Transgender people face specific and unique difficulty in prisons and jails due to ignorance, discrimination, and violence from guards and other prisoners. Unfortunately, many transgender prisoner cases are unsuccessful. However, there have been some victories, and we are hopeful that more will follow as courts and prisons are forced to recognize this growing and vocal community. There are several organizations involved in this movement, so you may want to contact one of them before beginning any case. They are listed in Appendix H.
This Section describes legal issues that may be important to transgender prisoners, and uses examples of cases brought by such prisoners. Where there is very little law specifically addressing transgender prisoners, we have included cases about gay, lesbian, and bisexual prisoners; our hope is that these cases may be useful by comparison.
Intersex conditions or disorders of sexual differentiation (DSDs), are the terms used for people born with physical conditions that make their bodies not seem “typically” male or female. People with intersex conditions may have some challenges in prison that are similar and some that are different from the challenges transgender people face. Where we could, we have also talked about some cases brought by people with intersex conditions in prison.
a. Placement in male or female facilities
Many transgender people are placed in male facilities against their will even if a female facility would be more consistent with their gender identity, expose them to less danger of violence, or make more sense to them for other reasons. Some transgender people are placed in female facilities against their will even if a male facility would be better. In general, courts have said that prison officials have the power to decide where transgender people and people with intersex conditions should be placed. However, just like all other prisoners, prison officials have to keep transgender prisoners safe from substantial risk of serious harm, whether they are in male or female facilities. In practice, people are usually placed in male or female facilities based on their genitals, regardless of what would be the best placement for them.
Some transgender women have brought lawsuits against prison officials for categorizing them as men and placing them in male facilities, rather than treating them as women and placing them in female facilities. So far, we have found no court decisions that rule in favor of the transgender woman on this issue. There have been several unsuccessful cases. In Meriweather v. Faulkner, 821 F.2d 408 (7th Cir. 1987), a court dismissed a transgender woman’s argument that placing her in a male facility violated her Equal Protection rights. The court relied in part on a Supreme Court decision, Meachum v. Fano, 427 U.S. 215 (1976), that stated that prisoners do not have the right to be placed in any particular facility. Other unsuccessful cases are Lamb v. Maschner, 633 F. Supp. 351 (D. Kan. 1986); Lucrecia v. Samples, NO. C-93-3651, 1995 WL 630016 (N.D. Cal. Oct. 16, 1995); and Long v. Nix, 877 F. Supp. 1358, 1366-67 (S.D. Iowa 1995).
However, we know of at least one successful challenge by a transgender woman to placement in a male facility in New York. In that case, the prison officials she sued agreed to place her in a female facility in exchange for her ending the law suit against them. The case was settled in 1990.
A non-transgender woman with an intersex condition brought a law suit because she was placed with men and strip searched by male guards. The court ruled against her, saying that she could not prove that the sheriff was “deliberately indifferent” because he seemed to have mistakenly thought that she was a man. The court also said that she could not prove a “sufficiently serious deprivation” because she did not say that she had physical injuries. Tucker v. Evans, No. 07-CV-14429, 2009 WL 799175 (E.D. Mich. March 24, 2009).
On one occasion, a non-transgender woman brought a lawsuit because a transgender woman was housed with her in a female facility. The plaintiff, a non-transgender woman, argued that a transgender woman should not be housed with her and that prison officials were violating her privacy rights. The court ruled against the plaintiff, and said that the prison officials were not liable for placing a transgender woman in a female facility with her. Crosby v. Reynolds, 763 F. Supp. 666 (D. Me. 1991).
Strategies other than lawsuits may have a chance. For example, working with others to convince a prison system to make new policies for classifying transgender prisoners may lead to change. Or, trying to find a friendly doctor or psychologist who will explain to prison officials why you should be placed in a particular facility could help.
Transgender prisoners might have more luck with equal protection challenges if they can convince the courts that transgender people are part of a “suspect” or “quasi-suspect classification.” As explained in Section C, the courts are much more critical of laws that discriminate against people based these types of classifications. We have not seen any courts apply the “quasi-suspect classification” for gender to a case brought by a transgender litigant, but a strong argument could be made for application of that standard.
These arguments will be hard for a pro se prisoner to make, because they will probably require expert testimony, so you may want to reach out to one of the organizations listed Appendix H for help if you want to attempt this type of claim.
b. Involuntary segregation
Transgender and intersex prisoners often end up in segregation against their will, sometimes as punishment, sometimes for “protection,” and sometimes because prison officials cannot decide what gender they should consider the person. If you are in some form of segregation or restrictive housing and don’t want to be, there are a few different ways to challenge your placement. Remember, in a lawsuit, you don’t have to pick just one theory. You can and should include all of the theories that you think might have some real chance of working.
As we explained in Section D of this chapter, in certain situations prisoners are entitled to “procedural due process” before being placed in segregation. You may want to review that section to help you understand the following cases.
In Estate of DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334 (10th Cir. 2007), the court found that the due process rights of a woman with an intersex condition were not violated even though she was kept in the most restrictive setting in a women’s prison for fourteen months, the whole time she was in prison. She had the lowest possible security classification and was isolated only because she had an intersex condition. Some of the reasons the court gave for ruling that way were that DiMarco had access to medical care and prison staff throughout her incarceration and that prison officials talked with doctors when they made the placement decision. The court said that DiMarco had access to the “ordinary essentials” of prison life, and that she had a chance to be heard at a review of her placement every 90 days. The court thought it was important that DiMarco did not say that segregation in itself was unreasonable, just that the conditions and extreme isolation were too severe.
In Farmer v. Kavanaugh, 494 F.Supp.2d 345 (D. Md. 2007), a transgender woman named Dee Farmer challenged her transfer to a Supermax facility after another prisoner said she was trying to steal the identity of a warden. The court said that her due process rights were violated. Because the Supermax was so harsh and isolating, the prison should have given her some chance to find out why she was being transferred and for her to explain why she didn’t deserve the transfer. She did not get that chance. But, the court also said that at the time she was transferred, the law was not clear, so the rule of “qualified immunity” meant that she could not get damages as a result of the constitutional violation. Qualified immunity is explained in Section D of Chapter Four.
Deliberate Indifference to a Serious Medical Need
Isolation can hurt anyone’s mental health, but it can be especially dangerous for people with certain psychiatric disabilities. If prison officials know that you have a serious medical need that isolation makes worse and ignore that need, you might have a claim. The general requirements for these types of claims are described in Part 4 of Section F, above.
In Farmer v. Kavanaugh, 494 F.Supp.2d 345 (D. Md. 2007), described earlier, Ms. Farmer also argued that the officials acted with deliberate indifference to her serious medical needs when they transferred her to a Supermax. She had HIV, depression and other physical and mental health conditions. There was also a memo in her file stating that segregation hurt her health. Once she was transferred, her viral load and her depression got worse. Unfortunately, the court said that Ms. Farmer could not show that the officials actually knew how bad the Supermax would be for her health, even if they should have known. So, the court ruled against Ms. Farmer on that argument.
Basic Needs and Cruel and Unusual Punishment
Section F, Part 3 of this chapter explains your right to have your basic needs met in prison. If you have been placed in segregation and are not allowed to have basic things, like food, showers, or exercise, you might be able to bring a case based on your right to be free from cruel and unusual punishment.
In Meriweather v. Faulkner, 821 F.2d 408 (7th Cir. 1987), a transgender woman serving a thirty-five year sentence challenged her placement in administrative segregation. The court allowed her to continue with her claim when defendants moved to dismiss her case. The court said that she did not have a due process claim because no liberty interest was at stake. The court also said that her Equal Protection claim failed because she could not prove “purposeful and intentional discrimination.” But, the court said that placing her in administrative segregation might be cruel and unusual punishment because it was for such a long period of time.
Sometimes, transgender people are treated differently than other prisoners by being put in segregation when other prisoners would not. You can challenge this treatment under the Equal Protection clause if you can show the different treatment is not “rationally related to a legitimate government interest.” The requirements for an equal protection claim are laid out in Section C of this chapter. You will have to be able to show that the officials intentionally discriminated against you.
There have been two very important victories in California in this area. Tates v. Blanas, No. S-00-2539, 2003 WL 23864868 (E.D. Cal. Mar. 11, 2003) and Medina-Tejada v. Sacramento County, No. Civ.S-04-138, 2006 WL 463158 (E.D. Cal. Feb. 27, 2006), are two unpublished decisions about transgender women kept in “T-Sep” or “Total Separation” in a men’s county jail. T-Sep was usually reserved for the most dangerous and violent prisoners and had much worse conditions than other parts of the jail. The jail put all transgender women in T-Sep for the entire time they were in jail. The court found the practice unconstitutional. The court ordered that the jail make a classification plan that did not automatically treat transgender prisoners worse just because they were transgender. The court said that transgender prisoners should not be shackled when other prisoners were not, should have access to recreation during the day, group religious services, and contact with other prisoners, unless there were specific reasons based on individual facts that kept a particular transgender person from being able to do those things.
Other challenges have not gone as well. In Farmer v. Hawk, No. 94-CV-2274, 1996 U.S. Dist. LEXIS 13630 (D.D.C. Sep. 5, 1996), Ms. Farmer was placed in controlled housing because she was HIV positive and performed oral sex on another prisoner. The court said her equal protection rights were not violated, because as someone with a “deadly disease” who was “putting other inmates at risk,” she was not in the same position as other prisoners. The court did not take into consideration the relatively lower risk of HIV transmission for oral sex as compared to anal or vaginal sex.
In Murray v. U.S. Bureau of Prisoners, 106 F.3d 401 (Table), Nos. 93-00259, 94-00147, 1997 WL 34677 (6th Cir. Jan 28, 1997), a court said a transgender woman’s rights were not violated when she was placed in segregation on several occasions. Some of the times she was placed in segregation were to protect her and other times were to discipline her for refusing to wear the bra they ordered her to wear. The court said that it was proper for the prison to put her in segregation for these reasons and ruled against her.
c. Access to Protective Custody
Most prisons have a process available to ask for placement in segregation if you fear for your safety. As explained in Section F, Part 1, It can be a violation of the Eighth Amendment for prison officials to refuse to place you in protective custody if they know that you are likely to be seriously harmed in general population and they do not take action to stop that harm.
The same transgender woman, Dee Farmer, brought the famous case that the U.S. Supreme Court used to establish the basic standard for deliberate indifference. The prison acknowledged that Ms. Farmer “project(ed) feminine characteristics” yet placed her in the general population of a men’s prison, where she was beaten and sexually assaulted by another prisoner. Ms. Farmer brought suit against the prison officials, claiming that the officials had shown “deliberate indifference” by placing her in the general population, thus failing to keep her safe from harm inflicted by other prisoners. The Supreme Court held that prison officials may be held liable under the Eighth Amendment when they know a prisoner faces substantial risk of serious harm and disregard that risk by failing to take reasonable measures to address it. Farmer v Brennan, 511 U.S. 825 (1994).
Because of this case, if officials know that you are in danger and refuse to put you in protective custody or take other action to protect you, you can bring a claim against them for violation of your right to be free from cruel and unusual punishment.
For example, in Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1998), a court acknowledged that a transgender woman had the right to be protected. The court stated, “Of course, as the cases have already established, [s]he is entitled to be protected, by assignment to protective custody or otherwise, from harassment by prisoners who wish to use …[her] as a sexual plaything, provided that the danger is both acute and known to the authorities.”
If you are denied protective custody because of your gender, sexual orientation, or race, you might also have an Equal Protection claim against prison officials. In Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), an effeminate gay male prisoner was repeatedly raped by other prisoners. He asked for help from guards over and over again and asked to be held in “safekeeping” or put in protective custody. The prison kept him in general population and told him to learn to “f*** or fight.” He brought a case against the officials for violation of his Eighth Amendment and Equal Protection rights. When discussing the Equal Protection claim, the court stated that if the officials denied him protection because he was gay, that would violate Equal Protection. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).
a. Access to Gender-Affirming Health Care
Transgender prisoners often have a very difficult time getting gender-affirming health care in prison. For this reason, it is not surprising that there are a lot of cases about whether you have the right to hormone therapy and other gender-related medical care in prison.
To understand transgender prisoners’ right to medical care, it is important to first review the basics of prisoners’ rights to medical care, explained in Chapter 3, Section F, Part 4. A successful suit can be brought under the Eighth Amendment if you show that prison officials were “deliberately indifferent” to your “serious medical need” and you were hurt because of it.
To make an Eighth Amendment claim regarding access to gender-affirming care, you will probably need to prove that you have what is called “Gender Identity Disorder” (GID), which is a condition recognized by the American Psychiatric Association (APA). Courts sometimes refer to GID as “transsexualism.” As of 2010 the APA is considering making changes to the way GID is diagnosed. Among other changes, they may rename the condition “Gender Incongruence” or “GI.”
Currently, though, the APA describes GID as “persistent cross-gender identification” with “clinically significant distress or impairment of functioning.” “Identification” is about how you see yourself in terms of gender. “Distress” can mean that you have feelings of sadness, depression, anxiety, disconnect, or self-hatred about your body and gender. “Impairment” can mean that you have a hard time doing everyday activities, relating to other people, getting a job, or taking care of your body because of your feelings about your gender and body. A number of courts have said that GID is a “serious medical need.”
Some transgender people find this medical framework helpful for understanding and explaining their experience. Others find it frustrating or offensive to have to fit their experience and identity in a medical model. To succeed in cases about health care, you will need to include at least enough medical information to convince a court you have a “serious medical need.” It can be tricky to find ways to talk about your gender that feel right and empowering to you that also help you achieve your legal and health goals. You can look at other cases and sources, then make your own decision about how to explain your healthcare needs to the court.
Some transgender people have had a hard time proving that they have GID if they have not gotten a formal diagnosis. One case like this is Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). Of course, it can be hard to get a formal diagnosis if your prison will not let you get evaluated by anyone qualified to diagnose you. You might be able to get a court to order that you should be evaluated for GID in the course of a lawsuit. You can argue that prisons are not allowed to just ignore signs that prisoners have serious medical needs and fail to diagnose those conditions to avoid their duty to provide medical care. To show that you need evaluation and treatment for GID, you should include in your complaint facts about how you feel about your gender and how long you have felt that way, the ways that not being able to get treatment have affected you, any attempts you may have made to live and appear as the gender you identify with, and any past treatment you may have had, such as hormones or surgery.
Many courts have held that prisons must provide some gender-affirming medical treatment for transgender prisoners in general, but have not required the prison to provide any particular treatment. In other words, if you complain to the prison about problems with your gender identity, and they refuse to examine you, or provide you with any treatment, you may have a strong Eighth Amendment case. However, if you want to challenge their decision to only provide therapy, as opposed to hormones, or only provide hormones instead of surgery, or provide hormones at a lower dose than you think you need, you will probably have a harder time. What this means on a practical level is that, if you can, you should state in your complaint that you have not received any treatment at all for GID.
Still, there have been some cases where courts have ordered specific treatment. One good case is that of Marty Philips, a transgender woman who received estrogen for years before going to prison, and sued the Michigan Department of Corrections over their refusal to allow her to continue taking estrogen at her own expense. Phillips v. Michigan Department of Corrections, 731 F. Supp. 792 (W.D. Mich. 1990). She experienced pain, bruising, vomiting, and depression as a result. The District Court Judge was clearly moved by Ms. Phillips’ story, and took the prison doctor to task for intentionally denying necessary medical care. The Judge ordered the prison to provide Ms. Phillips with estrogen in a preliminary injunction. (Preliminary injunctions are explained in Chapter Four, Section B.)
Prisoners have been most successful in seeking specific treatment when they can show that they were prescribed that treatment before going to prison, as in Phillips above. In at least one case, though, a court ordered estrogen treatment for someone who did not have a diagnosis of GID before incarceration, again through a preliminary injunction. Gammett v. Idaho State Bd. of Corrections, No. CV05-257-S-MHW, 2007 WL 2186896 (D. Idaho July 27, 2007). In that case, a transgender woman named Jennifer Ann Spenser had not been diagnosed with GID before she was incarcerated. She made many requests for treatment. After getting no help, she performed surgery on herself by cutting off her testicles. Then, the prison offered her testosterone treatment, and still refused her estrogen. The court found that she was likely to succeed on the merits of her case and should get a preliminary injunction to maintain her health while the case was pending.
A number of prison systems have policies that will not allow transgender people to get certain types of treatment (like sex reassignment surgery) or to get any treatment under certain circumstances (like if you weren’t getting it before you were locked up). Allard v. Gomez, 9 Fed. Appx. 793 (9th Cir. 2001), is a helpful case if your prison has this type of policy. In Allard a transgender woman sued because she was not getting hormone therapy. The court said that denying treatment based on a blanket administrative policy, rather than an individualized medical evaluation, was unconstitutional. Similarly, in Fields v. Smith, 712 F. Supp. 2d 830 (E.D. Wisc. 2010), the court found a state law unconstitutional because it barred funding of hormone therapy without considering the prisoner’s individual medical condition.
If your prison has a policy like this, another tool that might be helpful is a position statement released by the National Commission on Correctional Health Care (NCCHC). While it is not binding on courts, it can provide support for your position. Among other things, the position statement says: “Because inmate-patients may be under different stages of care prior to incarceration, there should be no blanket administrative or other policies that restrict specific medical treatments for transgender people. Policies that make treatments available only to those who received them prior to incarceration or that limit GID treatment to psychotherapy should be avoided.”
In some cases, prison policies are actually helpful, but prison staff do not follow their own policy. For this reason you should find out whether your prison or prison system has an official policy about treatment for transgender prisoners, and what that policy says.
In South v. Gomez, No. 99 -15976, 2000 U.S. App. LEXIS 3200 (9th Cir. 2000) Torey Tuesday South sued prison officials after they stopped her female hormone therapy. The guards asked the court to dismiss South’s claim on the basis of qualified immunity. (Qualified immunity is discussed in detail in Chapter Four, Section D, Part 2.) The prison officials argued that even if there is a right to hormone therapy that right is not “clearly established” because the court had never ruled on it before. The Ninth Circuit refused to dismiss South’s case, and explained that the defendants were being too specific. The right at issue is the general standard under the Eighth Amendment: the right not to have prison officials act with deliberate indifference to a serious medical need. This is a very good case that you may want to rely on if the officials you sue ask the court to dismiss based on qualified immunity.
At the time of publication we know of no cases in which a court has ordered sexual reassignment surgery, but that may change soon. In Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002), Michelle Kosilek sued prison officials for money damages and sex reassignment surgery after over a decade in which she was incarcerated without any form of gender-affirming medical or psychological care. While in prison she tried to kill herself and to castrate herself. The prison system at issue had a policy that “froze” medical care based on what the person got before being sent to prison. Someone who received female hormones from a doctor before entering the system, for example, could keep getting them in prison. However, someone who didn’t receive hormones before incarceration, or got them from the streets, could not get them. No one in the prison could get surgery. The Court decided that Kosilek had been denied necessary medical care because her care was based on a rigid prison policy, not a doctor’s individual examination. Although the court found that Kosilek had not satisfied the deliberate indifference requirement, the court’s opinion put the prison on notice that they had to start providing Kosilek with medically appropriate care. Kosilek sued again in 2005 saying that the treatment she was receiving, including psychotherapy, hormone treatment, and laser hair removal were not enough to relieve her anxiety or depression. As of publication, we do not yet know whether the Judge will order that the prison provide her with sex reassignment surgery.
As we explained in Chapter Three, Section F, prisons must generally keep prisoner’s health information confidential. In Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999) a court ruled that the fact that a prisoner is transgender must be also be kept confidential. In that case, a transgender woman in a women’s prison sued because prison staff said that she was HIV positive and had sex reassignment surgery in front of other staff and prisoners. As a result, rumors spread through the prison and both guards and prisoners harassed her. The court said that “like HIV status … transsexualism is the unusual condition that is likely to provoke both an intense desire to preserve one’s medical confidentiality, as well as hostility and intolerance from others.” Under this reasoning, the court decided that the prison employee in question violated the constitutional right to privacy. More routine medical information can probably be shared without violating the constitution, though.
The PLRA can cause problems in cases about confidentiality as it makes it difficult to bring a claim for compensatory damages unless you can show that you were physically hurt. This problem is described in Chapter Four, Section C, Part 2.
3. Free Gender Expression
a. Clothing and Grooming
Generally, prison officials can control clothing and grooming as they see fit. However, there are some small limits on what they can require, mostly in terms of the way people practice their religion.
Prison officials often defend their clothing and grooming policies by bringing up interests such as: prisoner safety, prison security, sanitation, cost effective options at the prison commissary, or ease of prisoner identification. Courts usually accept these interests and do not find that prisoners’ constitutional rights have been violated.
Transgender people challenging clothing and grooming policies have had very little success so far. One exception where there has been some success is in getting the right to have access to bras. In Tates v. Blanas, 2003 WL 23864868 (E.D. Cal. 2003), the court decided that access to a bra cannot be denied simply because a person is housed in a male facility. The facility, and its medical staff, must weigh (1) the possibility that a bra could be misused as a weapon against (2) any medical or psychological harm denying access to a bra may cause.
Below we explain some arguments that can be made for clothing and grooming needs of transgender people who are incarcerated. Be sure to think carefully before you try to file a lawsuit on these issues. The law is not on your side when you bring a claim for your right to express your gender through clothing, hair length, shaving, make up, or similar means. And as explained in Chapter 5, Section C, Part 2, if your lawsuit is dismissed as frivolous, it counts as a strike under the PLRA.
While we focus on Constitutional claims, you should also consider if there might be state law claims that you can bring. One young transgender woman in foster care won a case against her group home when they wouldn’t let her wear feminine clothes. The court said that not allowing her to wear clothes that matched her identity violated the state law against discrimination on the basis of disability. Doe v. Bell, 194 Misc.2d 774 (N.Y. Sup. Ct. 2003).
Clothing and grooming policies that force prisoners to meet different standards depending on whether they are seen as men or women may seem like obvious gender-based discrimination. Unfortunately though, courts have found that a different grooming policy for male and female prisoners is not discrimination on the basis of gender. Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976).
Arguments that transgender women are not being treated the same as other women when they are not allowed to have long hair or wear female undergarments, or that transgender men are not being treated the same as other men when they are not allowed to have facial hair or wear male undergarments, have not yet been accepted by the courts. Star v. Gramley, 815 F.Supp. 276 (C.D. Ill. 1993). Instead courts have compared the treatment of transgender people to the treatment of other people in their facility—so if no one in a male facility is allowed to have long hair, some courts have said there is no discrimination against a transgender woman in that facility who is also not allowed to have long hair. One court has even found that prison policies banning earrings, long hair, or use of make-up can be based on the governmental interest of “promot[ing] institutional security by discouraging transsexual dressing by inmates.” Ahkeen v. Parker, No. W1998-00640-COA-R3CV, 2000 WL 52771 (Tenn. Ct. App. Jan. 10, 2000).
There could be a greater chance of success in a claim about transgender people who are treated differently from other people in their facility. For example, if non-transgender men in a facility are not punished for having long hair but transgender women in the facility are, the transgender women may be able to state an Equal Protection claim. The general requirements for an Equal Protection claim are explained in Section C of this Chapter.
Cruel and Unusual Punishment
Eighth Amendment claims of cruel and unusual punishment are also very unlikely to succeed for clothing and grooming. As summarized in Section F of this Chapter, to establish cruel and unusual punishment, you must show that you are being denied a basic need of “civilized life” or that prison officials were deliberately indifferent to a serious medical need.
As explained above, courts have consistently considered “transsexualism” to be a serious medical need. Healthcare professionals recommend that transgender people dress and present in a way that matches their gender identity as a form of treatment. If prison officials know that you need this form of treatment, refuse to let you have it, and don’t give you any other sort of treatment instead, then an argument could be made that the prison is being deliberately indifferent to your serious medical need. One excellent recent case is Konitzer v. Frank, 03-c-717, 2010 U.S. Dist. LEXIS 45648 (E.D. Wis. May 10, 2010). In that case, a transgender woman sued to gain access to hormone therapy and clothing and grooming items that would aid her in expressing her gender, including a bra and make-up. The Judge denied the prisons’ motion for summary judgment, and ordered the case to go to trial.
However, at this point courts are still unlikely to see restrictions on the clothing and grooming of a prisoner as rising to the level of cruel and unusual punishment. In Murray v. U.S. Bureau of Prisons, 106 F.3d 401 (Table), 1997 WL 34677 (6th Cir. 1997), a transgender woman claimed that the denial of hair and skin care products that she had received in a previous facility and that were necessary to maintain her feminine appearance violated her Eighth Amendment rights. The court rejected her argument, stating, “cosmetic products are not among the minimal civilized measure of life’s necessities.”
Freedom of Speech and Religion
Section A of this Chapter talks about Freedom of speech and association. The “speech” protected by the First Amendment does not apply only to words you say, but can also apply to other ways you try to express your identity and your views. The way you do your hair, whether or not you shave certain parts of your body, and the clothes you wear might be seen as “speech” in this way. Unfortunately, though, under the Turner test courts will generally find that there are many ways to express yourself, and that restrictions on clothing and grooming are reasonably related to prison interests in safety and security. Some of the way prison officials have explained those interests to courts is to say that a person in a men’s prison who presents as a woman might be more likely to be attacked. Prison officials have also said that someone in prison could hide contraband in long hair or a beard.
If you also have religious reasons for needing to do something different than what the prison requires, you may have a much stronger chance of success under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). This is explained in Section B of this Chapter.
b. Name and ID Gender changes
Name changes and gender changes are not the same thing. A name change order alone will not let you change your gender on your ID.
ID Gender Changes
In some states, but not others, you can get a court order that says your gender has been changed. These court orders are often used to change your gender on a birth certificate if you were born in that state. If you want to change your gender through a court, you will usually need to provide some sort of proof from a doctor about your gender transition.
In those states where there is no way to get a court order, you can usually still change your gender on different forms of ID. You need to follow the rules of each agency to change your gender. It is possible to change your gender without changing your name or visa versa. But, it is often convenient to do both at the same time. Most agencies will require some sort of a letter from a doctor. For example, Social Security asks for a letter from a doctor saying that sex reassignment surgery has been completed. Currently every state except Ohio, Tennessee, and Idaho allow gender changes on birth certificates. Puerto Rico also does not permit gender changes on birth certificates.
Not all agencies require proof of surgery. For example, in New York, Massachusetts, and California, it is possible to get your gender changed on a driver’s license or state ID without having had surgery. Washington State allows gender changes on birth certificates without proof of surgery. To change your gender on ID, you may need to wait until you are out of prison or close to leaving.
You can change your name without changing your gender. The law about name changes is very different from state to state so you will need to look up your state law. In New York, for example, the law for name changes can be found starting at N.Y. Civ. Rts. § 60.
Non-prisoners who are at least 18 years old are generally allowed to change their name for any reason at all, so long as they are not trying to escape law enforcement, avoid debts or commit any sort of fraud.
However, some states have put limits on when people who are in prison or who have convictions can change their names. For example, in Louisiana, people who are convicted of felonies cannot change their names while in prison. LSA-R.S. 13:4751. In Illinois, people convicted of sex offenses or identity theft can never change their name. People in Illinois convicted of other felonies can change their name, but only ten years after they have finished their sentence. 735 I.L.C.S. 5/21-101. Some courts have also denied prisoners’ name change petitions, usually because they found that the name change would cause administrative burdens for the prison system, barriers to law enforcement identifying the person, or confusion in penal records. Some examples of these types of cases are In re Verrill, 660 N.E.2d 697 (Mass. App. Ct. 1996); Williams v. Racine County Circuit Court, 197 Wis.2d 841, 541 N.W.2d 514 (Wis. App.1995); and Brown v. Wyrick, 626 S.W.2d 674 (Mo. App. W.D. 1981).
However, in many states, name changes for prisoners are possible. For example, in Tennessee, a court ruled in a case called In re Ely, No. M2000-01937-COA-R3-CV, 2004 WL 383304 (Tenn. Ct. App 2004) that a criminal conviction alone is not enough to deny a name change. And in a case called In re Crushelow, 926 P.2d 833 (Utah 1996) the Utah Supreme Court found that judges cannot deny prisoners’ name changes based only on general concerns about confusion in the records. A court in California also recently found that federal prisoners may seek name changes. That case is called In re Arnett, 148 Cal.App.4th 654 (Cal. App. 2007).
You should never have to provide any sort of medical evidence or letters from doctors for your name change. Judges in some states have asked transgender people for that sort of evidence and denied them name changes if they did not provide that evidence. Some transgender people have appealed those denials. So far, in every case the transgender person has won the appeal and was granted the name change without medical evidence. Some examples of these cases are In re Golden, 56 A.D.3d 1109 (N.Y. App. Div. 3rd Dep’t 2008); In re McIntyre, 552 Pa. 324, 715 A.2d 400 (Pa. 1998); In Re Eck, 245 N.J. Super. 220, 223, 584 A.2d 859, 860-861 (1991); and In Re Maloney, 96 Ohio St. 3d 307, 774 N.E.2d 239 (2002). It is not reasonable to require transgender people to give notes from their doctors to get a name change when no one else needs a doctor’s note to get a name change.
If you get asked for medical evidence for your name change, you can decide what to do next. If you have a doctor who will write a letter or affidavit for you, one option is just to give the court what it wants. If you do not want to share your medical information with the judge or if you do not have a doctor who will help you, you can try to explain to the judge why you shouldn’t have to provide that evidence. You can file an appeal if you get denied. It is a good idea to try to find a lawyer if you want to challenge a name change denial.
In a recent case in Idaho, a transgender woman prisoner appealed when a trial court denied her name change petition. The appellate court said that there was no improper purpose for the name change and that a criminal record alone was not a legitimate reason to deny a name change. The court granted her name change. In re Gammett, Case No. CV NC 06 03094 (Oct. 3, 2006).
Unfortunately, even after you get a legal name change, it is possible that you will still be referred to by the name that you were first incarcerated under. In a recent case in California, a transgender woman sued prison officials for continuing to use her former, masculine name instead of her current legal feminine name. The court ruled against her. The court found that the prison officials’ need to prevent confusion in records, quickly and easily identify prisoners, and communicate efficiently with other agencies that use the commitment name outweighed the prisoner’s interest in using her legal name. Babcock v. Clark, No. CV-07-5073-FVS, 2009 WL 911214 (E.D. Wash. March 31, 2009).
While the name change process varies from state to state, it is generally not too complicated. It usually involves submitting a petition with information about yourself and why you want to change your name, sometimes also with a birth certificate and information about your criminal record. In many states, you need to publish notice of your name change in a paper one or more times, unless you can get a waiver because you would be at risk of violence if you had to publish your name change. One court in New York recently allowed a transgender person not to publish notice of a name change because transgender people are at high risk for hate violence. In re E.P.L. 26 Misc.3d 336 (Sup. Ct. Westchester Co. 2009).
Some states have special requirements for people with convictions. For example, in New York, people who are incarcerated or on parole for listed violent felony offenses have to send copies of a notice of the name change to the district attorney and criminal court where they were convicted.
If there is a court hearing about the name change, most times it is short and simple with only a few questions. Once your name change is granted, you can use a certified copy of the order from the court to change your name with different agencies.
c. Access to Reading Material
The Supreme Court has not specifically addressed a prisoner’s right to reading material with transgender content. General rules covering your right to receive any books or magazines in prison will apply. Cases relating to prisoners’ right to receive books and magazines with gay or lesbian content can also help you figure out when you have a right to receive reading materials with transgender content. For information about general rules and some information about material with gay or lesbian content, review Section A, Part 1 under the heading “Access to Reading Materials.”
Prison officials will usually argue that they are banning a publication because it is a threat to safety and order in prison. When prison officials want to stop prisoners from receiving transgender material, they may argue that other prisoners will see this material, think the person who has it is transgender, and target that person for violence. This particular argument may not work in situations where a person is already known to be transgender by the prison population. Still, prison officials may make a number of general arguments about safety, and will often win in the case of sexually explicit material.
If a publication is not sexually explicit, and instead deals with transgender rights or literature with transgender themes, it is less likely to be banned. In the case of gay and lesbian publications however, prison officials have argued successfully that even non-sexual materials are a threat to prison security. Depending on where you are incarcerated, courts may or may not agree with prison officials if they ban transgender material that is not sexually explicit.
d. Job/Program Discrimination
If you think you were denied or removed from a prison job or program because of your gender identity, you may be able to fight the prison’s decision by bringing a Section 1983 suit.
Some people have tried to challenge denials of a job or program with procedural due process claims. Unfortunately, these claims have generally not worked. Courts have said that prisoners do not have a constitutionally protected interest in their prison jobs. See Holmes v. Artuz, 1995 WL 634995 (S.D.N.Y. 1995); Gilbreath v. Clark, 193 Fed. Appx. 741 (10th Cir. 2006), Gill v. Mooney, 824 F.2d 192, 194 (2d Cir 1987).
Equal Protection claims, on the other hand, might be possible. District courts in New York and California have suggested that Equal Protection claims for gay and transgender prisoners denied prison programs may succeed. In Holmes v. Artuz, 1995 WL 634995 (S.D.N.Y. 1995), a prisoner brought an action saying that he was not allowed to have a job in the mess hall because of being an “overt homosexual.” The court refused to dismiss his complaint, saying that the prisoner may have stated a claim for violation of his Equal Protection Rights. The judge wrote that, “A person’s sexual orientation, standing alone, does not reasonably, rationally or self-evidently implicate mess hall security concerns. It is not sufficient to assert, as defendants do in their motion papers, that the prison’s exclusionary policy is designed to prevent ‘potential disciplinary and security problems which could arise from heterosexual inmates’ reaction to and interaction with homosexual and/or transsexual inmates who serve and prepare food.”
In Bass v. Santa Cruz Dept. of Corrections Sup’rs, No. C 94-20679 JW, 1994 WL 618554 (N.D. Cal. Oct. 27, 1994) a group of nine gay and transgender prisoners filed a law suit for violation of their Equal Protection Rights. One of their claims was that they were denied access to the prison’s programs because they were gay and transgender. The court acknowledged that the prison could not discriminate against them simply for being gay, unless the discriminatory policy or practice was reasonably related to legitimate penological interests. But, the court found that the prisoners couldn’t move forward with their case because none of them claimed that they tried to participate in any particular program. The court dismissed the case but allowed them to submit a new complaint within 30 days. While these cases focus primarily on sexual orientation, a similar argument could be used for discrimination on the basis of gender identity.
Finally, there could be a basis for a First Amendment claim if you were not allowed into or were kicked out of a program because you expressed your gender identity, held a political belief about transgender rights, or objected to mistreatment of gay, transgender, or intersex prisoners. In Holmes v. Artuz, for example, the judge allowed a First Amendment claim on the theory that the prisoner was retaliated against after complaining about unfair treatment for gay prisoners.
4. Dealing with Violence and Abuse
Transgender prisoners are often more vulnerable than other prisoners to physical assault, harassment and sexual violence. Having a body or gender that does not match dominant norms can be challenging outside of prison. On the inside, the close quarters, reduced privacy and power dynamics can present more problems. The system often increases the risks faced by transgender prisoners by assigning transgender women to male prisons. Prison employees may be unaware of the needs of incarcerated transgender individuals. All too often, they are part of the problem, ‘looking the other way’ when violence happens or directly abusing transgender people.
People who speak out may face retaliation by guards or other prisoners.
a. Verbal Harassment
Humiliation and verbal harassment of transgender prisoners takes many forms. At one prison, female transgender prisoners reported being forced to walk topless through a sea of male prisoners to get their clothes each week. Other prisoners have spoken out against frequent transphobic slurs and solicitations for sex. Unfortunately, the sexual harassment and psychological abuse that occurs in prison can be difficult to litigate. To learn about these types of claims, start by reading the section about Sexual Harassment and Abuse in Section F of this Chapter.
In Murray v. U.S. Bureau of Prisons, 106 F.3d 401 (6th Cir. 1997), Michelle Murray, a transgender woman, tried to sue over a series of harassing comments about her bodily appearance and her presumed sexual preference. The court dismissed the claim, saying that verbal abuse alone does not rise to the level of “unnecessary and wanton infliction of pain” necessary for an Eighth Amendment violation.
b. Rape and Sexual Assault
Section F of this chapter also explains the law about sexual assault and rape in prison. As explained in that section, to hold the prison liable if you are attacked by another prisoner, you will need to show that the prison officials knew you were at a risk for harm. If the prison has documented a history of attacks and harassment against you, those reports will probably be enough to show knowledge of the risk. Some courts have inferred that prison officials knew of the risk based on a plaintiff’s feminine appearance, small size, youthfulness or reputation as a drag queen or “known homosexual.” Taylor v. Mich. Dept. of Corrections, 69 F.3d 76 (6th Cir. 1995), Jones v. Banks, 878 F. Supp. 107 (N.D. Ill. 1995). In arguing to the court that the prison did not adequately protect you, it might be helpful to mention the Prison Rape Elimination Act (PREA) of 2003, which lists transgender prisoners within the category of “potentially vulnerable prisoners” that deserve special attention and monitoring.
A female transgender prisoner survived summary judgment in the Sixth Circuit for her claim against a prison warden for failing to protect her from a maximum-security prisoner who beat her with a fifty-pound fire extinguisher. Greene v. Bowles, 361 F.3d 290 (6th Cir. 2004). The Court found that she raised sufficient facts to show the warden knew about the risk
to her safety because of her “vulnerability as a transsexual” and her attacker’s reputation as a “predator.”
If the guard took any action, like writing up the matter or processing a complaint you submitted, the court might say the guard didn’t disregard the risk to your safety. In Johnson v. Johnson, 385 F. 3d 503 (5th Cir. 2004), the Fifth Circuit held that an officer who “referred the matter for further investigation” might have done enough to not be liable to a gay prisoner who claimed to have been forced into sexual servitude by a prison gang.
As with all the other types of claims discussed in this handbook, you can always consider bringing a case in State court as well. For a good example of a state claim about violence endured by a prisoner, see Giraldo v. California Dept. of Corrections and Rehabilitation, 168 Cal.App.4th 231 (1st Dist., 2008). Ms. Giraldo, a transgender woman, successfully sued prison guards under California state law after she was repeatedly raped and abused by other prisoners.
Of course, some assault and rape claims involve abuse by guards, rather than other prisoners. In Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), a court ruled in favor of a transgender woman in prison who claimed a guard grinded his exposed penis into her buttocks after she refused his demand for oral sex, allowing her to make an Eighth Amendment argument. Whether an incident of objectionable sexual touching meets the objective component of an Eighth Amendment claim will depend on what Circuit you are in, how serious the touching was, and whether it was a single incident or happened repeatedly.
c. Strip Searches
Section E of this Chapter summarizes the law about searches in prison, and Section H, Part 3 includes information about cross-gender strip searches.
Some people, like Victoria Schneider, have successfully challenged strip searches. Ms. Schneider was placed with male prisoners after her arrest even though she had been arrested before and booked as a female. In Schneider v. San Francisco, 97-2203 (N.D. Ca. 1999) she challenged a strip search used to determine her gender and a jury awarded her $750,000 in damages at trial. There does not appear to be a reported opinion from this case. In another good case, Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987), the Seventh Circuit allowed a transgender woman to proceed with an Eighth Amendment claim after she was strip searched before a group of guards who sought to humiliate and harass her.
On the other hand, in Doe v. Balaam, 524 F.Supp.2d 1238 (D. Nev. 2007), a transgender man lost his case challenging a strip search. After he was arrested for a misdemeanor, he told the police that he was transsexual. He was forced to strip in front of several officers before he was released on his own recognizance. The court found that the search was permissible because the officers had reasonable suspicion that he was concealing “contraband” (a rolled-up sock) in his crotch area.