- "A Means of Assuring the Safe and Efficient Operation of a Prison"Segregation, Security, and Gender Nonconformity
In 1983, Lavarita Meriwether filed a federal civil rights lawsuit against the Indiana Department of Corrections, challenging, in part, her indefinite confinement in administrative segregation. Meriwether, a trans woman who had been taking hormones for nearly a decade and had undergone a number of gender-affirming surgeries prior to her incarceration, had been confined in segregated "protective custody" units at two different men's institutions.1 In her complaint, Meriwether told of constant harassment, violence, and sexual assault at the hands of prison officials and other prisoners in general population and segregation. In segregation, she was isolated and denied access to adequate recreation, living space, and vocational and educational programs.
An Indiana district court dismissed her complaint, arguing in Meriwether v. Faulkner that her confinement in segregation was "a means of assuring the safe and efficient operation of a prison on a day-to-day basis."2 While the Seventh Circuit Court of Appeals reversed the district court's dismissal, calling it "premature," the Seventh Circuit agreed with the lower court that Meriwether constituted a threat to institutional security because of her feminine body.3
Indiana prison administrators' treatment of Meriwether continued a long and ongoing history of the systematic segregation of gender nonconforming prisoners. In this essay, I analyze the Seventh Circuit's Meriwether v. Faulkner decision, contextualizing it first within this longer history. I argue that this practice of segregation both relied on and produced gender and sexual nonconformity as a threat to institutional security from the early twentieth century into the present. This narrative facilitated and justified the violent, isolating conditions of segregation, turning protection into punishment. This carceral logic informed the Meriwether decision, one of the first published opinions regarding the constitutional rights of an incarcerated trans woman, a decision that has informed legal reasoning about the conditions of confinement for incarcerated trans women for the following decades. [End Page 174]
Isolating Gender and Sexual Nonconformity
US prison and jail administrators have long used segregation as a tool to manage gender nonconforming and homosexual prisoners in men's penal institutions. The practice began around the turn of the twentieth century in New York City, and, by the 1930s, it was common practice in many men's jails and prisons throughout most of the United States (Lichtenstein 1921; Fishman 1934). Historians Regina Kunzel (2008) and George Chauncey (1994) have documented the use of this type of segregation as a tool to eliminate sex between prisoners. In Criminal Intimacy: Prison and the Uneven History of Modern American Sexuality, Kunzel argues that sex between prisoners was a primary concern of prison administrators since the modern inception of the US prison system in the early nineteenth century. During the nineteenth century and into the twentieth, administrators primarily believed that sex was the result of "the unnatural mixing of inmates of different types and status," especially differences of age (Kunzel 2008: 29). As Kunzel argues, penologists were greatly influenced by—and in turn, greatly influenced—medical, social scientific, and popular constructions of sexuality. By the early twentieth century, dominant understandings of sexuality began to shift to produce homosexuals (and heterosexuals) as a particular type of person. During this time, the homosexual—also called the "queen" or "fairy"—was marked by not only same-sex desire but also gender nonconformity. As prison and jail administrators began to recognize these homosexuals in their populations—a recognition primarily based on visible gender nonconformity—they began to segregate them from the general population.
In Gay New York, Chauncey explains that administrators of the New York City penitentiary on Welfare Island had a well-established policy of segregation by the 1910s. He argues that because of "the central position of the fairy in dominant cultural conceptions of homosexuality" penitentiary administrators only classified as "homosexual" and segregated prisoners "who exhibited the typical markers of effeminacy" (Chauncey 1994: 91). These prisoners were informally allowed to have long hair, wear dresses, and use homemade makeup, but they were also completely isolated from the general population. Segregated fairies were placed in the South Annex, the most isolated and secure...