by David M. Reutter
On September 16, 2022, the U.S. Court of Appeals for the Seventh Circuit held that forcing a Muslim prisoner “to submit to cross-sex strip searches” by a transgender Wisconsin guard “substantially burdens his religious exercise.” The case was then remanded to the district court with instructions to enjoin the state Department of Corrections (DOC) to accommodate the prisoner’s request for a cis-gender male guard to perform future strip searches.
While held at Green Bay Correctional Institution, prisoner Rufus West was subjected to a routine post-visit strip search in July 2016. Guard Isaac Buhle, who began working at the prison six months earlier, is a transgender man who was born female but lives as male. He was assigned duties of a male guard by DOC. But West objected to being strip-searched by Buhle, asking for other nearby guards who were both born male and identify as such. One of them agreed to step in, but Buhle participated as the observing officer.
After the search, West filed a complaint with the prison because Buhle saw him naked. The prisoner requested an exemption from such “cross-sex” strip searches in the future. The warden denied the request. The security director responded separately, writing: “This person is a male, and any further issues on this will result in discipline for you.”
West then sued the warden and the security director, along with Buhle and other guards, accusing them of violating his rights under Religious Land Use and Institutionalized Persons Act (RLUIPA). Specifically, he challenged the prison’s policy of requiring him to submit to strip searches by guards who are not cis gender males, saying it violated the moral tenants of his Islamic faith for a “person of the opposite sex,” other than his wife, to view his naked body.
West also made a claim under 42 U.S.C. § 1983 that his Fourth Amendment guarantee of freedom from unreasonable search was violated. The parties filed cross-motions for summary judgment. The U.S. District Court for the Eastern District of Wisconsin granted judgment to Defendants on both of West’s claims. West appealed.
The Seventh Circuit said the pertinent lesson from Holt v. Hobbs, 574 U.S. 352 (2015) and Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), “is that a substantial burden on religious exercise occurs when a prison attaches some meaningful negative consequence to an inmate’s religious exercise, forcing him to choose between violating his religion and incurring that negative consequence.”
“And while the disciplinary threats themselves cross the relevant line,” the Court continued, “we add that West might additionally feel pressured to forgo activities – such as visits with family or friends – to decrease his chances of enduring a cross-sex strip search.” The Court further found the policy was not the least restrictive means to further the prison’s goals.
Defendants argued that Title VII required DOC to accommodate transgender employees to perform male duties. But the Court rejected that, noting that Title VII bars three types of employment discrimination, none of which was present here: There was no “termination or reduction in compensation” for Buhle, no “transfers or changes in job duties that cause an employee’s skills to atrophy and reduce future career prospects,” nor were there “unbearable changes in job conditions, such as a hostile work environment or conditions amounting to constructive discharge.”
“Simply put, requiring strip searches to be performed by guards of the same sex as the inmate does not materially alter the conditions of [Buhle’s] employment,” the Court wrote.
Additionally, Title VII permits sex-based distinctions in employment where sex is reasonably necessary to normal operations of the business or agency. The Court found no Equal Protection Clause violation in granting an exception to Title VII for “cross-sex” strip-search.
As to West’s Fourth Amendment claim, the district court’s ruling was based on King v. McCarthy, 781 F.3d 889 (7th Cir. 2015), which held prisoners had no Fourth Amendment privacy interest against visual inspections of their body. But the Court had overruled that decision in Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020). [See also: PLN, Jan. 2021, p.52.]
Thus the district court’s order was reversed and the case remanded for entry of injunctive relief on West’s RLUIPA claim and for development of his Fourth Amendment claim. See: West v. Radtke, 48 F.4th 836 (7th Cir. 2022).
It’s instructive to note that the Court described Buhle as a “prison employee of the opposite sex” from West. Also one whose career prospects will somehow not be reduced by barring him from performing duties other male guards perform. But those were apparently insufficient reasons for DOC to appeal the decision.
So the case has now returned to the district court, where West’s motion for appointed counsel was granted on December 12, 2022. PLN will update that and other developments as they are available. See: West v. Kind, USDC (E.D. Wis.), Case No. 2:17-cv-00482.
Additional sources: Advocate, Reason
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login