TALES OF A FLOW STAYED BY NOTHING: MENSTRUATION IN IMMIGRATION DETENTION

When Fauziya Kassindja landed at New York’s JFK airport in 1994, she was seventeen, seeking asylum, and fleeing the brutal practice of female genital mutilation.1 She was also menstruating.2 Hours after her arrival, Fauziya was strip searched, forced to stand before a female officer “completely naked, soiled pad exposed, shamed beyond words.”3 She was then transferred to an off-site detention facility where she was stripsearched again. When Fauziya asked where she should place her soiled pad, the female guard responded: “I don’t know. Why don’t you eat it?”4 When Fauziya asked for a new pad, she was told she could ask for one the next morning.5 She was given absolutely nothing to stay her flow—not even toilet paper or paper towels. This was the beginning of Fauziya’s experience with immigration detention. She would remain there for sixteen months.6

migrant should be kicked out of the country-removal-is a civil one. 7 Migrants that are physically held by the government during the pendency of their removal hearings-such as Fauziya-are detained pursuant to civil, not criminal, law. 8 This is unusual. The only non-immigration examples of physical detention under civil law in the United States are imprisonment as a sanction for civil contempt 9 and involuntary commitment to a mental hospital. 10 Debtors' prisons, once a leading example of civil confinement, were abolished by federal law in 1883. 11 While it is unusual to physically detain persons through civil law means, the conditions under which migrants are held for their violations are familiar. Adult facilities look and feel exactly like the jails and prisons that hold criminal defendants and those convicted of crimes. Indeed, migrants are often civilly detained within existing jails and prisons alongside criminal justice detainees. 12 Even special-purpose immigration detention facilities are often designed by entities who build criminal detention sites, and 7 Mahler v. Eby, 264 U.S. 32, 39 (1924) ("It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment."). 9 See Int'l Union v. Bagwell, 512 U.S. 821, 828 (1994) ("The paradigmatic coercive, civil contempt sanction . . . involves confining a contemnor indefinitely until he complies with an affirmative command such as an order 'to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.'"). Courts that impose an imprisonment or confinement sanction for civil contempt send the contemnor to jail. See, e.g., Gerald Lebovits, Drafting New York Civil-Litigation Documents: Part XXXV-Contempt Motions Continued, N.Y. STATE BAR J., Sept. 2014, at 59. One could also conceive of the civil subpoena power-forcing the production of testimony under oath-as another form of civil detention, albeit one that does not involve confinement in a jail or prison. See, e.g., Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compulsory Process, 47 VAND. L. REV. 573, 594 (1994) (discussing, in particular, civil administrative subpoenas).
their forms mimic those of traditional carceral settings. 13 Common features include remote locations, secure perimeter fencing, locked doors, surveillance machinery, immobile furniture, and 24-hour lighting. 14 Beyond their physical features, immigration detention centers are run in a parallel fashion to institutions of criminal incarceration. 15 Most facilities have uniformed guards who enforce strict rules and count detainees several times a day. 16 Detainees frequently wear uniforms, are separated by their assessed level of risk to others, have limited time outdoors, enjoy limited mobility inside the detention facility, have limits on their personal possessions (e.g., number and type of books), experience time constraints on everything from showers to meals, and are not entitled to contact visits with their families. 17 A significant number of migrants are held in detention. In 2019, the United States maintained a daily average immigration detention population in excess of 50,000, with more than 500,000 individual migrants detained that year. 18 Females make up a 14 See, e.g., César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. REV. 1346REV. , 1349REV. , 1383REV. -89 (2014. 15 Id. 16 Id. 17 Id. The carceral conditions under which migrants are detained are "systematically and unnecessarily . . . inappropriate for immigration's noncriminal purposes." Anil Kalhan, Rethinking Immigration Detention, 110 COLUM. L. REV. SIDEBAR 42, 43 (2010); see also Schriro, supra note 12, at 2-3 (noting that carceral norms "impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population."). substantial portion of the detainee population. In 2019, an average of 7,700 noncitizen women were held in immigration detention facilities daily and another 4,500 migrant women were held in local jails awaiting transfer to immigration detention. 19 Most of these women menstruate. 20 Conditions for menstruating women in immigration custody today are not substantially different from those experienced by Fauziya Kassingja in 1994. A 2019 investigation by the state of Washington found that menstruating teens in immigration custody were given a single pad a day, 21 with no opportunity to shower or to get a change (reporting that ICE has been withholding data regarding the age of detainees). It should be noted that transgender men in immigration custody may also menstruate. See, e.g., Chloe Atkins, For Transgender Men, Pain of Menstruation is More Than Just Physical, NBC NEWS (Jan. 11, 2020), https://www.nbcnews.com/feature/nbc-out/transgender-men-pain-menstruation-more-just-physical-n1113961 [https://perma.cc/FFU3-TX7X] (discussing hurdles facing trans men who menstruate). By at least one account, the numbers of trans men in immigration custody are low. See Silvia Foster-Frau, Detention Unit in South Texas Holds Transgender Immigrants, NBCDFW (June 7, 2019), https://www.nbcdfw.com/news/local/detention-unit-in-south-texas-holds-transgender-immigrants/247623/ [https://perma.cc/JP9K-864N] (noting that while ICE held nearly 300 transgender detainees in first eight months of FY2019, "only a handful" were trans men). No matter how few or many, trans men who menstruate deserve accommodations for menstruation as well as women and girls.  EPIDEMIOLOGY 536, 539 (2012). The authors characterized cycle flows as light if blood flow was less than or of clothing after visibly bleeding through their clothes. 22 A 2009 Human Rights Watch report found that menstruating adult women in immigration custody face similar challenges: officials distributed only a set number of sanitary pads, women experienced difficulties obtaining more pads as needed, and women were forced to wear soiled clothing when their sanitary supplies proved inadequate for their flow. 23 That same report found women also suffered from poor medical care associated with menstruation. One detainee suffered from ovary inflammation for which her doctor had prescribed birth control pills, but she was not permitted to continue this medication during her immigration detention. 24 Other detainees interviewed had difficulty obtaining medical treatment for gynecological concerns even when faced with extreme pain, heavy clots, 25 and abnormal menstruation cycles. 26 equal to 36.5 ml, medium if flow was between 36.5 ml and 72.5 ml, and heavy if flow exceeded 72.5 ml, noting flow was routinely heavier in the first three days of any cycle. Id. at 537. Thus, looking at flow capacity alone, a menstruating girl or woman would need two pads or regular-sized tampons per period day if experiencing light flow (as 36.5 ml ÷ 5 days = 7.3 ml/day) or more than four if experiencing heavy flow (as 72.5 ml ÷ 5 days = 14.5 ml/day). See also Dasharthy, supra note 21 (noting flow is highly variable and in one study a woman lost 540 ml of blood, which would necessitate significantly more sanitary products). But flow capacity is not the only concern for menstruating women and girls. Those who use tampons for more than six hours or overnight are at greater risk for toxic shock syndrome, a life-threatening bacterial infection. See Amaury Billion et al., Association of Characteristics of Tampon Use with Menstrual Toxic Shock Syndrome in France, 21 LANCET 100308 (2020). Thus, to avoid the risk of toxic shock syndrome, menstruating women need a minimum of four pads or tampons per day. . Some clotting-if larger than a quarter, frequent, appearing with abnormally heavy flow, or accompanying pain-can be a symptom of a more serious medical problem. Id. See also Prior, supra note 21 (noting the passage of large clots can be linked to menorrhagia, the medical term for very heavy flow).
The simple and obvious solution to these unacceptable conditions is for menstruating women in immigration detention to have unlimited access to period products and adequate gynecological care. 27 The problem is that they are already supposed to have that. The national standards currently applicable to immigration detention require that "female detainees shall be issued and may retain sufficient feminine hygiene items, including sanitary pads or tampons [.]" 28 The standards also require detention facilities to "replenish personal hygiene items at no cost [.]" 29 Furthermore, all immigration detainees 29 ICE NDS, supra note 28, at 128 (Standard 4.4 § II.F); see also ICE PBNDS, supra note 28, at 329 (Standard 4.5.V.D) ("The responsible housing unit officer shall replenish personal hygiene items on an asneeded basis"). The existence of national standards regarding immigration detention means that menstruating migrants should, theoretically, have easier access to period products than criminal defendants in jails and prison inmates. That's because the vast majority of individuals in jails and prisons are subject to state, not federal law. See Kajstura, supra note 19 (noting local jails housed 101,000 women and state prisons another 99,000 women, whereas far fewer women were held in federal custody: 16,000 in federal prisons and jails along with 7,700 in immigration detention). State law regarding access to period products varies. See Mitchell O'Shea Carney, Note, Cycles of Punishment: The Constitutionality of Restricting Access to Menstrual Health Products in Prisons, 61 B.C. L. REV. 2541, 2543 (2020) ("Thirty-eight states currently do not have any legislation requiring prisons to provide adequate supplies of pads or tampons, and instead leave the distribution of menstrual health products to individual prison officials."). In Indiana, for example, a state congresswoman recently introduced a bill to require the state's department of corrections to provide "free and unlimited access to . . . tampons . . . and menstrual pads to any incarcerated woman held by the department." See House Bill No. 1349 http://iga.in.gov/static-documents/8/3/9/1/839124ba/HB1349.01.INTR.pdf [https://perma.cc/BGC6-BCJR] (introduced in January 2021). Indiana law does not currently provide for unlimited access to free period products in state-run prisons. Federal prisoners, in contrast, are statutorily entitled to free tampons and sanitary napkins. See First Step Act of 2018, Pub. L. No. 115-391 § 611, 132 Stat. 5194, 5274. "shall have access to appropriate medical . . . care," 30 with women specifically entitled to "age appropriate gynecological and obstetrical health care[.]" 31 It is, therefore, a question of enforcement: making sure that the line officers in charge of distributing sanitary products and the medical personnel in charge of evaluating gynecological concerns actually provide the goods and services they are required to under the federal standards. 32 There are myriad ways in which this could happen. Women's bathrooms could be stocked with freely available tampons and pads. If officers insist on maintaining control over these items, signs could be placed near where they are stored, noting "all sanitary supplies are freely available upon request." Detention officers could be subject to mandatory education on the topic of menstruation and the requirement to 30 ICE NDS, supra note 28, at 112 (Standard 4.3 § I).
31 Id. at 124 (Standard 4.3 § II.U); see also ICE PBNDS, supra note 28, at 322 ("Female detainees shall receive routine, age appropriate gynecological and obstetrical health care, consistent with recognized community guidelines for women's health services.").
32 Maunica Sthanki has characterized the immigration detention standards as "nonbinding, nonregulatory, and unenforceable." Maunica Sthanki, Deconstruction Detention: Structural Impunity and The Need for an Intervention, 65 RUTGERS L. REV. 447, 464 (2013); see also César Cuauhtémoc García Hernández, Due Process and Immigrant Detainee Prison Transfers, 21 BERKELEY LA RAZA L.J. 17, 54 (2011) (noting detention standards are not "legally enforceable" and concluding "[c]ompliance with these standards, therefore, results only from the government's good graces."); Roya Butler et al., Correctional Facilities, 20 GEORGETOWN J. GENDER & L. 357, 389-90 (2019) (noting that detention standards "are supposed to be contractually binding on DHS facilities, but these standards lack enforcement mechanisms, and facilities that do not meet the standards are not held accountable."); Emily Ryo & Ian Peacock, A National Study of Immigration Detention in the United States, 92 S. CAL. L. REV. 1 (2018) ("None of these standards are legally enforceable regulations. As the U.S. Commission on Civil Rights has concluded, the nonbinding nature of these standards often means that the 'facilities are not held accountable when they fail to maintain or meet these standards--at times with tragic results.'") (footnote omitted). Sthanki rightly bemoans the lack of private rights of remedy to enforce existing detention standards through civil litigation as well as Supreme Court decisions that have limited the ability of detainees to sue the private-prison companies in charge of much of immigration detention. Id. at 450, 472. Detainees are entitled to file grievances based on detention standards failures, but many do not file out of fear of retribution and even those who do often fail to remedy their problem. Id. at 466-67. One way to give the standards bite would be, as Sthanki suggests, to strengthen accountability mechanisms (particularly criminal investigations and prosecution of detention abuses) combined with significant external oversight of detention practices (by, for example, the Department of Justice). Id. at 490, 496-97, 499-500. Another approach would be to give detainees a private right of action to enforce detention standards in federal court. See Stacey A. Tovino, Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients, 100 MINN. L. REV. 2381, 2426 (2016) ("DHS must make these standards legally enforceable."). A third alternative would be to codify the detention standards in federal regulations. See Stacey A. Tovino, The Grapes of Wrath: On the Health of Immigration Detainees, 57 B.C. L. Rev. 167, 169 (2016) (calling for the replacement of the health care detention guidelines with "rigorous federal regulations"). distribute sanitary products. Medical providers could be subject to similar educational requirements, emphasizing the importance of gynecological care.
Another solution to menstruation in immigration detention comes not from enforcing rights already owed, but from developments in the everyday management of menstruation. Several companies now sell high-quality and reusable period underwear. 33 While period underwear cannot entirely replace traditional pads and tampons, it can provide coverage for light period days as well as a second layer of coverage for heavier period days and overnight protection. 34 Federal agencies should consider purchasing period underwear 35 and distributing it to menstruating females in custody, in addition to improving access to tampons and pads.
Females menstruate. This does not change when they enter custodial settings. It is up to the federal government to ensure that migrant women and girls within their charge consistently receive the period supplies and related medical care they need. The fact that the government has not consistently met this obligation highlights the problematic way in which civil immigration detention, ostensibly designed not to punish, 36 nevertheless impermissibly punishes female migrants. 37