The Justice Department has told PREA inspectors to stop applying standards specifically intended to protect transgender, intersex and gender-nonconforming people from sexual assault in prisons, jails and other detention facilities, according to an internal memo obtained by NPR.
The memo states that DOJ is rewriting federal standards tied to the 2003 Prison Rape Elimination Act (PREA) to conform with the administration’s executive order on gender ideology extremism, which affirms a two-sex framework. While those regulatory changes are in progress, detention facilities undergoing PREA audits will not be evaluated against the standards aimed at keeping LGBTQ and intersex people safer. The guidance covers federal and state prisons, local jails, juvenile detention centers and immigration detention facilities.
PREA auditors are certified by DOJ but are typically hired by correctional agencies or individual facilities. The memo directs auditors to mark the LGBTQ- and intersex-specific standards as “not applicable” during audits, even though the existing rules technically remain in force until they are formally changed through notice-and-comment rulemaking. DOJ retains the ability to decertify auditors but is not their direct employer.
Advocates warn the change will raise risks for a group already shown to face heightened vulnerability behind bars. Research and reports document elevated rates of sexual victimization: a 2015 survey by Black and Pink found LGBTQ prisoners were more than six times as likely to be sexually assaulted as the general prison population, and the Bureau of Justice Statistics reported 36,264 allegations of sexual victimization in correctional facilities in 2020, with 2,351 of those allegations substantiated.
The memo also tells auditors not to review whether facilities house transgender people according to their gender identity on a case-by-case basis, and it instructs them not to consider whether sexual assaults were motivated by gender-identity bias. Linda McFarlane, executive director of Just Detention International, warned the rollback will immediately put people in danger and said making facilities less safe for the most vulnerable makes them less safe for everyone.
This memorandum is part of a series of policy moves by the Trump administration that reduce protections for transgender people. In recent weeks, the administration reversed policies that allowed incarcerated trans women to be housed according to gender identity, issued an order banning transgender troops from serving openly in the military, and restricted gender-affirming care for minors; several of those actions have prompted legal challenges.
Earlier this year the DOJ also cut funding to victim-advocacy programs, including the National PREA Resource Center, which trains auditors, tracks investigations and provides resources to survivors. Some grants were restored after media attention.
The National Association of PREA Coordinators said that until DOJ finalizes new PREA regulations, the current standards remain in effect. However, the association noted the memo effectively gives state and local agencies the option to either follow the existing regulation or ignore it, and urged systems to continue protecting vulnerable individuals regardless of whether they adopt a binary or spectrum-based approach to sex and gender.
Auditors say the memo creates confusion. Kenneth L. James, a PREA auditor who works in multiple states, told NPR the instructions make auditing both more confusing and more difficult, could force changes to auditor training, and may lead to inaccurate compliance calculations. He added that because PREA has been in place for more than two decades and sexual abuse in custody is well documented, he hopes facilities will continue practices that protect incarcerated people.