Lesbian, gay, bisexual, and transgender (“LGBT”) prisoners face the same challenges as other prisoners,but due to prejudice about sexual orientation and gender identity, LGBT prisoners often encounteradditional difficulties.Many of the issues unique to LGBT prisoners have not been litigated extensively.
And many of theissues that have been litigated may change significantly in light of a relatively new Supreme Courtdecision.
The outcomes of these claims are now less predictable. This unpredictability, combined with thefact that homophobia and transphobia may play a role in many judges’ and juries’ decision-making process,means that LGBT prisoners face uphill battles when they bring claims in court. For this reason, you shouldconsider contacting an LGBT impact litigation organization to see if its lawyers would be willing to take yourcase.
For a list of such organizations, see Appendix A at the end of this Chapter. This is especiallyimportant if you are seeking to apply new theories about sexual orientation or gender identity to your case.Even if such an organization cannot take your case, someone may be able to refer you to an attorney who hasexperience working with LGBT plaintiffs.Throughout this Chapter, the term “transgender” is used to indicate a broad spectrum of people whoseidentity or lived experiences do not conform to those that are typically associated with the sex assigned atbirth. This includes non-, pre-, and post-operative transgendered people; people who live part or all of thetime as a gender other than the one assigned to them at birth; people with intersex conditions; cross-dressers; masculine women; and feminine men. Gender identity is used to describe the gender a personidentifies as, regardless of whether that gender is the same as the one they were assigned at birth.This Chapter attempts to address the most pressing concerns of LGBT prisoners. Part B of this Chapterdiscusses important Supreme Court cases and how they may affect past and future prison regulations. PartC explains what to do if you are being treated unfairly because of your sexual orientation or gender identity.Part D discusses your remedies if you feel that homophobic or transphobic beliefs led to jury bias in yourconviction. Part E addresses your right to control your gender identity while in prison and includes adiscussion of your right to gender-related medical care such as hormone treatment. Part F explains yourright to confidentiality regarding your sexual orientation or gender identity. Part G addresses assault andharassment by prison officials and other prisoners. Part H discusses protective custody and housingplacements for transgender prisoners. Part I discusses visitation rights. Finally, Part J discusses your rightto receive LGBT literature. As you read this Chapter, you should always keep in mind that Title 42 of the United States Code,Section 1983 (known as “Section 1983”), is a federal statute that permits you to sue a person who, whileacting on behalf of the state, violates either one of your federal statutory rights or one of your constitutionalrights, such as your right to be free from cruel and unusual punishment under the Eighth Amendment oryour right to equal protection under the Fourteenth Amendment. If you are a state prisoner and your rights
* This Chapter was revised by Meredith Duffy, based on previous versions by Jen Higgins and Kari Hong. Specialthanks to Shannon Minter and Courtney Joslin of the National Center for Lesbian Rights (NCLR), Craig Cowie of the ACLU National Prison Project, Leslie Cooper of the ACLU Gay and Lesbian Project, Jennifer Levi of the Gay andLesbian Alliance Against Defamation (GLAAD), and Prof. Philip Genty of Columbia Law School’s Prisoners and FamiliesClinic for their valuable comments.1.Unfortunately, some legal decisions of significance to LGBT prisoners are unreported—that is, they do notappear in the Federal Reporter or Federal Supplement volumes available in prison law libraries. In the
, these caseshave citations like “U.S. App. LEXIS 12345 (
).” Make sure you read Chapter 2 of the
for importantinformation about unpublished cases. At the very least, even if you cannot cite an unpublished case in your claim, thecase may help you predict the outcome of a similar lawsuit.
See the next section for a lengthy discussion of Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2483, 156L. Ed. 2d 508 (2003).3.Impact litigation organizations litigate cases where the law is unresolved with the hope of creating favorablelaw for future cases. A list of such organizations appears in Appendix A at the end of this Chapter.