Transgender Prisoner Issues Result in Litigation, Policy Changes
In two recent settlements, corrections officials were forced to pay for their failure to honor the chosen gender identity of transgender prisoners and where they were housed. But in a third case, a court’s refusal to second-guess a housing decision by prison staff led to a transgender prisoner being assaulted and injured.
One of the cases involved Michale Wright, who goes by Michelle. In 2013, at age 21, she was sentenced to the Oregon Department of Corrections (ODOC) and placed with male prisoners – though she had been publicly identifying as a woman since she was 16. The next year, in 2014, prison mental health staff diagnosed her with gender dysphoria and recommended treatment, including hormone replacement therapy and counseling.
However, Wright’s request for the treatment was denied. Three suicide attempts and two attempts of self-castration followed. Wright, then 25, completed the ODOC’s grievance process and, after further unsuccessful attempts to obtain treatment, the Oregon chapter of the ACLU filed suit on her behalf in 2015.
Two years later the parties reached a settlement, effective October 18, 2017, that included a $167,500 payment to Wright and another $100,000 for her attorneys’ fees and court costs. The ODOC also agreed to forgive debt totaling $1,469.82 that Wright owed for copies, disciplinary fines, medical costs and postage.
In addition, the settlement changed the way Oregon prison officials handle transgender prisoners. Revising its canteen policies, the ODOC will now allow Wright to purchase curling irons and flat irons. It will also permit her to use an electric razor to remove body hair and provide her with bras and female underwear.
The ODOC further agreed to send Wright to a women’s prison without regard to considerations of “biological sex or the presence of genitalia.” A treatment plan was formulated, including hormone therapy and the consideration of “surgical intervention” if recommended by a professional after an evaluation. The ODOC said it would consider a proposal to create a support group to benefit transgender prisoners. See: Wright v. Peters, U.S.D.C. (D. Ore.), Case No. 6:16-cv-01998-MC.
Another settlement was awarded to a transgender prisoner identified in court documents as J.G. In 2016, she was booked into a jail in Greene County, Missouri for a 24-hour hold on suspicion of second-degree assault. A standard strip search was conducted, after which, according to court documents, “the arresting officer contacted [the] jail and asked why a male was being housed with female inmates.”
That resulted in a second strip search by a female guard in the presence of a male guard. J.G. alleged the search was for the purpose of examining her genitalia to determine her gender, in violation of jail policy. Though born a male, she has lived as a female since having sex reassignment surgery. Represented by attorney Craig Heidemann, J.G. filed suit, alleging the second strip search violated her civil rights.
Greene County Sheriff Jim C. Arnott settled the case in January 2017 for $501 plus reasonable attorney fees. But he never paid. His lawyer, Damon Phillips, said the sheriff balked at the amount of fees that Heidemann asked to recover – $9,500 for 31 hours of work.
“The sheriff tried to back out of [the deal],” countered Heidemann. “In 20 years of practicing law, I’ve never had somebody try and back out of a deal like this.”
Phillips filed a motion to strike the settlement agreement on the grounds that J.G. had “intentionally changed and added terms that [she] either believed were outside the scope of the offer, or where [she] believed the offer was ambiguous as to those changed and additional terms.”
The district court resolved the matter with a September 28, 2017 order of judgment “for damages totaling $501.00, with reasonable attorney fees and costs as agreed by the parties or assessed by the court.”
As of November 2017, Arnott still had not paid the settlement due to a disagreement over fees and costs. Heidemann said that “leads me to believe I’ll have to collect by other means,” such as moving to enforce the agreement.
“This case was never about money,” he stated. “It’s about human dignity.” But, he added, “I’ll do whatever I need to do under the law.” See: J.G. v. Arnott, U.S.D.C. (W.D. Mo.), Case No. 6:16-cv-03347-REL.
A third transgender prisoner, Lindsay Saunders-Velez, 20, suffered a violent assault while she was incarcerated at the Territorial Correctional Facility, a Colorado state prison. She had entered the Colorado Department of Corrections (CDOC) in May 2017 to serve a three-year sentence for violating a plea agreement on a previous felony menacing charge.
Although she had started hormone therapy in 2016, guards refused to call her by her female name or to use feminine pronouns, and denied her requests to be searched by female guards, to buy female underwear or to acquire facial hair remover.
Saunders-Velez, 20, had been in Colorado’s foster care and youth corrections system since she was four years old. As a youth, she worked with the state’s ACLU chapter to successfully change the way juvenile detainees and prisoners are housed – whether with males or females, the decision is now left to the transgender youth.
The Prison Rape Elimination Act prohibits corrections officials from assigning prisoners to housing units based on their sex at birth or genitalia. Instead, they must make an individual assessment for each transgender prisoner. However, some facilities still assign prisoners based on the old criteria, said Demoya Gordon, an attorney with Lamba Legal’s Transgender Rights Project.
In July 2017, Saunders-Velez sued the CDOC over threats and harassment she said she endured in custody because she is transgender and housed with male prisoners. She had already made several suicide attempts, but was returned after each attempt to the Territorial Correctional Facility.
In December 2017, Saunders-Velez reported a sexual assault in her housing unit.
She was then accused of kissing another prisoner – a charge she denied – and sent to a “punishment pod” in April 2018. Her attorney, Paula Greisen, asked a court to intervene to have Saunders-Velez moved to a female housing unit for her safety.
U.S. District Court Chief Judge Marcia S. Krieger denied the request, saying that since Greisen failed to prove a risk of “imminent and irreparable injury,” the court was reluctant to overrule CDOC officials. Saunders-Velez was returned to the male housing unit, where she was viciously attacked within the first hour and spent a week in the infirmary to recover from her injuries.
These three cases highlight the “two steps forward, one step back” evolution of prison policies with respect to transgender prisoners. It was less than a quarter-century ago that the U.S. Supreme Court ruled, in 1994, that a transgender prisoner had standing to sue prison officials for injuries she received while incarcerated. See: Farmer v. Brennan, 511 U.S. 825 (1994) [PLN, July 1994, p.1].
The Prison Rape Elimination Act marked the next major step for the rights of transgender prisoners. Then came Adams v. Bureau of Prisons, a 2011 settlement that not only allowed a transgender woman to begin hormone therapy while in custody, but also ended the BOP’s so-called “freeze-frame” policy, which had let prison officials off the hook for any medical treatment a prisoner wasn’t receiving when he or she entered federal custody. [See: PLN, Dec. 2012, p.18].
That same year, a federal court struck down a Wisconsin law barring transgender state prisoners from receiving hormone replacement therapy or sex reassignment surgery. A transgender prisoner serving a life sentence for murder in California received the first state-funded sex reassignment surgery in 2017. [See: PLN, April 2017, p.13].
Four years after Adams, in 2015, San Francisco’s City Jail began assigning prisoners to housing units based on their gender identity rather than primary or secondary sex characteristics. New York City jails followed suit in 2018.
After suffering several assaults and rapes in custody, Passion Star, a transgender prisoner, sued the Texas Department of Criminal Justice (TDCJ), and in 2017 won changes to the TDCJ’s intake policy that make access to “safekeeping” areas easier for LGBT prisoners.
In 2018, a Missouri judge applied the ruling in Adams to hold the state could not use the fact that a prisoner was not receiving hormone replacement therapy before incarceration to bar her from starting that treatment while incarcerated.
Most recently, however, in May 2018, the Trump administration rolled back protections for transgender prisoners held in federal facilities. The changes to the BOP’s Transgender Offender Manual removed the section that requires prison officials to consider a prisoner’s “gender identity” when making housing decisions. Instead, the BOP will now use “biological sex as the initial determination,” with gender identity being considered only in “rare cases.”
The changes followed a lawsuit filed by four female prisoners in Texas, who objected to being housed with transgender women.
“Blending of the sexes in the confined and restricted conditions attendant to prisons violates the privacy of female inmates and causes numerous dangers and threats to the physical and mental health and safety of our female Plaintiffs,” the prisoners stated in their complaint. See: Fleming v. United States, U.S.D.C. (N.D. Tex.), Case No. 7:17-cv-00009-O.
The BOP’s policy change was quickly and strongly condemned by prisoners’ rights and LGBT advocates.
“The extreme rates of physical and sexual violence faced by transgender people in our nation’s prisons is a stain on the entire criminal justice system,” said Mara Keisling, executive director of the National Center for Transgender Equality. “Instead of leaving the existing policy alone, the administration is clearly prepared to encourage federal prisons to violate federal law and advance its own inhumane agenda.”
Sources: Springfield News-Leader, Cañon City Daily Record, Tampa Bay Times, Seattle Times, www.nbcnews.com
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Related legal cases
Wright v. Peters
|Cite||U.S.D.C. (D. Ore.), Case No. 6:16-cv-01998-M|
J.G. v. Arnott
|Cite||U.S.D.C. (W.D. Mo.), Case No. 6:16-cv-03347-REL|
Fleming v. United States
|Cite||U.S.D.C. (N.D. Tex.), Case No. 7:17-cv-00009-O|