‘We the People’ needs to include incarcerated trans Ohioans. Right now it does not.

By Devin Perry, Ohio Justice & Policy Center

If freedom belongs to all Americans, then protection from sexual violence cannot end at the prison gate.

250 years ago, an experiment began: an audacious promise that liberty belonged to “We the People.” Since then, the United States of America has been wrestling with who those words include.

The patriotic premise that liberty belongs to ‘We the People’ is foundational to the American identity. We measure these strong ideals both by how we treat those who are visible and by how we treat the human beings society finds easiest to forget – incarcerated people. Our nation’s promises do not end at prison walls.

An ongoing federal lawsuit challenges the U.S. Department of Justice’s rollback of longstanding protections for transgender people under the Prison Rape Elimination Act (PREA). Beyond the legal questions lies a question much older than PREA itself: who gets to count as “We the People”?

Transgender people disproportionately experience family rejection, homelessness, criminalization, incarceration, and trafficking, often more than one at once. They are also among those at greatest risk of sexual violence while in custody. Whatever disagreements we may have about criminal justice or accountability, we do not sentence people in this country to rape or sexual assault.

Congress recognized that principle when it passed PREA in 2003. After years of research, the Department of Justice concluded that transgender and intersex incarcerated people faced an extraordinarily high risk of sexual victimization and adopted protections reducing that risk. Those protections were based not on politics, but on evidence and shared humanity.

Today, those transgender-specific protections are the subject of an ongoing federal lawsuit. The Department directed they no longer be enforced. Whatever the outcome of that litigation, the underlying facts have not changed. PREA exists because terrible things were already happening behind prison walls, and those documented risks have not disappeared.

For the Ohio Justice & Policy Center, these issues are not abstract. They go to the very heart of what justice demands of us as a nation. Whatever our broader disagreements, sexual violence should never become part of someone’s punishment.

In my work representing survivors of human trafficking at OJPC, I have seen what violence takes from people. As a queer person who has also experienced sexual assault, I know those wounds do not build character. They steal dignity and freedom. The survivors I serve became stronger not because of what happened to them, but in spite of it. That is why I cannot accept the idea that any person – regardless of identity, circumstance, or conviction – should face a heightened risk of sexual violence while in government custody.

One in three Ohioans has some type of criminal record. The people affected by these policies are not strangers. They are our coworkers, neighbors, and family members. Each passing day I fear for the people I already love, and for those I have not yet met but one day will. Maybe you already love them, too.

“We the People” has always been a promise, not a finished achievement. Every generation decides whether those words grow broader or narrower. As this nation marks its 250th year, we must remember that liberty is measured not by how loudly we proclaim it, but by whose humanity we choose to defend. If freedom truly belongs to all of us, then dignity must as well – in our laws, in our communities and behind prison walls.

May we forever chase the beautiful idea that freedom and justice belong to all. 🔥

Devin Perry is a staff attorney for the Ohio Justice & Policy Center.

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