AuthorOrtlip-Sommers, Sarah


Federal constitutional jurisprudence, as it stands today, provides insufficient protections for transgender individuals who are incarcerated. Transgender prisoners face high rates of physical and sexual assault, harassment, and other mistreatment by state and federal prison officials and individuals incarcerated with them. Commonly pursued avenues for relief--namely the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the right to privacy--present hurdles in the form of too-hard-to-meet legal standards, and they perpetuate harmful stereotypes and cultural norms that should occupy no place in modern constitutional law. This Note proposes that, instead of relying on these inadequate constitutional claims to vindicate their rights, transgender prisoners and their advocates should consider litigating under the Due Process Clause of the Fifth and Fourteenth Amendments, articulating a right to live freely in accordance with one's gender identity. Recognition of such a right would enable plaintiffs to utilize more favorable substantive due process legal standards and eschew perpetuating outdated notions of gender within the law.


Sonia Doe has known she is a transgender (1) woman for nearly her entire life. (2) After being formally diagnosed with gender dysphoria, (3) she started hormone therapy and legally changed her name from the one given to her at birth to one that is traditionally feminine. (4) Her driver's license now lists her legal name and includes a female gender marker. (5) But after spending fifteen years as her true self, Sonia found herself unable to continue living freely as the woman she is. In March 2018, after she was sentenced to time in prison for offenses arising from an addiction to prescription painkillers, New Jersey officials placed Sonia in a prison facility for men. (6)

During Sonia's incarceration, prison staff consistently referred to her using male pronouns, denied her certain commissary items that were available to those living in the women's facility, beat her badly on multiple occasions, and subjected her to continual sexual harassment. (7) More than a year after entering prison, she learned from her attorneys that she could file a request for a housing transfer, which she then did. She was never informed of a final decision. (8)

Sonia filed suit (9) against the New Jersey Department of Corrections and certain prison officials in state court. (10) Among other claims, she asserted a "right to live freely" under article I, paragraph 1 (11) of the state constitution:

By continuously misgendering her, inter alia by housing her solely in men's prisons, referring to her as male, using male pronouns to address her, and sometimes even explicitly telling her she is a man, Defendants are forcing Ms. Doe to live as a man and violating her right to live and express herself freely as a woman. (12) Along with other forms of relief, Sonia sought a preliminary injunction in the form of a transfer to the New Jersey women's prison. (13) In August 2019, before a judge could rule on the matter, the Department of Corrections agreed to move Sonia to the women's facility for the remainder of her sentence. (14)

Transgender people face myriad harms when they become incarcerated, as Sonia did. They are routinely denied access to medical care. They are placed in the wrong housing facility, subjecting them to heightened risks of violence and harm. They are ridiculed and harassed by government officials and fellow prisoners. And they are often physically and sexually assaulted. The Constitution--along with other federal and state laws--provides avenues for challenging the mistreatment they endure, and many litigants are successful in defending their rights in court. But many more plaintiffs fail to meet the demanding legal standards shaped by decades of tangled case law, or their victories are the result of the law's reliance on antiquated ideas of gender that should play no part in our modern jurisprudence.

Sonia's story serves as an example of innovative litigation strategy when more commonly used frameworks fail to protect. To date, there has not been another claim articulating a similar right under state or federal law. This Note examines the current state of constitutional protections and proposes reframing transgender prisoners'--and all people's--rights under the Federal Constitution's Due Process Clause to recognize a right to live freely according to one's gender identity.

This Note proceeds in three parts. Part I provides relevant background information for understanding the challenges trans people face when they are incarcerated and how trans people have previously brought claims challenging conditions of their confinement, including housing placement that is inconsistent with their gender identity. Part II explains the inadequacy of constitutional frameworks often relied upon by transgender prisoners to bring such claims--including the Eighth Amendment, equal protection, and the right to privacy--at protecting trans individuals who have been mistreated in prison. Finally, Part III proposes a new framework under the Due Process Clause that transgender prisoners and their advocates may consider using to seek redress: the right to live freely according to one's gender identity. Jurists could apply the framework to many categories of claims brought by prisoners, as well as claims by non-incarcerated transgender individuals. (15)

  1. Incarceration While Transgender: Challenging Unjust Practices

    This Part illustrates the severe risks and harms faced by transgender people when they become incarcerated, including physical and sexual violence, mental health distress, and placement in solitary confinement. As numerous studies show, these problems tend to affect trans prisoners at higher rates than they do cisgender prisoners. (16) This Part then provides pertinent background information about the litigation processes and legal standards that lie ahead for a prisoner, transgender or otherwise, seeking to bring a lawsuit against state or federal officials.

    This Part discusses the experiences of the incarcerated transgender community as a whole, including people of all races and other identities. But it is important to note at the outset of this discussion that many of the struggles faced by trans prisoners are exacerbated when the prisoner is "multiply-marginalized," meaning they identify with two or more groups that have been historically disadvantaged and oppressed in society. (17) It is therefore critical to keep intersectionality and its impact on transgender prisoners in mind throughout this analysis, as in any discussion of issues facing marginalized communities.

    1. The Transgender Prison Experience

      Discriminatory treatment of transgender people within the criminal justice system does not begin at the prison gates. As the Sylvia Rivera Law Project has explained, trans and gender-nonconforming communities are often targets of over-policing and profiling, resulting in high rates of imprisonment, police harassment, and violence as compared with cisgender populations. (18) Nearly one in six transgender people face prison or jail time at least once, compared to about one in seventeen for the general population. (19) The rate for trans women is even higher: More than one in five trans women have been incarcerated during their lives. (20) Scholars have attributed this discrepancy to the presumption by law enforcement officers that trans women, particularly trans women of color, are likely sex workers. (21) Police officers "regularly stop, harass, and demand identification from transgender women, regularly subject them to commands to disperse, and regularly arrest them for low-level offenses tied to suspicions of prostitution"--a phenomenon now colloquially known as "walking while trans." (22)

      Once convicted, sentenced, and incarcerated, transgender individuals continue to confront discriminatory treatment and abuse. Trans prisoners are uniquely vulnerable within the incarcerated community, where they face elevated risks of physical violence, sexual assault, and mental health problems. Respondents to a 2015 survey of trans prisoners by the National Center for Transgender Equality reported sexual assault by facility staff at rates five to six times higher than the general incarcerated population. (23) They were also nine to ten times more likely to be sexually assaulted by another prisoner. (24) According to one Justice Department study, nearly forty percent of trans prisoners in state and federal prisons experience sexual victimization. (25) Another study found that fifty-nine percent of trans individuals who were incarcerated in California men's prisons experienced sexual assault while incarcerated. (26) In addition to enduring higher rates of physical and sexual violence than their cisgender peers, transgender prisoners are often targeted for violence because of their vulnerability. (27)

      Transgender prisoners are usually assigned housing based on their genitals alone. (28) For those who have not undergone gender-affirming surgery, this practice results in housing assignments that may not align with their true gender identity. Trans prisoners face distinct challenges when housed incongruously with their gender identity. Notably, they are often "singled out" for harassment and abuse. (29) In men's prisons, in particular, rates of violence against trans women are high. They are consistent targets of severe attacks--including sexual assault--by officers and other incarcerated individuals, sometimes leading to litigation against their abusers. (30) About twenty-one percent of trans women living in men's facilities suffer physical abuse while in prison, and twenty percent report sexual abuse. (31) Indeed, "rape ... is a distinct aspect" of many individuals' experiences in male prisons. (32) Trans women are at "special risk" for physical injury, rape, and...

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