Gender-Diverse Individuals and the Carceral State: Conditions of Confinement and Sentencing Reform.

Gender-diverse individuals are over-incarcerated and experience uniquely harsh conditions in prisons in comparison to cisgender individuals. This paper proposes using sentencing law as a tool to minimize these disparities, specifically through the use of individualized proportionality, to arrive at a fit and just sentence for the criminalized person. Specific ways in which gender-diverse individuals experience suffering in prisons include: placement in prisons that do not accord with gender identity; increased risk of physical, emotional, and sexual violence; the use of strip searches; increased use of solitary confinement under the guise of safety; and insufficient culturally competent, gender-affirming healthcare. These conditions of confinement of gender-diverse individuals should be considered in sentencing to conclude whether a custodial sentence is appropriate, and if so, for what period of time. This paper looks at case law in which gender identity is acknowledged as a circumstance of the criminalized person, and more recent case law that considers how the conditions of confinement will uniquely affect the gender-diverse individual before the court. A more consistent, proactive assessment of these conditions is appropriate and may reduce the suffering experienced by gender-diverse individuals at the hands of the carceral state. [ABSTRACT FROM AUTHOR]