Breaking out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment
![handle is hein.journals/saclr44 and id is 1241 raw text is: BREAKING OUT OF THE PRISON HIERARCHY:
TRANSGENDER PRISONERS, RAPE, AND THE
EIGHTH AMENDMENT
Christine Peek*
I. INTRODUCTION
On December 17, 2002, Kelly McAllister filed a claim
against Sacramento County, its district attorney, and the
sheriffs department, alleging threats and slurs based on her
transgenderi status, battery, and an assault that culminated
in rape.2 McAllister is a five-foot seven-inch, 135-pound pre-
operative transsexual in her mid-thirties, who has lived as a
woman for several years.' She was arrested in connection
* Managing Editor, Santa Clara Law Review, Volume 44. J.D. Candidate,
Santa Clara University School of Law; B.A., San Jose State University.
1. This comment will use the word transgender as an umbrella term en-
compassing a variety of individuals, including transsexuals, transvestites,
cross-dressers, drag queens and drag kings, butch and femme lesbians, feminine
gay men, intersexed people, bigendered people, and others who... 'challenge
the boundaries of sex and gender.' Shannon Minter, Do Transsexuals Dream of
Gay Rights? Getting Real About Transgender Inclusion in the Gay Rights
Movement, 17 N.Y.L. SCH. J. HUM. RTS. 589, 589-90 n.4 (2000) (quoting LESLIE
FEINBERG, TRANSGENDER WARRIORS: MAKING HISTORY FROM JOAN OF ARC TO
RUPAUL x (1996)). The term transsexual will refer more specifically to per-
sons who believe they belong to, want to be, and function as the 'other' sex.
JASON CROMWELL, TRANSMEN & FTMS 20-21 (1999). In general, the word sex
will be used to refer to biology or anatomy, and gender will refer to the collec-
tion of characteristics that are culturally associated with maleness or female-
ness. Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER,
POLICY INST. OF THE NAT'L GAY & LESBIAN TASK FORCE & NAT'L CTR. FOR
LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND
POLICYMAKERS 1, 2 (2000), available at http://www.ngltf.org/library/index.cfm.
Finally, '[g]ender identity' refers to a person's internal, deeply felt sense of be-
ing either male or female or something other or in between. Id. at 3.
2. See Press Release, National Transgender Advocacy Coalition, Trans-
gendered Woman Raped in Sacramento Jail Files Claim (Dec. 18, 2002), avail-
able at http://www.ntac.org/pr/release.asp?did=59.
3. See id.
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Breaking out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment
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