New York Law School

Art Leonard Observations

Posts Tagged ‘transgender inmates’

Federal Appeals Court Says People with Gender Dysphoria are Protected Against Discrimination by Federal Disability Statutes

Posted on: August 17th, 2022 by Art Leonard No Comments

A three-judge panel of the Richmond, Virginia, based U.S. Court of Appeals for the 4th Circuit ruled on August 16 that people with a gender dysphoria diagnosis are considered to have a “disability” that entitles them to protection against discrimination under two federal statutes, the Americans with Disabilities Act (ADA) and the Vocational Rehabilitation Act.  The 2-1 decision is the first in which a federal appeals court has found such individuals to be entitled to protection under those two laws.  Williams v. Kincaid, 2022 WL 3364824, 2022 U.S. App. LEXIS 22728.

The Rehabilitation Act, passed in 1973, forbids discrimination in federal programs, by large federal contractors, or in programs or activities that receive federal financial assistance, against qualified individuals with a disability.  The ADA, passed in 1990, forbids discrimination by employers, by public entities (including public transportation), by public accommodations and commercial facilities, or in telecommunications, against qualified individuals with a disability.  Both statutes cover physical and mental disabilities.

Transgender people generally won protection against discrimination by employers under Title VII of the Civil Rights Act of 1964 when the Supreme Court ruled in Bostock v. Clayton County (2020) that the ban on discrimination because of sex in Title VII must be interpreted to include discrimination because of transgender status.  However, that ruling applies only to employment by entities with at least fifteen employees.  When Congress amended the civil rights bill in 1964 to add “sex” to the list of prohibited grounds for discrimination, it did not also add “sex” to other provisions of the civil rights bill – most significantly the public accommodations provision – so until the 4th Circuit’s August 16 ruling, there was no federal protection against discrimination in public accommodations and services for transgender people.

When the ADA was pending in Congress, Senators Jesse Helms and William Armstrong, outspoken opponents of LGBT rights, criticized the measure as a “gay rights bill,” arguing that “homosexuals,” “transvestites” and “transsexuals” could claim that they had a mental disability and sue for discrimination under the proposed ADA.  To prevent protection for people whom they disapproved, they successfully proposed an amendment that excludes from the definition of disability “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders” as well as “compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.”  Federal trial courts, until relatively recently, have interpreted this provision to preclude protection under the ADA or the Rehabilitation Act for transgender individuals.

In Kesha Williams v. Stacey Kincaid, the August 16 ruling, the trial court relied on the ADA exclusion language to dismiss claims by a transgender former inmate of a Virginia jail that she had been subjected to unlawful disability discrimination while incarcerated, because of her gender dysphoria.  The trial judge, Claude M. Hilton of the Eastern District of Virginia, concluded that Congress intended to withhold protection from transgender people, which would include those suffering from gender dysphoria.  He also rejected gross negligence claims against two of the three named defendants, the sheriff in charge of the jail and two jail employees.

Two of the three circuit judges disagreed with Judge Hilton.  Pointing to the Bostock decision, in which Justice Neil Gorsuch wrote that statutes should be interpreted in light of the common meaning of their language at the time the legislation was enacted, Circuit Judge Diana Gribbon Motz observed that the term “gender dysphoria” was not in use in 1990, and that the American Psychiatric Association, in the 2013 edition of its Diagnostic and Statistical Manual (DSM-5), had removed “gender identity disorders” as a listed diagnostic term, and had adopted the new term of “gender dysphoria.”  The court reasoned that this change was not just a case of renaming the same thing, but rather of recognizing a new “independent diagnosis” for a specific condition.  This resulted from “advances in medical understanding.”

“The very fact of revision suggests a meaningful difference,” wrote the judge, “and the contrast between the definitions of the two terms – gender identity disorder and gender dysphoria – confirms that these revisions are not just semantic.”  Consequently, a majority of the panel ruled that a person with gender dysphoria – which the defendants did not dispute was an actual disability that was otherwise within the statutory definition – did not come within the exclusionary provision.  As an alternative argument, they accepted Williams’ reliance on some scientific articles suggesting that gender identity has a physical basis and thus might be described as a gender identity disorder that results does from a physical impairment.

The court also pointed out that a 2008 amendment to the ADA instructed that “courts construe the ADA in favor of maximum protection for those with disabilities, (so) we could not adopt an unnecessarily restrictive reading of the ADA.”  And, added Judge Motz, reversing the district court’s dismissal based on this interpretation of the statute also avoided the need to rule on Williams’ contention that she had been denied Equal Protection of the law in violation of the 14th Amendment.  Courts generally will consider whether ruling against the plaintiff would raise constitutional issues in determining how to interpret a statute.

The court also rejected District Judge Hilton’s conclusion that claims against two prison employees should be dismissed on statute of limitation grounds because they were only named in an amended complaint that was filed after the two-year statute of limitations had run.  The court also reversed Judge Hilton’s dismissal of a gross negligence claim, finding, contrary to the trial judge, that Williams’ factual allegations were sufficient to meet the requirements of Virginia law for such a claim against the sheriff and one of the jail employees.

Dissenting, Judge A. Marvin Quattlebaum focused on similarities in the definitions of “gender identity disorders” and “gender identity” and argued that even if Williams was correct about “changes in understanding” by the medical profession since 1990, “linguistic drift cannot alter the meaning of words in the ACA when it was enacted.”  He insisted that as of 1990, “the meaning of gender identity disorders included gender dysphoria as alleged by Williams.”  He also disagreed with the majority of the panel on the gross negligence issue as it pertained to Sheriff Stacey Kincaid, the lead defendant.

The 4th Circuit panel decision establishes a precedent for the federal courts in Maryland, Virginia, and North and South Carolina.  However, it is possible that Judge Quattlebaum will call for a vote by the full circuit bench on whether to rehear the case “en banc,” or that the defendants could move for such a vote. A vote by a majority of the fourteen active judges of the Circuit court to grant en banc review would vacate the panel decision and require reconsideration by the full 4th Circuit bench.  (There is one vacancy that Biden has not yet filled.)  At present, eight of the fourteen judges are Democratic appointees, including Judge Motz (Bill Clinton) and Judge Pamela Harris (Barack Obama), the other member of the majority. Dissenting Judge Quattlebaum was appointed by Donald Trump.

The defendants could also apply directly to the Supreme Court for review of this decision.  The Supreme Court usually does not grant review unless there is a split among circuit courts about the legal issues in the case.  The 4th Circuit is rule on the question whether people with gender dysphoria are protected under the ADA and the Rehabilitation Act, so there is no circuit split.

Implementing the Prison Rape Elimination Act: Progress in Maryland for Transgender Inmates

Posted on: September 29th, 2015 by Art Leonard No Comments

Stephen T. Moyer, the Secretary of the Maryland Division of Public Safety and Correction Services, has accepted most of the recommendations by Administrative Law Judge Denise Oakes Shaffer, requiring the Division to implement key elements of the Prison Rape Elimination Act, a federal statute whose regulations address important issues concerning appropriate treatment for transgender inmates.  Moyer’s August 17 action, responding to Judge Shaffer’s April 1, 2015, decision on the grievance filed by inmate Neon Brown, has been described in some media accounts as the first legal victory by a transgender inmate under the PREA.

The PREA was enacted with bipartisan support in both houses of Congress in 2003, following hearings and studies documenting the epidemic of sexual assault in the nation’s prisons.  It was intended to establish common-sense policies and procedures to reduce the incidence of such violence.  Congress did not, however, specifically authorize inmates to bring lawsuits to enforce their rights, leaving big questions about how this important legislation would actually affect the experience “on the ground” of prisoners.  Regulations adopted to effectuate the PREA provide that correctional institutions should adopt policies directly addressing the issues raised by transgender inmates in terms of their day-to-day treatment by corrections staff, housing, access to recreational activities, and protection against physical and sexual assault.

Neon Brown’s grievance made clear, however, that the good intentions of PREA cannot be accomplished unless corrections staff are forced to effectuate them.  In this case, corrections staff responsible for making and enforcing policies at Patuxent Institution, where Brown was incarcerated for purposes of a mental health assessment from February 4 through April 11, 2014, professed ignorance about the PREA and the specific regulations concerning transgender inmates.  The institution had no specific policies as required by the regulations, and the staff received no particular training on how to relate to transgender inmates.  For example, in trying to decide how to conduct a strip search of a transgender inmate, Orlando Johnson, the Chief of Security, testified that it was a “make it up as you go” event.

When Brown was delivered to Patuxent on February 4, she was immediately separated from the other inmates and taken to the medical unit.  All incoming inmates are strip-searched for the purpose of detecting and confiscating contraband,  but it was clear from Johnson’s testimony that Brown was strip-searched also to see “if the inmate made the transition from female to male,” which sounds ridiculous because Brown was presented as female.  The strip search was conducted by two corrections officers in the presence of medical unit staff.  A female corrections officer, Sgt. Dawn Halsey, searched the top half of Brown’s body.  Then Brown was allowed to put on a top garment, and a male officer searched the lower half of her body.  There was no formal policy.  This was improvised on the spot, and the corrections officers had no relevant training.

Since Brown had been receiving hormone therapy, she has developed breasts, but she also has male genitals, and Chief Johnson decided to put her into administrative segregation — isolation — having judged that as a transgender inmate she posed a “possible threat to the security of the institution.”  Neither Johnson nor anyone else made an individualized risk assessment of Brown’s vulnerability at that time.  Indeed, before she arrived, advance word came to Patuxent officials that they were receiving a transgender inmate and they determined in advance without any individualized assessment to put her in administration segregation.

Normally a mental health assessment at Patuxent by the psychiatric team takes 30-35 days and the inmate is then returned to a regular correctional institution.  But although the psych team finished their assessment of Brown by February 20, she was kept in Patuxent’s administration segregation unit for another fifty days, and was only given access to recreational facilities once in that entire time.  Patuxent had no formal policy about housing transgender inmates, but made a reflexive, categorical decision to isolate Brown just because of her gender identity.

Brown claimed that she was deprived of showers, but Judge Shaffer found that she actually was allowed to shower.  Unfortunately, however, the showers did not pass without incident, as “on at least one occasion, unidentified correctional officers pulled a curtain back to stare at [Brown] while she showered,” and this was “not done for security purposes.”

Brown testified that throughout the time she was at Patuxent she “was taunted and harassed by Patuxent employees,” particularly Sgt. Halsey, “who repeatedly referred to the Grievant as an ‘it,'” found the judge.  “Sergeant Halsey told the Grievant that she was not a real woman and should kill herself.  These statements left the Grievant feeling belittled and contemplating suicide.”  The judge also found, based on testimony by another inmate in an adjoining cell as well as Brown, that correctional officers would stare into Brown’s cell, “not for the required purpose of determining whether she was alive, but to gawk and ‘giggle’ at her.”  These officers “would threaten the Grievant and call her names,” leaving her in tears at times.  Patuxent had no formal policy “mandating zero tolerance towards sexual abuse or harassment of transgender inmates,” provided no instruction to staff about how to relate to them, and when Brown complained to the chief psychiatrist,  her complaints were not investigated.

When Brown was sent back to a regular corrections facility she was housed in general population.  She pursued several grievances, alleging that the conduct to which she was subjected at Patuxent violated the PREA.   Lawyers for Patuxent from the Attorney General’s office argued that the PREA did not apply and that the Office of Administrative Hearings, to which the grievance was directed, had no authority to “grant relief” for Brown’s grievances.  This, as Judge Shaffer pointed out, misunderstood the administrative process.  Her role was to undertake fact-finding and submit a recommended decision to the Secretary of the Division, who would then have the authority to decide whether to accept her recommendations and implement them.

Judge Shaffer found that the improvised strip-search procedure did not itself violate the PREA, but that aspects of the intake process did.  For one thing, strip searches of new inmates to detect contraband are a fact of life in prisons, but strip searches to determine the physical sex of an inmate are not, and that was not a legitimate reason for subjecting Brown to a search.  Judge Shaffer found that questions about the genital status of an incoming transgender inmate could be addressed through interviewing without the need for a physical examination, and that the facility should adopt a formal policy governing these issues and instruct the staff about them.

Turning to the decision to place Brown in administrative segregation, Judge Shaffer quoted from the regulations, which state that “inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers.”  The regulation also says that if an assessment can’t be made immediately, the inmate should not be held in involuntary segregated housing for more than 24 hours.  Furthermore, such inmates should not be deprived of access to “programs, privileges, education, and work opportunities to the extent possible,” unless the facility documents, among other things, the reason for any limitations it places on the inmate.  And the regulation says that an assignment to segregated housing while an institution finds a way to separate such an inmate from “likely abusers” should not normally extent more than 30 days.

Clearly, Patuxent violated these regulations.  Brown was sent directly to administrative segregation and held there the entire duration of her stay in Patuxent, more than two months.  She was virtually deprived of recreational activities available to other inmates.  Although she was allowed to make phone calls, her access to showers was limited, and she was subjected to verbal harassment and disrespect from corrections officers, Sgt. Halsey being the best-documented harasser.  The facility had no formal policies concerning transgender inmates, and did not comply with a regulatory requirement to have a PREA coordinator to ensure compliance with the statute.  There was no relevant training of staff, as several corrections officers testified.

Judge Shaffer credited Brown’s testimony.  “The officers, they just treat me like crap,” she said.  “They talk — they call me all types of fags, and how — why do I want to get breasts, what makes me think that I’m a woman.”  “Based on the Grievant’s testimony,” wrote Shaffer, “I am persuaded that this type of disparaging behavior began almost immediately and continued through the Grievant’s stay at Patuxent.” Brown was told that she was “disgusting” and was made to feel like “some type of animal… like I was just less than a human being.”

In addition to finding that the facility was out of compliance with PREA, Shaffer found that Brown’s treatment by the staff was hostile environment sexual harassment.  Although she was not physically abused, she was mentally abused, and although Shaffer found that Brown had not documented her claim for $75,000 damages for mental anguish, she did recommend a payment of $5,000 in damages.  She recommended that the Secretary determine “what, if any, disciplinary action should be taken against Sergeant Halsey,” and recommended that Patuxent adopt comprehensive policies and institute mandatory training.  These policies should include guidance on strip search procedures, housing determinations, and appropriate interaction between correctional officers and transgender inmates.  She also recommended that Brown be awarded “diminution credits” under Maryland’s system of calculating time off for good behavior based on participation in various constructive activities.

The only one of Shaffer’s recommendations that Moyer rejected was the last, since, as he observed, there is a statutory system for awarding diminution credits and it was “entirely speculative” that Brown would have earned the credits at Patuxent, in light of the limited range of activities available in this diagnostic facility.  Otherwise, the recommendations were adopted in full.  Although this case applies only to the Patuxent Institute, one expects that the ruling will ripple throughout the Division, as all Maryland correctional facilities are now on notice of the requirements of the PREA and regulations.

Brown was represented in this process by two attorneys, Rebecca Simpson and Jer Welter.  Judge Shaffer conducted the hearings by teleconference and allowed the parties to submit post-hearing written arguments.  Assistant Attorneys General did not get involved until after the first hearing, when Judge Shaffer granted a motion to provide thirty days for Brown’s attorneys to obtain affidavits from witnesses to support her case.

Publicity for this decision is important because many states have been dragging their feet as to compliance with PREA.  Disciplinary consequences for corrections staff and damage awards to harassed and mistreated inmates may make the PREA appear more concrete to corrections officials.