An internal Justice Department memo obtained by NPR directs prison and jail auditors to stop applying certain standards designed to protect transgender, intersex and gender‑nonconforming people from sexual violence. The guidance says DOJ is revising federal rules under the 2003 Prison Rape Elimination Act (PREA) to align with the administration’s January executive order on so‑called ‘gender ideology extremism,’ which asserts that U.S. policy recognizes only two sexes. While that regulatory rewrite is pending, auditors are instructed to mark some PREA standards as ‘not applicable’ during inspections — even though those standards remain in force until formally changed.
PREA audits are a key oversight tool: certified auditors visit facilities, interview staff and people in custody, tour housing areas and review policies to determine whether prisons, jails, juvenile centers and immigration detention facilities comply with requirements meant to prevent rape, harassment and retaliation. The memo tells auditors they should no longer evaluate whether people should be housed according to gender identity on a case‑by‑case basis, and they should not consider whether sexual assaults were motivated by bias against gender identity.
Advocates say the change will increase risks for people already at high risk of abuse behind bars. Research and survivor reports indicate transgender and gender‑diverse people face much higher rates of sexual victimization in custody. A 2015 survey from advocacy group Black and Pink of more than 1,110 incarcerated respondents found LGBTQ people were over six times as likely to be sexually assaulted as the general prison population. Brenda Smith, who directs The Project on Addressing Prison Rape at American University Washington College of Law and served on the National Prison Rape Elimination Commission, said the memo ignores that reality.
Linda McFarlane, executive director of Just Detention International, warned the rollback ‘will immediately put people in danger,’ adding that when facilities are less safe for the most vulnerable, they become less safe for everyone.
The memo arrives amid other administration actions affecting transgender protections. Early in the administration, policies allowing incarcerated trans women to be housed consistent with their gender identity were reversed. The president has also issued orders limiting transgender military service and restricting gender‑affirming care for minors, both of which face legal challenges.
Critics point to related moves that have weakened PREA implementation: the Justice Department cut major funding last spring to crime‑victim advocacy programs, including the National PREA Resource Center, eliminating more than 360 grants before some funds were later reinstated after media scrutiny.
Federal statistics show the scope of the problem: in 2020 correctional administrators recorded 36,264 allegations of sexual victimization in adult facilities, with 2,351 substantiated. PREA’s standards were the product of years of bipartisan work in response to data and survivor accounts highlighting sexual violence behind bars.
DOJ did not respond to NPR’s request for comment on the memo. The National Association of PREA Coordinators said current PREA regulations remain legally unchanged because no new rule has been finalized, but it criticized the memo for effectively letting corrections agencies either follow the rules or ignore them and urged facilities to adopt policies that protect the most vulnerable. Some auditors say the guidance has created confusion. Kenneth L. James, a PREA auditor working across multiple states, told NPR the direction makes auditors’ jobs ‘more confusing and more difficult,’ though he hopes facilities will continue efforts to protect people in custody given PREA’s history and the known prevalence of abuse.