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Transgender immigrants face terrible conditions in detention. But that could change.

Immigration and Customs Enforcement Director Sarah Saldaña.
Immigration and Customs Enforcement Director Sarah Saldaña.
Chip Somodevilla/Getty Images
  1. US Immigration and Customs Enforcement on Monday announced a new guidance that will allow unauthorized transgender immigrants to be detained in facilities that match their gender identity.
  2. ICE will also require more training on how to question, identify, and talk with trans detainees, and set up local liaisons to make sure policies are being enforced. The agency will also set up a database that will track trans immigrants, and allow facilities to set up a special committee that would oversee the handling of trans individuals.
  3. The announcement follows criticism from LGBTQ advocates that ICE was exposing trans women in particular to sexual abuse by housing them with men. A Fusion analysis of a 2013 government report about sexual abuse in immigration detention found that even though trans immigrants made up only one of every 500 detainees, they accounted for one of every five cases of sexual assault that the Government Accountability Office was able to confirm.

Advocates said the guidance doesn't go far enough

A transgender immigrant from Honduras.

Transgender immigrants like this Honduran woman often want to come to the US for asylum. But those here often end up in detention — and at risk of sexual abuse.

John Moore/Getty Images

The big catch with the ICE guidance, LGBTQ and immigration advocates argue, is that it's possible lower-level officials won't actually enforce these policies. That's been their big complaint in the past — with policies that require ICE agents to conduct a risk assessment of trans individuals before deciding whether and how to detain them.

For example, in the guidance, the assessment of whether trans detainees should be housed in a facility that matches their gender identity will still be left to agents' discretion. That could, advocates warn, lead to a lot of bad calls, especially since there doesn't appear to be a mechanism to appeal decisions.

"We'd really like to see a stronger stance by ICE," Sharita Gruberg, a senior policy analyst focused on LGBTQ issues and immigration policy at the Center for American Progress, said. "We really need to make sure that, whenever possible, knowing how unsafe detention is for LGBT individuals, they should avoid unnecessary detention."

ICE officials argue that the establishment of liaisons will help resolve such problems, since these liaisons will be specifically tasked with making sure agents know how to and actually do properly handle trans detainees. Transgender care classification committees will also provide additional oversight at some facilities — but establishing these committees will be voluntary, because ICE doesn't expect all facilities to have enough trans detainees to warrant a special committee. (ICE knows of roughly 65 trans individuals out of the 30,000 detainees it typically houses.)

The guidance doesn't address whether people should be detained at all

LGBT immigrant rights protest

Saul Loeb/AFP via Getty Images

Some advocates would prefer if unauthorized immigrants weren't in detention in the first place. "It would be an improvement, certainly, to not be housed with men anymore, but it's still not ideal," Barbra Perez, a trans woman who was detained last year, told Fusion. "It's still detention."

But the guidance altogether avoided the question of whether trans individuals should be detained, instead focusing on individuals who are already in custody — although ICE noted that its new database will allow the agency to track who is detained and who is released.

Gruberg pointed out that, unlike the criminal justice system, detention isn't actually required. In fact, ICE policies recommend keeping someone out of detention if they may be at risk for sexual abuse. But documents obtained by the Center for American Progress suggest the policy is often unenforced: In two-thirds of cases in which an automatic risk assessment made no recommendation, agents chose to put the immigrant in detention — even though such circumstances should automatically warrant release, according to ICE.

The dodge on this issue has left some advocates ambivalent about its ultimate effect. "I'd say it's a great start," Gruberg said. "But there are some deeper problems that need to be addressed."