[Pnews] Discrimination in Trans Parole Hearings

Prisoner News ppnews at freedomarchives.org
Wed Apr 6 09:58:51 EDT 2016


    Discrimination in Parole Hearings Keeps Trans Prisoners Behind Bars,
    Advocates Say

Tuesday, 05 April 2016 - By Victoria Law 

Rickie Blue-Sky will appear before the California parole board on 
Wednesday. He has spent the past 32 years in prison for an act that he 
has always asserted he did not do. This will be his fifth parole 
hearing. He is now 70 years old.

In 2013, Blue-Sky appeared before the parole board with numerous 
certificates showing the programs that he had completed as well as 31 
pages of support letters. But those accomplishments mattered less than 
the crime he had been accused of, his continued claim of innocence and, 
as a trans man, his gender identity.

At that hearing, Michael Abacherli, the deputy district attorney of the 
San Bernardino District Attorney's Office, voiced his objection to 
Blue-Sky's release. The objection by itself is not unusual, but 
Abacherli's argument was. Abacherli stated that he considered Blue-Sky 
to be a danger to society, tying his assertion of innocence with his 
gender identity as proof that Blue-Sky posed a threat to public safety.

"Blue-Sky, for whatever reason, denies constantly that she is a woman or 
a female," Abacherli said. "It becomes an issue when the denial is so 
strong that a person doesn't want to be called a female at all because 
regardless of what you may represent to others, if you're a male or a 
female, that is what you are. Deny it or not. That is what you are. But 
that strong denial, that refusal to accept what she is, a female, is 
equivalent to the refusal to accept that she was guilty of a heinous crime."

The California Supreme Court has ruled that, after a long period of 
time, factors that cannot be changed -- such as the crime and conviction 
-- should no longer be used against a person's application for parole, 
especially when the person has demonstrated positive changes behind 
bars. But, despite Blue-Sky's ongoing participation in prison programs 
and his founding of several groups to address concerns of Native 
American as well as transgender, gender-nonconforming and two-spirit 
people, the parole board denied his request for parole, stating, "You 
have failed to demonstrate insight into your propensity to commit such a 
violent act of aggression and even murder."

In its decision, the board did not mention Blue-Sky's gender identity or 
address the statements made by the deputy district attorney, who in 
effect argued that one's gender identity constitutes a reason to deny 
parole. Do these comments and the board's failure to interrupt such 
remarks indicate a more systemic problem of transphobia and trans 
discrimination in the parole process?

*Thirty-Two Years of Building Bonds and Encouraging Hope*

In 1983, Rickie Blue-Sky, a 37-year-old member of the Salish tribe from 
northern Idaho, was arrested in San Bernardino, California, for 
allegedly killing and dismembering his girlfriend. His arrest made news 
-- in large part because Blue-Sky was a trans man. Local newspaper 
headlines covered the arrest, preliminary hearings and the 1984 trial, 
sensationalizing Blue-Sky's gender identity. One headline read, 
"Woman-man's court date delayed." Others played up Blue-Sky's gender 
identity in articles with statements such as, "At that point, the case 
took a bizarre turn when police discovered the suspect actually is a 
woman." Every article from that time period misgenders Blue-Sky.

In a phone call from prison, Blue-Sky told Truthout that his trial 
attorney had been bombarded with requests from the media. "A murder 
these days is not news," he recalled his attorney repeating to him. "But 
a woman who poses as a man who commits murder is news."

In November 1984, Blue-Sky was convicted, sentenced to 27 years to life 
and sent to the California Institution for Women. When he arrived, 
prison officials debated where to place him.

"They were trying to imply that I was a deviant," Blue-Sky recalled. 
"They were trying to ascertain whether or not the women would be safe." 
What saved him from being placed in administrative segregation, a form 
of isolation in which he would have little to no contact with other 
people, was his walk to the intake office. "Quite a few people said 
hello to me because they knew me from the county jail. The sergeant 
noted that no one seemed afraid of me."

During his 32 years in prison, Blue-Sky has never received a write-up 
for a physical altercation or been sent to solitary confinement. This is 
particularly noteworthy given that, in jails and prisons nationwide, 
trans and gender-nonconforming people are routinely placed in some form 
of isolation. Some, particularly trans women in men's prisons, are 
placed in protective custody 
where they are isolated from other people, ostensibly for their own 
safety. Other trans and gender-nonconforming people are regularly 
targeted for harassment, humiliation and write-ups that send them to 

Krystal Shelley, who goes by Krys, is a gender-nonconforming person who 
spent 12 years in California's women's prisons. In an essay for the 
anthology /Captive Genders 
Shelley recalls being attacked and pepper-sprayed by prison guards, and 
then sent to segregation simply for trying to walk over to another 
person. "I turned to see three cans of pepper spray and eighteen 
correctional officers set to attack me," Shelley wrote. "They saw me as 
aggressive and so they used extra force." Shelley spent two months in 
isolation before being found guilty; two days later, officers returned 
to say that Shelley was /not/ guilty, before releasing Shelley from 

In prison, Shelley joined the Two-Spirit Circle, a group that Blue-Sky 
had started for trans, gender-nonconforming and two-spirit people. 
There, Shelley found both a mentor in Blue-Sky and community among other 
members. "It was about building a bond between people," Shelley told 
Truthout. "We were building a masculine-bond with other female-born 
people so we can have understanding." That sense of community was 
particularly important in prison, where Shelley and other 
masculine-identified people were often subject to harassment and abuse 
by officers.

At the same time, Shelley also credits Blue-Sky with helping Shelley 
cope with the constant harassment from male officers. Instead of arguing 
when confronted with officers' insults, Shelley would instead seek out 
Blue-Sky. "If I was getting into an argument with someone, I'd head to 
the chapel [where Blue-Sky worked]," Shelley recalled. "If you could get 
to Blue-Sky, you can get whatever you need off your chest.... To have 
someone who relates to me and can understand me, Blue-Sky was extra good 
for me.... In many ways, he helped with my maturity," said Shelley, who 
had been incarcerated since age 17 and was released four years ago.

"Lynn," who is still on parole and asked that her real name not be used, 
spent 17 years in prison. By the time she met him, Blue-Sky had already 
spent nearly two decades in prison. "He had been there for so long," she 
told Truthout, "but that didn't harden him. He gave me the gift of hope, 
that you don't lose who you are [even after being in prison for so long]."

As a cisgender woman who is not Native American, Lynn never participated 
in any of Blue-Sky's programs. But she recalled that, as she prepared 
for her parole hearing, Blue-Sky put together a list of programs that 
would help her, including an eight-month class that he facilitated. 
Although Lynn was reluctant to enroll in such a lengthy class, Blue-Sky 
visited her to demonstrate what she would have learned. "He took the 
time to show me how to ground myself and put my thoughts in one thing," 
she said. "He took the time to show me what it was I'd be learning in 
the class even though I didn't commit to it. I almost cried."

When she appeared before the parole board, Lynn reiterated that she did 
not commit the crime for which she was convicted. She reiterated that 
her abusive boyfriend, with whom she lived, had killed someone in their 
house. "But I took responsibility for leaving the person in the house, 
knowing that my boyfriend was volatile, abusive, jealous and on drugs."

Lynn was granted parole. "The DA congratulated me on my growth and 
insight into what I did wrong," she recalled. "He used that word a lot 
-- insight. They want you to take responsibility for something."

Blue-Sky has always maintained his innocence, going so far as to fire a 
parole attorney who attempted to pressure him into admitting guilt so as 
to increase his chances of parole. He notes that, since 1984, he has 
participated in prison programs and has started several programs for 
Native Americans and trans people. But will any of that matter when he 
appears before the parole board once again?

*What Does Gender Identity Have to Do With Parole?*

"It's extremely hard to be granted parole while claiming innocence," 
said Kelly Lou Densmore, the staff attorney at TGI Justice Project 
<http://www.tgijp.org/>, an advocacy organization supporting trans, 
gender-nonconforming and intersex people in the criminal legal system. 
But, she added, "There's no connection between insight into the crime 
and gender identity. These are two completely separate issues." Even for 
people who are guilty of the crime for which they were convicted, 
"gender identity has nothing to do with the crime."

Furthermore, Densmore emphasized that being trans is "not a refusal to 
accept his gender identity. [Blue-Sky] is not in denial of his gender 

Densmore filed a complaint with the San Bernardino District Attorney's 
Office on behalf of TGI Justice Project, asking that Abacherli be 
disciplined for such comments and that the district attorney's office 
refrain from making such comments at the upcoming parole hearing. The 
district attorney's office has not responded to Truthout's request for 

Densmore noted that parole commissioners have the ability to interrupt 
or stop remarks that are considered irrelevant. During Blue-Sky's 2013 
hearing, the commissioners did not take this action. "The fact that they 
didn't interrupt the DA or specifically say, 'We're not denying you 
because of your gender identity,' means that they did probably consider 
it," she said.

TGI Justice Project is now tracking instances of trans discrimination 
during parole hearings, but it's too soon to tell how frequently 
transphobia plays a role in parole determinations. "There's so little 
support for imprisoned trans people across the country," Densmore said. 
"That's why we don't have information about this."

While no data has been collected on the prevalence of discrimination 
against trans, gender-nonconforming and two-spirit people in the parole 
process, anecdotal evidence suggests that it is present. A 2015 survey 
of nearly 1,200 LGBTQ people in prison 
conducted by Black & Pink, a network that supports LGBTQ people behind 
bars, found that nearly 60 percent of two-spirit people and 50 percent 
of nonbinary-gender people felt discriminated against during parole 

In 2015, two years after Blue-Sky's parole hearing, another trans man 
appeared before the California parole board. Like Blue-Sky, he brought 
numerous letters of support, including letters of acceptance to 
transitional housing and violence prevention programs. He had remained 
free of any violations of prison rules; his last write-up had been 10 
years earlier. At the hearing, he took responsibility for his crime and 
expressed remorse for his actions.

While the Los Angeles deputy district attorney acknowledged that the 
prison's psychiatric evaluation classified the person as having a 
"low-risk of violence," the deputy district attorney nonetheless opposed 
his release because of his in-prison hormone treatments. "Going through 
this transgender process leaves me with some questions as just how the 
inmate is going to be affording the remainder of her treatment if 
released," the deputy district attorney said. "And I want to emphasize 
which the psychologist also mentioned that the stressor -- one of the 
stressors of her life on the outside will be a transgender."

Densmore noted that hormone therapy is covered under Medi-Cal, adding, 
"You'd never argue that this person has diabetes and therefore diabetes 
is a risk factor."

Transphobia in prison practices can also affect people's chances of 
parole. Mik Kinkead is the director of the Prisoner Justice Project at 
the Sylvia Rivera Law Project <http://srlp.org/>, which works with trans 
and gender-nonconforming people imprisoned throughout New York State. In 
early 2015, the organization began offering parole support and assistance.

Kinkead told Truthout about one client, a trans woman, who was placed in 
a men's prison. She was sexually assaulted and placed in protective 
custody, where she was unable to access the prison's programs. The 
following year, she appeared before the parole board, bringing numerous 
letters of support. According to the hearing transcript, the parole 
board commissioners noted the woman's lack of participation in programs. 
They also expressed confusion because the letters used the woman's 
chosen name rather than the legal name under which she was incarcerated. 
Ultimately, the parole board denied her application because of her lack 
of program participation.

The next year, the woman was transferred to a minimum-security prison. 
There, she was allowed out of isolation, and was able to access various 
programs. She also became a GED tutor. But these accomplishments did not 
impress the parole board when she appeared before them the following 
year; they denied her application again, this time stating that she had 
not shown a significant change in her behavior.

Another of Kinkead's clients, also a trans woman, was sent to Attica, a 
men's prison notorious for violence 
Fearing sexual violence, she asked to be placed in protective custody. 
One year later, she asked to be allowed into general population. The 
prison refused. She remained in isolation, where she had no access to 
programs. When she appeared before the parole board, she too was denied 
because of her lack of program participation.

"How am I supposed to access programs if I'm in protective custody?" she 
asked. Board commissioners told her that this was outside of their purview.

"There's a movement of prisons and parole boards merging together," said 
Kinkead, noting that New York's parole board is part of its overall 
corrections system <https://www.parole.ny.gov/introboard.html>. "But 
they don't communicate. So in this instance, the board could have asked 
that she be transferred to another prison where she could safely be out 
of protective custody and be able to access programs. Instead, they told 
her it wasn't in their purview."

*Blue-Sky's Upcoming Parole Hearing*

"I'm cautiously optimistic," Blue-Sky told Truthout, days before his 
parole hearing. As he and Densmore both noted, and as the parole board 
acknowledged in the 2013 hearing, factors that cannot be changed -- such 
as the conviction -- should no longer be held against a person during a 
parole hearing, especially if the person has a history of positive 
programming and actions while imprisoned.

Blue-Sky has a long history of positive programming. Shortly after 
entering prison, he helped start a Native American religious program. At 
Valley State Prison, he began the Two-Spirit Wellness Circle through the 
Native American chaplaincy to help lesbian and trans people connect with 
their spiritual identities and support each other. Following Valley 
State's conversion to a men's prison 
he and others from the Wellness Circle began a trans support group at 
the Central California Women's Facility.

"My mother told me, 'There's a mission for you,'" he said. "I found it 
in prison. My mission is to help others find their spiritual identity." 
He plans to continue that mission outside of prison as well. He hopes to 
use his paralegal certification to help both TGI Justice Project and the 
California Coalition for Women Prisoners continue fighting for the 
rights of trans and gender-nonconforming people in prison.

"Once upon a time, I was pretty arrogant," he reflected in the seconds 
before his phone call was cut off. "Helping people has taught me and 
I've advanced in my humility. That's the main thing."

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org

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