A Black Trans Woman Felon Got Your Prison Rape Outlawed

You want an outlaw hero? Here's your outlaw hero.

Picture by Matt Rhodes, from Dee Farmer’s bio at the non-profit she leads, Fight4Justice.

Thirty years ago yesterday, no court had ever held that fostering or ignoring prison rape was illegal or that prison officials and guards had any duty to prevent or punish rape. “Prisoners are dangerous (that’s why many are confined in the first place). Guards have no control over the temperament of the prisoners they supervise. […] Some level of sexual aggression among them is inevitable,” said the Seventh Circuit in 1992, expressing the then-common rationale for denying prisoners both affirmative protection and post-facto relief.

Thirty years ago today, June 6, 1994, the Supreme Court of the United States released the opinion of Justice David Souter (in part quoting an earlier case) declaring:

Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’

Both of those quotes come from the appeals of a remarkable case filed by a lone, Black trans woman, advocating for herself, seeking nothing more than justice and safety during her time behind bars. She was the first trans litigant to have her interests heard by the Supreme Court, and she won an important concession from the system that controlled her. A unanimous concession, no less. The protections that followed are not nearly enough, and prison rape persists, but we have the little protection we do because of Dee Farmer.

Farmer was born and raised in and around Baltimore. She trended toward the flamboyant and the feminine from an early age, which led to a childhood much like an empathetic person might expect: full of harassment and abuse. Her uncle called her faggot and refused to let her ride in his car. Nothing was easy. Though she describes herself as a “teacher’s pet” in her early years, in high school her peers were violent. Under constant threat, Farmer learned to become violent, too. It was in her nature to resist in the face of mistreatment.

At age 16 Farmer was kicked out of her home when her mother objected to Farmer and her trans friends playing with makeup and perfume in her mother’s basement. Her mother had taken a dislike to those friends before, but on that day decided that she no longer wished to support or care for a child whose queer behavior she could neither understand nor accept. Farmer attempted to live with her father, but ultimately he “put [her] out in the street,” for much the same reasons her mother had rejected her.

Employment prospects for Black, trans high school dropouts weren’t overwhelming in the 1980s, and Farmer turned to economic crimes. Bamby Salcedo, another survivor of prison rape, said of trans people in that era: “Back in the ’80s there weren’t any services related to us. So anything we needed we got from the street, from our sisters. Participating in the street economy was the only way for us to live and survive.”

Which, fair, but also Farmer hadn’t limited herself to the minimal crimes of Salcedo. Circumstances may have pushed her to commit fraud and theft to survive, but once there she wasn’t stopping at Anatole France’s proverbial loaf of bread.

In the mid-’80s she was convicted of credit card fraud, and as a 19-year-old non-violent offender she was sentenced to 20 years in federal prison. If that sounds harsh, that’s because it was, even by the standards of the day. Looking back, it’s hard to imagine that the sentence wasn’t constructed to be maximally punitive more because of her gender than her theft.

As a trans teenager entering the federal prison system she was placed in solitary confinement for the first six months. She quickly developed a reputation as a problem prisoner, but the problems were invariably expressions of gender or transness. Except once. As a “holiday prank” she ordered flowers and fruit baskets delivered to the prison where she stayed. If you’ve heard her speak, you know that sounds exactly like Farmer: She broke the law and broke prison regulations and didn’t care much for the economic harm to the company making the deliveries, but it seems she also thought it would brighten the day of prisoners and guards alike. Splashing some color on the prison walls could hardly be more consistent with who she was. “She’s a character,” said one of her lawyers, Michael Gonring. “A classic.”

The prison used the delivery and her penchant for taking smuggled hormones and wearing her jumpsuit off one shoulder as excuses to transfer Farmer to a federal prison in Terre Haute, Indiana, designed to house much more violent prisoners. Within 10 days she had been raped with a knife to her throat. Her obvious injuries were noted by the guards, who did nothing.

There are many, sometimes conflicting, accounts of exactly what happened in the prison. Most of this can be explained by indiscriminate timelines, with the long history of many rapes Farmer endured in prison being conflated with the first one that was the subject of her famous lawsuit — but it’s hard to know precisely what is true. In some ways, it may be a relief not to know with too much detail just what Farmer suffered.

The case that eventually came before the Supreme Court was filed in 1989 from a Wisconsin prison to which Farmer had been transferred after Terre Haute. That case did not focus on well-established reports to case workers after the fact, or even on the retaliation she faced for suing prison officials (there would be other suits on those issues later). Instead it focused on the actions that Farmer alleged led to her rape: the maintenance of a violent prison culture with a reputation for rape and the transfer of a trans woman into a prison with that reputation when officials knew or should have known that Farmer would face an unacceptable risk.

Asking to be heard by the Supreme Court might seem audacious of a prisoner whose case was dismissed by the trial court and not heard by the court of appeal. But for Farmer that wasn’t the issue. She was wrestling with flashbacks and largely held in solitary, but prisons are forced to be relatively generous with access to the law library. Reading every case remotely relevant to her situation was how she escaped her cell, and filing her case and her appeals was a natural extension of the resistance she showed in high school where in the face of violence and harassment she didn’t run to a teacher, she fought back herself.

The case seemed unlikely to win review. Her initial complaint was drafted in crayon for the local courts, and it seems she received no formal legal help in filing her appeal or her application for Supreme Court review.

After the application was accepted, lawyers finally took interest. She was represented at oral argument by Elizabeth Alexander of the National Prison Project. At the Supreme Court, Alexander and Farmer fought for and won a standard which allowed officials to be held liable for “deliberate indifference.” Knowing that an inmate displayed characteristics associated with a high risk of rape would, in the future, be enough for a prisoner to demand relief under the Eighth Amendment where in the past the standard had essentially been subjective knowledge of an actual plan to rape someone.

While the Supreme Court appeal was victorious and remanded the case back to the trial court for a new hearing on the merits, even the standard for which she had argued proved ineffective in practice, and her case was ultimately lost. However she did win something else: notice. Lawyers began talking and arguing in law journals about prison rape, a topic that had received little previous attention, and litigation strategies that could succeed where Farmer failed.

Officials found this frightening. They knew prison rape to be rampant, and they feared that eventually there might be precedent set that every prisoner is at intolerable risk. After much dithering, lawmakers ultimately decided that they could preempt the courts and get good press doing it by passing legislation against prison rape. It took more than nine years for the Prison Rape Elimination Act to make its way through Congress and gain the signature of President Shrub in 2003. It took another eight and a half years for the Department of Justice to distribute its 2012 regulations establishing an expected standard of policies and procedures to prevent the rape of inmates, cis and trans, women, men and the rest of us.

Just recently, I wrote at Pervert Justice about the murder and probable sexual assault of Sofia Fernández in an Argentine prison. In that article I said,

The stories of the violation of the marginalized serve to protect the majority far more than they will ever protect the marginalized ourselves.

And so it is with Dee Farmer. She lost her case, was raped repeatedly over many years, and contracted HIV in prison. The stories of retaliation against her are many (even if some are exaggerated), including intentionally housing her with a known prison rapist who had been barred from having other roommates because of his history of sexual violence. Even so, fostering, ignoring, or tolerating the rape of any prisoner is now illegal because a Black outcast, a reject from our gendered system who lost home and family, learned that she had no one to rely on but herself.

Dee Farmer won increased (but still too little!) safety for every person in our society that spends so much as a night in jail because her uncle called her a faggot. It was because her mother disowned her and her father hit her. It was because her adolescent peers tormented her.

Someone else might have relied on the system, reporting rape, pleading for help, but never challenging the right of the system to make the decision as to who would and wouldn’t receive protection, who did and did not deserve to be raped. Others might have silenced themselves, fearing the retaliation which Farmer suffered and which others had suffered before.

But it was because of the way that society inflicted such extreme marginalization upon Farmer, violence, mockery, and ultimately solitary confinement, that Farmer both learned to fight back, and concluded that she didn’t have anything left worth losing. Farmer’s story is yet another in which the people who rise up to protect us all do so precisely because of their oppression. The marginalization, the misogynoir, the cissexism, and, yes, ultimately the rape of Dee Farmer made it inevitable that she would be the one to win protection for the protester housed overnight or the legislator with an alcohol problem caught driving.

Our society needs its Dee Farmers, because when we win rights and protections for our most despised, and make no mistake Farmer was despised by far more than just her family, only then do we win them for all.