CORRECTIONAL FACILITIES
EDITED BY SONJA BREDA, EMMA MOSES, TESS OSTROFF, ERIKA HINKLE, &
RILEY SMITH
I. INTRODUCTION ........................................ 400
II. GENDER DISPARITY IN PRISON PROGRAMS ..................... 400
A. CLAIMS UNDER THE FOURTEENTH AMENDMENT’S EQUAL
PROTECTION CLAUSE ................................ 402
B. CLAIMS UNDER TITLE IX OF THE EDUCATION AMENDMENTS ACT
OF 1972 ........................................ 403
III. SEXUAL VIOLENCE IN PRISON .............................. 405
A. PREA IN IMMIGRATION DETENTION FACILITIES ............. 408
B. PREA IN MILITARY DETENTION FACILITIES ................ 410
C. SEXUAL ABUSE OF FEMALE PRISONERS BY PRISON GUARDS . . . . . 411
D. INMATE-ON-INMATE SEXUAL ABUSE ..................... 415
IV. REPRODUCTIVE RIGHTS OF INCARCERATED WOMEN ............... 416
A. PROVISION OF GYNECOLOGICAL AND OBSTETRIC HEALTH CARE . . 416
B. PREGNANCY, CHILDBIRTH, AND CHILD CARE IN CUSTODY ...... 417
C. ACCESS TO ABORTION ............................... 420
V. TRANSGENDER PRISONERS ................................ 422
A. REPRESENTATION IN GENERAL PRISON POPULATION .. . . . . . . . . . 422
B. HOUSING AND TREATMENT IN CUSTODY .. . . . . . . . . . . . . . . . . . 422
C. SEXUAL VIOLENCE ................................. 424
D. GENDER-AFFIRMING CARE IN PRISON .................... 425
VI. GENDER DISPARITY ON DEATH ROW ......................... 427
VII. OTHER TYPES OF CORRECTIONAL FACILITIES ................... 431
VIII. CONCLUSION .. ........................................ 437
399
I. INTRODUCTION
Since the turn of the century, there has been an increase in scholarship on gen-
der discrimination, segregation, and abuse in the United States (U.S.) prison sys-
tem.
1
This Article explores a number of the unique legal issues raised by gender
disparities and distinctions in correctional facilities. Part II of this Article exam-
ines the disparate provision of prison services to women, specifically highlighting
courts’ reactions to both equal protection and Title IX lawsuits brought by female
prisoners. Part III focuses on the continuing pervasiveness of sexual violence in
prisons, addressing the prison policies that facilitate sexual abuse and the legisla -
tive impediments rape survivors face in accessing legal remedies. Part IV ana-
lyzes the often-neglected reproductive health needs of female prisoners. Part V
addresses the placement and protection of transgender prisoners in correctional
facilities. Part VI explores the gender disparity in capital sentencing. Finally, Part
VII looks into disparate gender treatment in immigration facilities. Part VIII con-
cludes the Article.
II. GENDER DISPARITY IN PRISON PROGRAMS
While females historically constituted a very small percentage of the total
prison population, over the last quarter century, the number of females in prison
has risen drastically.
2
See Kristen M. Budd, Incarcerated Women and Girls, SENT’G PROJECT 1 (July 24, 2024), https://
perma.cc/HHR5-55TE (noting that the number of incarcerated women was nearly seven times higher in
2022 than in 1980).
Between 1980 and 2022, the number of incarcerated
females in the U.S. increased from 26,326 to 180,684—an increase of more than
585%.
3
Incarceration rates have dropped over the past decade, but most of these
decreases are attributable to male prisoners.
4
See Incarceration Trends, VERA (June 11, 2024), https://perma.cc/NW92-QL4K (explaining that,
while the total number of people incarcerated in the U.S. has decreased in recent years, the rate of
incarceration for women has actually increased).
From 2012 to 2022, the number of
incarcerated women decreased by approximately 12.9%, while the male incarceration
1. See Spencer K. Beall, “Lock Her Up!” How Women Have Become the Fastest-Growing
Population in the American Carceral State, 23 BERKELEY J. CRIM. L. 1, 4 (2018) (arguing that women’s
incarceration is a “unique feature” of American mass incarceration that should be more widely studied);
Grace DiLaura, Comment, “Not Susceptible to the Logic of Turner”: Johnson v. California and the
Future of Gender Equal Protection Claims From Prisons, 60 UCLA L. REV. 506, 510 (2012) (noting
that scholars have discussed the potential impact of Johnson v. California on gender equal protection
cases); Lara Hoffman, Separate But Unequal - When Overcrowded: Sex Discrimination in Jail Early
Release Policies, 15 WM. & MARY J. WOMEN & L. 591, 595 (2009) (observing that a number of articles
have studied gender differences in prison programming); Kim Shayo Buchanan, Impunity: Sexual Abuse
in Women’s Prisons, 42 HARV. C.R.-C.L. L. REV. 45, 48 (2007) (highlighting how “gendered
racialization of women prisoners informs legal and institutional indifference to their treatment in
prison”); Chime
`ne I. Keitner, Victim or Vamp? Images of Violent Women in the Criminal Justice
System, 11 COLUM. J. GENDER & L. 38, 39 (2002); Martin A. Geer, Human Rights and Wrongs in Our
Own Backyard: Incorporating International Human Rights Protections Under Domestic Civil Rights
Law—A Case Study of Women in United States Prisons, 13 HARV. HUM. RTS. J. 71, 87 (2000).
2.
3. Id.
4.
400 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:399
rate decreased more dramatically, by approximately 18.6%.
5
See Emily D. Buehler & Rich Kluckow, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., NCJ
308699, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2022–STATISTICAL TABLES 8 (May
2024), https://perma.cc/9JLA-XBW7.
Much of this decline
can be attributed to the COVID-19 pandemic, incarceration rates have been
increasing once following the pandemic and are approaching pre-pandemic lev-
els.
6
Id. at 1; E. Ann Carson, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., NCJ 304500, IMPACT OF
COVID-19 ON STATE AND FEDERAL PRISONS, MARCH 2020-FEBRUARY 2021 1 (Aug. 2022), https://
perma.cc/3XX9-UTP2.
Between 2020 and 2022, the number of incarcerated women increased by
18%.
7
Despite the growth rate of the female prison population, the number of
women in prison remains far lower than the number of men; women comprise
approximately 9.5% of the total prison population.
8
Female prisoners generally receive lower quality programs, facilities, and basic
conditions of confinement than male prisoners.
9
See Torrey McConnell, Comment, The War on Women: The Collateral Consequences of Female
Incarceration, 21 LEWIS & CLARK L. REV. 493, 501 (2017) (explaining that “[b]ecause women still
make up such a minority of the prison population, facilities lack the motivation and the financial
resources to take into account the key differences between male and female offenders.”); Candice
Norwood, A Comprehensive Report on Incarceration and Women Outlines the Gender Disparities, THE
19TH (Mar. 17, 2023), https://perma.cc/L4XC-JNDN.
For example, vocational opportu-
nities for female prisoners are often confined to traditional “female” occupations,
such as upholstery.
10
See Adam Harris, Women in Prison Take Home Economics, While Men Take Carpentry, THE
ATLANTIC (Apr. 30, 2018), https://perma.cc/DT6V-V354.
Correctional facilities themselves are often designed with
male prisoners in mind, making them ill-equipped to provide adequate care to
female prisoners. As a result, incarcerated women experience difficulty accessing
medical care related to reproductive health, pregnancy, and menstruation.
11
Transgender women in prison, typically held in men’s facilities, face unique chal-
lenges in healthcare access, particularly when it comes to gender-affirming
care.
12
Furthermore, incarcerated women often do not receive critical mental
health care, even though they experience mental illness and substance use disor-
ders at a far higher rate than incarcerated men, which can be attributed to the
prevalence of trauma, sexual abuse, and violence against vulnerable female popu-
lations.
13
Gender disparities among inmates also extend to family status, with
incarcerated women being five times more likely than incarcerated men to have
their children placed in foster care, and female prisoners having their parental
5.
6.
7. See Budd, supra note 2, at 1.
8. See Buehler & Kluckow, supra note 5, at 8.
9.
10.
11. See Shelly Clevenger and Jordana N. Navarro, The Gendered Nature of Punishment , in
GENDERING CRIMINOLOGY: CRIME AND JUSTICE TODAY 227-28 (2021).
12. See Jaclyn M. White Hughto, Kirsty A. Clark, Frederick L. Altice, Sari L. Reisner, Trace
S. Kershaw, & John E. Pachankis, Creating, Reinforcing, and Resisting the Gender Binary: A
Qualitative Study of Transgender Women’s Healthcare Experiences in Sex-Segregated Jails and
Prisons, 14 INT’L J. PRISONER HEALTH 69, 80 (2018).
13. See NAT’L COMM’N ON CORR. HEALTH CARE, POSITION STATEMENT: WOMEN’S HEALTH CARE IN
CORRECTIONAL SETTINGS 1-2 (2020).
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