Criminal Justice and Corrections

• Author: Ally Windsor Howell
• Profession: Former practicing lawyer from Alabama
• Pages: 193-214

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).

193

Criminal Justice and

Corrections

CHAPTER 12

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§12.1 Safety of Transgender Inmates

Inmates have a constitutional right to adequate housing.

2

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.

3

In Farmer v. Brennan,

4

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).

TRA NSGENDE R PERSONS A ND TH E LAW 194

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