Justice Department is reviewing Trump-era policies on transgender inmates

Federal prison in Lompoc, Calif.
The federal penitentiary in Lompoc, Calif.
(Jeffrey May / Santa Maria Times)

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

The federal Bureau of Prisons’ policies for trans 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, Minn. 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 trans inmates, compiled in the Transgender Offender Manual, called for the 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 gender identification only “in rare cases.” About 1,200 inmates of the nearly 156,000 federal prisoners in the U.S. identify as transgender, a Justice Department official said.

The council on trans prisoners, 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.

There have been more than 260 requests for housing transfers this year under a new law that gives transgender, intersex and nonbinary inmates the right, regardless of anatomy, to be housed based on their gender identity.

April 5, 2021

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 prison staffing and the programs or classes the inmate might need.

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 she 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.

A 57-year-old convicted killer serving a life sentence has become the first U.S. inmate to receive state-funded sex-reassignment surgery, the prisoner’s attorneys confirmed Friday.

Jan. 6, 2017

Prosecutors said during Hari’s trial that hatred for Muslims motivated her to carry out the attack, which didn’t physically hurt anyone but traumatized the local Muslim 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, Ill., a rural community about 120 miles south of Chicago, 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.

According to court documents, Hari informed a Minnesota jail deputy in late December of 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 say that the stress, 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 ragtag 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 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 culpability for the attack, which prosecutors said Hari refused to take responsibility for. U.S. District Judge Donovan Frank, who was appointed by President 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.