All things considered, Ella Mae Vail said her stay at the Weber County jail was probably the best interaction she’s had with law enforcement. Most of the correctional officers used her preferred name and pronouns and seemed to care about her well-being.
But for all the good, there was some bad.
Like how Vail, a transgender woman, was so scared of being housed among men in the general jail population that she hurt herself to be placed in a mental health ward.
Or how before she was assigned to the mental health ward, male inmates would come to the window of her cell and say obscene things to her or catcall, she said. Or how the men housed in the mental health ward had a line of sight into the communal shower and watched her.
The jailers "did their best, but there were really some failings,” Vail said.
Vail’s situation highlights how Utah jails are being forced to confront changing societal norms regarding diversity and inclusivity, and parallels the arrest last July of Lesley Ann Shaw — who identifies as transgender and agender and uses the pronouns they and them.
Shaw was arrested during a protest at the headquarters of the Management and Training Center, which operates detention centers for undocumented immigrants. Shaw said they were repeatedly misgendered in Davis County jail and underwent a so-called breast sweep despite not having breasts. They were also forced to accept a bra.
A Salt Lake Tribune analysis of jail policies at the time found that a transgender inmate’s housing situation varied depending on where they were booked.
And had Vail been arrested in Salt Lake County, she likely would have been housed with women, and some of the concerns she had about showering would have been erased.
“I don’t feel threatened when I’m showering next to women,” she said, “because I’m a woman.”
But Lt. Joshua Marigoni, the Weber County jail spokesman, said jailers must also consider the safety of the other female inmates.
He said that while his jail hasn’t crafted a formal policy on transgender inmates, the housing decision is typically made based on the gender designation on their state-issued ID or their anatomy, specifically whether they’ve had sex reassignment surgery, commonly called bottom surgery.
He also said that the jail took steps to make sure Vail felt safe and made sure she was never outside her cell alone with male inmates. Marigoni said he couldn’t confirm that men in the mental health ward watched Vail shower, but said based on the shower’s location, it’s possible.
Regardless, the situation had Vail’s attorney, Jonathan Jemming, wondering: If jail officials are making an effort to sequester Vail within a male population, why not do the same for her in a female population, where she would feel more comfortable and face fewer risks?
He also said having correctional officers present when Vail was around men didn’t guarantee she would be safe.
Vail’s stint in the Weber County jail began March 2, when she and her partner Svetlana Lowrey were passing through Utah as they relocated to Virginia.
(Courtesy of Weber County jail) Ella Mae Vail
It was early and overcast. Vail’s girlfriend slept in the back seat as the two traveled a nondescript section of Interstate 84, just outside Riverdale in Weber County.
Vail got behind a slow semi-truck and signaled to pass it. While she said the light blinked a few times, a Utah Highway Patrol trooper pulled her over for not signaling for the required two seconds.
As Trooper Jared Hayes talked to Vail, he smelled marijuana inside the car, he later wrote in a probable cause statement. When he questioned Vail about it, she said she had smoked six or seven hours earlier, when she was still in Oregon, where recreational marijuana is legal. Hayes found a pipe, marijuana and rolling papers in the car.
He arrested Vail on suspicion of drug possession and driving with a measurable amount of marijuana in her system, a less serious DUI offense. She was booked into jail according to her anatomy and the information on her driver’s license, which identifies her as a man.
Dash camera video of Vail’s arrest, released to The Tribune through an open-records request, shows she was worried about her well-being early on.
On the drive to the jail, Vail cleared her throat and asked Hayes, “Am I going to be safe in the jail? Do you have transgender people ever in there?”
Hayes responded before she finished the question, “Yeah, you’ll be safe.” It’s the jail’s job to keep her safe, he said, although he added that he wasn’t sure how they would house Vail among the other inmates if she couldn’t make bail.
Vail was released from custody March 12. Data shows fears about Vail’s safety while incarcerated were based in the experiences of other transgender inmates.
Statistics from the Department of Justice from 2011-12 indicate that about 40 percent of transgender inmates in state or federal prison have reported some kind of sexual victimization. An estimated 27 percent of transgender inmates in local jails reported sexual abuse.
Those numbers are considerably higher than the estimates for inmates in general. In that same time period, the DOJ said 4 percent of state and federal inmates and just more than 3 percent of local jail inmates reported sexual victimization.
As early as 1994 the U.S. Supreme Court recognized the dangers of housing a transgender woman among male inmates.
In Farmer v. Brennan, justices ruled in favor of Dee Farmer, a transgender woman who had been housed among men and repeatedly sexually abused because of the jail’s “deliberate indifference” to the jeopardy Farmer was in, violating her Eighth Amendment rights to not undergo cruel and unusual punishment.
The 2003 Prison Rape Elimination Act, passed unanimously by Congress, recognized the risk and called for correctional facilities to consider how to house transgender inmates on a “case-by-case basis,” meaning jailers were to weigh factors such as the inmate’s concerns about safety.
While many jails say they house inmates this way, Shawn Thomas Meerkamper, senior staff attorney at the California-based Transgender Law Center, said there’s a difference between policy and practice.
“Unfortunately, in the vast majority of jurisdictions, they have a case-by-case basis on paper, and then it just so happens in every single case trans people get assigned based on their genitals and not based on their gender identity,” said Meerkamper, who uses the gender neutral pronouns they and them.
In May 2018, the U.S. Federal Bureau of Prisons revised its guidelines, shifting considerations to focus more on the sex a person was assigned at birth than their gender identity. Not all transgender people want or will ever have gender reassignment surgery as part of their transition.
“At a very basic level, these systems do not recognize trans women as women, for example,” Meerkamper said.
While Meerkamper said transgender people have been raising safety concerns for “longer than decades,” jails have only started to respond. Meerkamper said best practice would be that jails and prisons house inmates based on that inmate’s gender identity, if that is that inmate’s preference.
Marigoni, with Weber County, said his jail is working on a formal policy.
Right now, Marigoni said inmates are booked according to the designation on their state ID. He said jailers take into account an inmate’s safety concerns, and will house them accordingly, such as in a single cell, like they did for Vail.
“Basically our big thing is we don’t want to treat them in any way that they’re punished because of the process they’re going through,” Marigoni said.
It’s a hard line to walk, as jails and prisons are holding facilities that separate inmates by gender and a number of other factors to keep people safe. Thus, it can be difficult for jails to accommodate individuals who don’t fit within the gender binary.
But sending a transgender inmate to a solitary cell can seem like punishment, Meerkamper said, exactly what Marigoni said his jail staff strives not to do.
The issues could also become more complicated after a 2018 court order paved the way for Utahns to lose the “male” or “female” designation on their driver license and birth certificates in exchange for a gender neutral “X.”
Vail ultimately spent 10 days in jail before she appeared in court on March 11 and Riverdale Justice Court Judge Reuben J. Renstrom lowered her bail from $2,200 cash to $200 cash.
She posted bond, and Vail and Lowery continued on their move to Virginia. Renstrom hasn’t waived Vail’s scheduled court appearance in April, but Jemming said he plans to ask for that change so Vail doesn’t have to find a way back west.
The day after Vail was released, she and Lowery stopped at a gas station along the road. Vail went inside, and Lowrey reflected on the couple’s unexpected stay in Utah.
Lowrey said she was worried sick for Vail. While her partner was in custody, Lowrey passed time sitting in her car. She spent nights there, too, or on strangers’ couches. She said her mind churned over anxious thoughts.
Turns out, she said, Vail was treated better than they expected.
And yet.
“At the end of the day,” Lowery said, “What happened happened. We did what we did, but it’s so messed up in this country that we get literally punished more than anybody else does. Anybody else comes through [jail] ... they get put with their people, and for us, we get a higher punishment.”
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