I. Issues of Importance to Lgbtq+ People and People Living with Hiv/aids

• Library: The Jailhouse Lawyer's Handbook (CCR) (2021 Ed.)

I. Issues of Importance to LGBTQ+ People and People Living with HIV/AIDS

Although prisons often fail to recognize the beauty, diversity and complexity of our lived experiences, this section offers tools and information that lesbian, gay, bisexual, transgender, queer, or intersex ("LGBTQ+") people and people living with HIV/AIDS can use to fight against the ignorance, discrimination, and violence in prison. Law and society have a long way to go until there is true liberation for all people, but that day will come.

There are several organizations involved in this movement, so you may want to contact one of them before beginning any case. They are listed in Appendix I.

Section I: Table of Contents

Part 1 ..................... Right to Be Free from Discrimination Part 2 ......................Protection from Violence and Abuse Part 3.......................................Rights to Facility Placement Part 4.................................................... Rights to Healthcare Part 5 .............................Right to Free Gender Expression Part 6 ..................................................................Other Rights

This Section describes legal issues that may be important to LGBTQ+ prisoners. Unfortunately, the law operates in binary terms, and cases cited in this handbook will often use outdated and derogatory language like homosexual or transsexual and may conflate gender and gender identity for sexual orientation.

People who are intersex or have differences of sexual development (DSDs) (i.e., bodies that do not seem "typically" male or female) may have some challenges in prison that are similar to those that LGBTQ+ people face. Where we could, we have also talked about some cases brought by people with intersex conditions in prison.

1. Your Right to Be Protected from Discrimination

a. Discrimination Generally

In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court affirmed that the Equal Protection Clause protects LGBTQ+ people from discrimination. In a landmark decision, Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court also ruled that discrimination against LGBTQ+ people is a form of sex discrimination, just like discrimination against women or men.

These decisions did not address whether discrimination against LGBTQ+ people is subject to "heightened" scrutiny (sometimes called "intermediate" scrutiny), which would make discrimination easier to prove. As you will recall from Section C on equal protection, "heightened scrutiny" is a much better standard than rational basis review, because it requires the prison to prove that its policy is substantially related to an important government interest.

But a growing number of other courts have found that discrimination against LGBTQ+ people is subject to heightened scrutiny, just like other forms of discrimination based on sex and gender.

For instance, in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), an appeals court found that lesbian and gay people are a quasi-suspect class whose discrimination claims should receive heightened scrutiny based on four traditional factors considered by the Supreme Court: (1) whether lesbian and gay people have suffered a history of persecution; (2) whether being gay or lesbian makes people less able to contribute to society; (3) whether lesbian and gay people are part of a discrete group that has "obvious, immutable, or distinguishing characteristics"; and (4) whether lesbian or gay people are a politically weakened minority group. This decision was affirmed by the Supreme Court on other grounds, based on a due process theory, in United States v. Windsor, 570 U.S. 744 (2013).

In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014), another appeals court reached the same conclusion and ruled that sexual orientation discrimination is subject to heightened scrutiny.

A number of courts have held that transgender people are also a quasi-suspect class that receive heightened scrutiny. Some of these cases are: Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); Adams v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020); Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019); and Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017).

But not all courts have been willing to apply heightened scrutiny to LGBTQ+ discrimination claims.

The following table lists the rules that apply based on your jurisdiction. Circuits with good appellate decisions appear in bold. Keep in mind that many of the "bad decisions" were issued before many of the Supreme Court's important LGBTQ+ rights decisions. Old cases decided before the Court's same-sex marriage decisions appear with one asterisk, and even older cases decided before the Court's Lawrence v. Texas decision which struck down laws that made same-sex intimacy illegal appear with two asterisks. You may want to mention this if one of these old cases is cited in a brief against you.

QUESTION:	YES:	NO:	MAYBE: (i.e., some good decisions from district courts):
Does Heightened/Intermediate Scrutiny Apply to Transgender Discrimination Claims?	Fourth Circuit: Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) Sixth Circuit: Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep't of Educ., 208 F. Supp. 3d 850, 854 (S.D. Ohio 2016) Seventh Circuit: Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) Ninth Circuit: Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019); Hecox v. Little, No. 1:20-CV-00184-DCN, 2020 WL 4760138 (D. Idaho Aug. 17, 2020) Eleventh Circuit: Adams v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) Second Circuit: Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) Ninth Circuit: SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014)	Tenth Circuit: Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1220 (10th Cir. 2007)* First Circuit: Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)* Fourth Circuit: Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002)** Fifth Circuit: Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)* Sixth Circuit: Ondo v. City of Cleveland, 795 F.3d 597 (6th Cir. 2015) Seventh Circuit: Schroeder v. Hamilton Sch. Dist., 282 F.3d 946 (7th Cir. 2002)* Eighth Circuit: Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996)** Tenth Circuit: Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008)* Eleventh Circuit: Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004)*	First Circuit: Doe v. Massachusetts Dep't of Correction, No. CV 17-12255-RGS, 2018 WL 2994403 (D. Mass. June 14, 2018)(Yes) Second Circuit: Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015)(Yes) Third Circuit: Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017) (Yes); A.H. v. Minersville Area Sch. Dist., 408 F. Supp. 3d 536 (M.D. Pa. 2019)(Yes) Unclear because there are no recent, relevant decisions: Fifth Circuit & Eighth Circuit Third Circuit: Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014)(Yes)

If you live in a Circuit that uses heightened scrutiny to review claims of discrimination against LGBTQ+ people, it should be easier for you bring equal protection challenges. But if you do not, that's okay too. You can still bring equal protection claims to challenge your treatment under the rational-basis test, discussed in Section C Part 2.

b. Job/Program Discrimination

If you think you were denied or removed from a prison job or program because you are LGBTQ+, you may be able to bring an equal protection claim. Although it arose outside the prison context, a good case to cite is the Supreme Court's decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), which found that discrimination against LGBTQ+ workers is unlawful sex discrimination.

Even prior to Bostock, courts have found that equal protection claims brought by LGBTQ+ people denied prison jobs and program participation may succeed. In Davis v. Prison Health Services, 679 F.3d 433 (6th Cir. 2012), Johnson v. Knable, 1988 WL 119136 (4th Cir. 1988), and Counce v. Kemma, 2005 WL 579588 (W.D. Mo. 2005), courts ruled that LGBTQ+ plaintiffs who were denied prison work assignment because of their sexual orientation had a valid equal protection claim. In Holmes v. Artuz, No. 95 Civ. 2309 (SS), 1995 WL 634995 (S.D.N.Y. Oct. 26, 1995), the Court also rejected a policy denying mess hall jobs to "overt homosexual[s]" on equal protection grounds, writing: "A person's sexual orientation, standing alone, does not reasonably, rationally or self-evidently implicate...security concerns." The Court also rejected the argument that the employment ban was necessary to prevent "potential disciplinary and security problems" among prisoners biased against LGBTQ+ people.

In McKibben v McMahon, 2015 WL 10382396 (C.D. Cal. 2015), LGBTQ+ prisoners successfully brought a class action challenging their denial of educational opportunities, including occupational training and GED classes, and drug rehab programs.

To prevail on your equal protection claim, you will have to show an actual injury, such as attempting to participate in a program and being denied. In Bass v. Santa Clara Dept. of Corrections Sup'rs, 1994 WL 618554 (N.D. Cal. Oct. 27, 1994), the court rejected a case brought by nine LGBTQ+ prisoners who alleged they were barred from participating in prison programs but had never actually tried to join and been denied.

Due process claims challenging the denial of a job or program are unlikely to succeed because prisoners do not have a constitutionally protected interest in their prison jobs.

However, if being denied access to prison programs is preventing you from earning good time credits that could lead to an early release, you can try to argue your due process rights are being violated because of your liberty interest in earning a...