30-c-2 Access to Personal Items Associated with Gender Identity

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

30-C-2. Access to Personal Items Associated with Gender Identity

Clothing, cosmetics, jewelry, and personal care products are often significant components of a person's gender presentation. Prisons vary as to whether they permit prisoners to access the clothing of their choice and other personal items.⁴³ Prisoners have challenged prison policies that deny them access to certain kinds of clothing and products, as well as specific refusals of prison staff to provide them with such property, under Section 1983. In both situations, prisoners allege that the prison policies and refusals violate their constitutional rights. These challenges have been mostly unsuccessful, however, because courts show significant deference to prison officials' decisions about how to oversee daily life in prison.⁴⁴

Claims under the First Amendment generally fail in the face of arguments by prisons that restrictions on dress, jewelry, and makeup are justified by legitimate penological interests.⁴⁵ Several courts have noted that such deprivations are simply not of a constitutional nature.⁴⁶

As one court stated:

'Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measures of life's...