In a decision notably lacking in empathy for transgender people and the slights and humiliations they suffer on a regular basis, U.S. District Judge Gregory H. Woods granted New York City’s motion to dismiss a complaint by Marlow White, self-identified as a man of transgender experience, that his 14th Amendment rights were violated by NYPD officers and the City when the police failed to respond to the continued verbal harassment of White by Napoleon Monroe, a man who frequented the neighborhood where White lived and made various threats against him as well as subjecting him to verbal harassment. White v. City of New York, 2016 WL 4750180 (S.D.N.Y., Sept. 12, 2016).
According to the court’s summary of the factual allegations, the police officers who were summoned by White when he was continually accosted by Monroe were blatantly transphobic, treating him as somebody unworthy of respect and suggesting that until somebody was seriously injured, they would not lift a finger to help.
Among other things, Judge Woods’ opinion concludes that in the absence of a 2nd Circuit ruling holding that gender identity is a suspect classification (or, as the judge phrases it, that discrimination against transgender people is a form of sex discrimination and thus subject to heightened scrutiny review, as the 11th but not the 2nd Circuit has held), the refusal of police officers to take White’s complaints or do anything to stop Monroe’s harassment of him is subject only to rational basis review. Under that standard, Woods found that the discretionary decision by police officers not to arrest somebody who had yet to commit a violent crime against the complainant was not so arbitrary as to lose them the shield of qualified immunity.
Furthermore, the judge found that under Due Process jurisprudence the police officers had no obligation to prevent one citizen from subjecting another to verbal harassment and threats, so long as the police were not enabling or encouraging actual harm to the complainant.
The judge found that White’s allegations of past incidents involving the police and their dealings with transgender people were not sufficient to document some sort of official NYPD policy of disparate treatment of transgender people that would be necessary to impose municipal liability, or of a failure to properly train the police about how to interact with transgender people. One suspects that transgender rights organizations could supply a panoply of evidence about police disrespect for the human rights and dignity of transgender people, but unfortunately the evidence presented in response to this dismissal motion seems to have been minimal.
“White’s conclusory allegations regarding the City’s alleged failure to train its police officers fail to state a claim,” wrote the judge. “He states that ‘adequate training regarding issues peculiar to persons of trans experience will make it substantially less likely that the rights of persons of trans experience will be violated. But the facts in the Amended Complaint do not plead a pattern of similar constitutional violations, such that the City was on notice that different, or additional, training was needed.” Quoting a Supreme Court ruling, Connick v. Thompson, 563 U.S. 51, 62 (2011), “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Judge Woods found that White “has failed to establish a history of NYPD officers mishandling situations involving persons of trans experience such that the City was deliberately indifferent by failing to provide the unspecified training that he desires. Accordingly, because White has failed to allege either a widespread practice or a failure-to-train claim, his Monell claim is dismissed without prejudice.”
White is represented by Donald Robert Dunn, Jr., of the Bronx. The dismissal without prejudice suggests that he could come back with a new complaint on the municipal liability issue if he can put together a more complete factual record of the NYPD’s failure to provide non-discriminatory law enforcement protection to trans citizens.
But we suspect that if top management officials in the NYPD, the Corporation Counsel’s office and the De Blasio Administration took the time to read Judge Woods’ summary of White’s factual allegations, they might quickly conclude that it would be prudent to provide appropriate training at the precinct level to NYPD officers on how to deal sensitively with such issues, as a matter of good public policy if not constitutional obligation. After all, the articulated goal of the city administration is to improve the quality of life of NYC residents by cultivating a collaborative relationship between the citizenry and the law enforcement community. And, it is possible that the 2nd Circuit will eventually decide that gender identity discrimination is a form of “sex discrimination,” as the 11th Circuit, the EEOC and other federal agencies have concluded, and the activities of the NYPD in this regard will be subjected to heightened scrutiny in appropriate cases.