U.S. District Court Judge Denise Cote ruled on August 1 that a transgender inmate could proceed with her constitutional and statutory discrimination claims against an in-patient substance abuse treatment center that denied her the opportunity to participate in the support group of her preferred gender. The opinion, published in the August 19 edition of the New York Law Journal is particularly interesting in holding that the NY state human rights law's ban on housing discrimination could be applied to a residential treatment facility.
According to Sabire Wilson's complaint, she is a pre-operative male-to-female transsexual, who was arrested for drug possession on March 27, 2008. Under a plea agreement, she entered New York's Drug Treatment Alternative to Prison, under which she would voluntarily admit herself to a residential treatment facility instead of spending time in prison. She selected Phoenix House, allegedly because of its published policy of non-discrimination on the basis of sex or sexual orientation. When she was admitted to the facility on December 23, 2008, she told the staff about her gender identity. She was required to sleep in male facilities and use male bathrooms, but was allowed to dress as female.
Wrote Judge Cote, "In early January 2009, a senior counselor permitted Wilson to participate in a new gender-specific recovery group" that was all-female, but when the group started, some of the members complained about Wilson's participation and she was asked to leave. She appealed the decision to a counselor, who said she shouldn't have been given permission to participate in the first place, and refused to let her attend the group. When she asked to speak to the counselor's supervisor, she was told that the supervisor supported the counselor's decision and it was final. She persisted in demanding admission to the group, and Phoenix House discharged her to the court. She currently resides at Southport Correctional Facility.
Wilson filed this federal court action on her own, alleging denial of equal protection of the law and violation of the state's Human Rights Law, as well as false advertising in violation of a federal statute. Phoenix House asserted that the case should be dismissed under the Prison Litigation Reform Act, which bans prisoner suits unless administrative remedies are first exhausted, and also claimed that as a private facility, it was not subject to constitutional suit. The defendant also sought dismissal of the false advertising claim as not being covered by the statute, and argued that the state human rights law did not apply to this situation.
Judge Cote agreed with Phoenix House that the advertising claim was not viable, finding that the federal statute was not intended to cover this kind of situation. But she rejected the argument that Phoenix House could not be sued on an equal protection claim, that the PLRA barred the suit, or that the human rights law did not apply.
Since Phoenix House was accepting criminal defendants under these plea bargain arrangements and was compensated by the state, there was enough of a "nexus" with the government to justify applying constitutional standards. As to the exhaustion requirement, it was up to the defendant to show that there were procedures available that Wilson did not use. She complained to her counselor, and her attempt to appeal to higher authority was rebuffed. There was no showing that the grievance and appeal system used by the NY Department of Corrections was applicable to this deferral treatment program.
Wilson's claim under the Human Rights Law was premised on a violation of the provision barring housing discrimination based on sex or sexual orientation, claiming Phoenix House failed to accommodate her gender identity. Phoenix House argued that the housing discrimination provision was aimed at landlords, not residential treatment facilities, but Judge Cote, relying on the statutory definition of "housing accommodation," pointed out, "Defendants have not identified any support for their argument that Phoenix House is not the 'owner, lessee, sub-lessee, assignee, or managing agent of' a 'housing accommodation' within the meaning" of the relevant statutory provisions.
Judge Cote did not discuss the point, but it is important to this case that several New York courts have ruled that the state Human Rights Law's provisions on sex and sexual orientation discrimination include discrimination based on gender identity, even though that phrase is not expressed in the statute. Attempts to pass the Gender Identity Non-Discrimination Act (GENDA) have faltered in several sessions of the legislature. It is hard to understand why, when the courts have amended the law "de facto" to cover such cases, and don't seem to have taken the failure of the legislation as a reason to back away from their interpretation. To be on the safe side, however, where appropriate it would be a good idea in cases like these to also assert a claim under the New York City Human Rights Ordinance, which explicitly includes gender identity. That would depend, of course, on whether the defendant was operating within New York City.
In this case, as noted above, Wilson filed her court complaint on her own, without a lawyer. After all the papers were submitted on Phoenix House's motion, Wilson sent a letter to the court, asking that the case be dismissed without prejudice because she had limited access to the prison law library and was not in a position to fully oppose the motion. Judge Cote decided the motion anyway, since all the papers had been submitted, and commented, in a footnote: "Since Wilson filed her notice of voluntary dismissal after the defendant's February 9 motion to dismiss became fully submitted, she will be given three weeks from the date of this Opinion to indicate whether she still wishes to voluntarily dismiss the case." Now that Wilson has largely defeated the motion to dismiss, she may want to reconsider if she can find voluntary counsel. The question whether a pre-operative transgender inmate of a residential treatment facility can participate in treatment as a member of her preferred gender strikes me as a significant legal issue. Perhaps a public interest firm concerned with transgender rights could take this case up, as a pro se prisoner is really not in a good position to conduct discover and litigate a summary judgment motion. Unfortunately, whoever made the decision to delay publication of the court's decision until virtually three weeks after it was issued may have precluded this option.