Criminal Justice and Corrections

AuthorAlly Windsor Howell
ProfessionFormer practicing lawyer from Alabama
The concerns for transgender persons in the criminal justice system primar-
ily relate to their treatment in jails and prisons. There are two concerns:
safety and health care. These will be addressed separately.
However, how transgender persons are treated before being incarcerated
is a problem since law enforcement of cials often refuse to recognize their
transgender status and give them the respect that they deserve. The fol-
lowing is a documented example. Male U.S. Marshals who conducted “in
custody” strip searches of a pretrial detainee, a transgender woman, who
had undergone sex reassignment surgery and had her sex legally changed to
female, were held to not be entitled to quali ed immunity from transgender
detainee’s unlawful search claim under 42 U.S.C.A. § 1983. A reasonable
of cer would have known that a cross-gender search of a female detainee
by male United States Marshals Service (U.S.M.S.) employees that included
intimate physical contact, exposure of private body parts, and verbal harass-
ment, all in front of male detainees and male U.S.M.S. employees, in the
absence of an emergency, was unreasonable.1
1. Shaw v. District of Columbia, 944 F.Supp.2d 43 (D. D.C. 2013).
Criminal Justice and
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§12.1 Safety of Transgender Inmates
Inmates have a constitutional right to adequate housing.
When dealing with
male-to-female transgender inmates, however, the determination of what is
adequate is often a problem. The issue is not that transgender inmates are
or should be entitled to any kind of special housing, rather it is whether
they will be housed with male or female inmates. This situation was rec-
ognized by the U.S. Supreme Court, which held that prison of cials who
were involved in transferring a female transsexual prisoner to a maximum
security facility in which she was allegedly raped and assaulted by other
prisoners could be held liable if it were proven that they had shown delib-
erate indifference to the transsexual prisoner’s safety, in violation of her
Eighth Amendment rights.
In Farmer v. Brennan,
the Court found that
the transgender inmate was safer in administrative segregation, but did not
address whether that was proper or not.5
A prison inmate sued a guard and a prison supervisor, alleging that her
privacy and Eighth Amendment rights were violated by a guard’s disclo-
sure that she was transsexual. The U.S. District Court granted judgment
notwithstanding the verdict in favor of the defendants on a privacy claim
and dismissed an Eighth Amendment claim on grounds of quali ed immu-
nity. The U.S. Court of Appeals for the Second Circuit reversed in part and
held in part that the transsexual inmate had a privacy right of con dential-
ity in her medical records and that there was no quali ed immunity from
the claim that the guard and supervisor were deliberately indifferent to
the safety of the inmate, in violation of her Eighth Amendment rights, as
a result of the disclosure of the inmate’s transsexual status. However, the
supervisor had quali ed immunity on the con dentiality claim, as there was
no clearly established right to the con dentiality of prison medical records
at time in question.6
2. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
3. Id.
4. Id.
5. The issue was not raised. The question presented to the Supreme Court was: “Does
the ‘deliberate indifference’ standard adopted in City of Canton, Ohio v. Harris, 489 U.S. 378
(1989), govern Eighth Amendment claims regarding failure to protect prisoners from assault?”,
Petitioner’s Brief, at i. 1993 WL 625980.
6. Powell v. Schriver, 175 F.3d 107 (2nd Cir. 1999).
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