP. The official was not authorized to speak publicly about the issue and spoke on condition of anonymity. 

The council must consider an inmate's health and safety, any potential history of disciplinary action and the security level of the federal prison where the inmate could be assigned. Other factors include staffing in prisons, and the programs or classes the inmate might need. 

Because Hari has already been sentenced, the council must decide quickly on a prison because Hari will have to be transferred into the Bureau of Prisons. 

A Justice Department spokesperson said the bureau is committed to providing all inmates with a safe and humane environment, "Including providing gender-affirming housing where appropriate. BOP is in the process of reviewing the current version of its policy regarding transgender inmates."

There are few high-security federal prisons for female inmates, which would also factor into Hari's placement. Because of the crime Hari committed, it is likely Hari would need to be housed in a high-security prison, as opposed to a medium or low-security facility.

Many transgender inmates also don't request to be assigned to prisons to match their gender identity, the Justice Department official said, in part for their own safety.

Prosecutors said during the trial that hatred for Muslims motivated Hari to carry out the attack, which didn't physically hurt anyone but traumatized the mosque's community.

Several men were gathered for early morning prayers at Dar Al-Farooq on Aug. 5, 2017, when a pipe bomb was thrown into an imam's office and detonated. Hari and co-defendants Joe Morris and Michael McWhorter, were tracked by authorities to Clarence, Illinois, a rural community about 120 miles (190 kilometers) south of Chicago where they lived, after a seven-month investigation.

Hari, 50, was convicted in December of five counts that include using explosives, obstructing the free exercise of religious beliefs and damaging property because of its religious character. Prosecutors said Hari masterminded the attack, citing anti-Muslim rhetoric in Hari's manifesto called The White Rabbit Handbook, named after the militia Hari formed that included Morris, McWhorter and others.

According to court documents, Hari informed a Minnesota jail deputy in late December about her gender dysphoria, and requested to be moved to a women's facility and provided with hormone replacement therapy. Documents filed by the defense describe Hari's gender dysphoria as "unbearable" and that, along with right-wing misinformation, fueled an "inner conflict" during the time of the bombing.

"She strongly desired making a full transition but knew she would be ostracized from everyone and everything she knew," defense lawyer Shannon Elkins wrote. "Thus, as she formed a rag-tag group of freedom fighters or militia men and spoke of missions to Cuba and Venezuela, Ms. Hari secretly looked up 'sex change,' 'transgender surgery,' and 'post-op transgender' on the internet."

Elkins said Hari was living a double life, planning a trip to Thailand for male-to-female surgery and purchasing female clothes while buying military fatigues for the militia.

Elkins did not return calls seeking an interview on where Hari hoped to serve the prison sentence.

Prosecutors said it was offensive to use gender dysphoria to deflect guilt from the attack, which prosecutors said Hari refused to take responsibility for. U.S. District Judge Donovan Frank, who was appointed by President Bill Clinton, said during Monday's sentencing hearing that he was prepared to recommend that Hari be sent to a women's facility but the final decision was up to the Bureau of Prisons.


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