by Douglas Ankney

A three-judge panel of the Appellate Division of the Superior Court of New Jersey (“Court”) has ruled that the New Jersey Department of Corrections’ (DOC) denial of a civilly committed transgender female’s request for transfer to a women’s prison violated neither the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 14.1, nor the Equal Protection Clause of the New Jersey Constitution, Article I, Paragraph 1.

The Appellant, “S.G.,” is civilly committed at the Special Treatment Unit (STU) under the Sexually Violent Predator’s Act (SVPA), N.J.S.A. 30:4 - 27.24 to 27.38. S.G. identifies as a woman, presents herself as a woman, is currently undergoing hormone therapy and is preparing for gender affirming surgery. S.G. requested transfer from the STU to the female-only Edna Mahan Correctional Facility (EMCF).

She presented four reasons for her requested transfer: “(1) a resident previously ‘pushing up’ on her for sexual favors; (2) inappropriate comments from residents; (3) stolen and damaged undergarments from the laundry department; and (4) anticipated increasing risk with her anticipated gender affirming surgery.”

After S.G.’s requested transfer was denied, she filed a grievance, pursuant to DOC Policy PCS.001. TGI.01 (DOC Policy). She alleged “discriminatory treatment and harassment from other residents,” “physical assault,” “denial of gender affirming care,” and harassment by a “STU staff member watching her while she was in her undergarments.” Upon receipt of the grievance, Administrator Patricia Nah notified the Special Investigation Division (SID).

The SID investigated but the alleged culprits denied harassing S.G. The DOC denied the grievance, observing that the DOC Policy applied only to incarcerated prisoners, not to residents involuntarily committed to the STU under the SVPA. S.G. appealed.

The Court observed “[w]ide discretion is afforded to administrative decisions because of an agency’s specialized knowledge.” See: Matter of Request to Modify Prison Sentences, 242 N.J. 357 (2020). “[A] strong presumption of reasonableness attaches to the actions of the administrative agencies.” The Court added, “[C]ourts will not interfere with the internal administration of the institution, absent action by the prison authorities which deprives an inmate of [their] constitutional rights or is clearly capricious or arbitrary.”

“[T]he arbitrary and capricious standard,” the Court continued, “focuses on four questions: ‘(1) whether the agency’s decision offends the State or Federal Constitution; (2) whether the agency’s action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.”

With regard to S.G.’s claims under the LAD, the Court explained, “[t]he LAD protects against discrimination in the workplace, housing, and places of public accommodation. N.J.S.A. 10:5-4. It prohibits discrimination based on sex, gender identity, and gender expression, and demands that managers of places of public accommodation, which are ‘in [their] nature reasonably restricted exclusively to individuals of one sex,’ must nonetheless admit ‘individuals … based on their identity or expression.’ N.J.S.A. 10:5-12(f)(1).”

Claims brought under the LAD are analyzed with a burden-shifting framework requiring that: “(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant must then show a legitimate nondiscriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant’s stated reason was merely a pretext or discriminatory in its application.”

The Court determined that S.G. failed to state a prima facie claim under the LAD because, contrary to S.G.’s mistaken belief, N.J.S.A. 10:5-12(f)(1) does not require “facilities to be sex-segregated and that people’s assignments in these sex-segregated facilities be aligned with their gender expression or identity.” The statute permits—but does not require—facilities to be sex-segregated: “[F]acilities or activities which MAY to a significant degree involve at times an occasion for breach of bodily privacy MAY reasonably be confined to one sex.” See: National Organization for Women v. Little League Baseball, Inc., 127 N.J. Super. (App. Div. 1974) (emphasis added).

The Court further explained that the SVPA required the DOC to house sexually violent predators (SVPs) “separately … and segregated” from prisoners.” Since the STU was the only facility currently designated for housing SVPs irrespective of sex assigned at birth or gender identity, “the obligations that fall upon sex-restricted facilities under N.J.S.A. 10:5-12(f)(1) are not applicable.”

Turning to S.G.’s equal protection claim, the Court observed, “[i]n New Jersey, a balancing test considers a three-factor analysis to determine if a person’s equal protection rights have been violated, weighing ‘[1] [the] nature of the affected right, [2] the extent to which the governmental restriction intrudes upon it, and [3] the public need for the restriction.’” See: Caviglia v. Royal Tours of Am., 178 N.J. 460 (2004).

The Court explained that the DOC was not treating S.G. differently based on her gender identity or expression but based upon her status as an SVP. While incarcerated transgender persons are permitted to transfer to female-only facilities, persons adjudicated as SVPs must be housed separately and segregated from prisoners. Additionally, the DOC denied S.G.’s transfer on the additional factors of her personal safety and her treatment needs—including her potential to recidivate if she was housed off site. S.G. had no right to be housed at an all-female facility and keeping her at the STU served “to protect other members of society from the danger posed by sexually violent predators.”

The Court concluded that the DOC’s denial of S.G.’s transfer to a women-only facility violated neither the LAD nor the Equal Protection Clause of the State Constitution. Accordingly, the Court affirmed the DOC’s denial of the requested transfer. See: S.G. v. New Jersey Department of Corrections, 484 N.J. Super. 155 (Super. Ct. App. Div. 2026).

[Note to Readers: The Court refused to address S.G.’s argument that two cisgender female SVPs had been transferred to the EMCF. Because the argument was raised in S.G.’s Reply Brief, the Court wouldn’t consider it—but on the face of it, that certainly sounds discriminatory.]  

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