CASE NO.

11-7482

IN THE

United States Court of Appeals

FOR THE FOURTH CIRCUIT

OPHELIA DELONTA,
Appellant,

v.

GENE JOHNSON, ET AL.

Appellees

BRIEF OF AMICUS CURIAE D.C. TRANS COALITION IN SUPPORT OF APPELLANT URGING REVERSAL

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

JEFFREY LIGHT Law Office of Jeffrey Light 1712 Eye Street, N.W. Suite 915 Washington, DC 20006 (202) 277-6213 Jeffrey.Light@yahoo.com Dated: December 16, 2011 Counsel for Amicus D.C. Trans Coalition

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................. ii STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE ....... vii SUMMARY OF THE ARGUMENT ..................................................................... 1 ARGUMENT......................................................................................................... 2 Jurisdiction ......................................................................................................... 5 Standard of Review ............................................................................................. 5 Standard for adjudication of Equal Protection claims ........................................ 5 Ms. DeLonta is not treated the same as similarly situated non-transgender and gender-conforming female inmates .............................................................. 6 VDOCs policy intentionally discriminates against transgender women ............. 8 Heightened scrutiny applies to Ms. DeLontas claims ......................................10 VDOCs policy on housing transgender inmates does not survive scrutiny ........16 Ms. DeLonta has a cognizable Due Process claim ...........................................22 Ms. DeLonta has a cognizable Eighth Amendment claim .................................24 CERTIFICATE OF COMPLIANCE.....................................................................26 CERTIFICATE OF SERVICE..............................................................................27

TABLE OF AUTHORITIES Cases Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) ...................................15 Brock v. Carroll, 107 F.3d 241 (4th Cir. 1997) ............................................... 22, 24 DeLonta v. Angelone, 330 F.3d 630 (4th Cir. 2003).............................................. 9 Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993) .................................................................................................... 5 * Farmer v. Brennan, 511 U.S. 825 (1994) ............................................... 23, 24, 25 Frontiero v. Richardson, 411 U.S. 677 (1973) ......................................................10 Glenn v. Brumby, 2011 U.S. App. LEXIS 24137 (11th Cir. Dec. 6, 2011) ............15 Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978) ............................................. 22, 24 Graham v. Richardson, 403 U.S. 365 (1971) ........................................................10 In re Marriage Cases, 183 P.3d 384 (Cal. 2008), superseded in part by amendment, C.A. Const. art. 1, 7.5..................................................................13 Johnson v. California, 543 U.S. 499 (2005) ..........................................................10 Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) ......................................................... 9 * Loving v. Virginia, 388 U.S. 1 (1967) ................................................................. 7 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ........................10 Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001) ............................................ 6 Nordlinger v. Hahn, 505 U.S. 1 (1992) .................................................................10 Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ...........................................................13 Tates v. Blanas, 2003 U.S. Dist. LEXIS 26029 (E.D. Calif. Mar. 11, 2003)........... 3 * United States v. Virginia, 518 U.S. 515 (1996) ..................................................15 ii

Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002) ....................................................... 5 Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977)............................................................................................ 8 Wash. v. Davis, 426 U.S. 229 (1976) ..................................................................... 8 * Wilkinson v. Austin, 545 U.S. 209 (2005) ...........................................................22

* cases primarily relied upon

Statutes 28 USC 1915A .................................................................................................... 5 42 USC 15601....................................................................................................19 42 USC 15607(b) ...............................................................................................20 42 USC 15607(c)(2) ...........................................................................................20

Other Authorities 50 Visionaries Who are Changing Your World, Utne Reader (November-December 2009) .............................................................................14 About, available at http://www.deanspade.net/about .........................................14 Composer Changes More than Tune, New York Magazine, Vol. 12, No. 14 (Apr. 2, 1979) ...........................................................................14 Harsh Realities: The Experience of Transgender Youth in Our Nations Schools, Gay, Lesbian, and Straight Education Network (2009) ......................12 Lawsuit Prompts New DOC Policy on Medical Treatment for Transgendered Prisoners, available at http://acluva.org/1623/lawsuitiii

prompts-new-doc-policy-on-medical-treatment-fortransgendered-prisoners/ ..................................................................................... 9 My sex-change plans, by Queen Mothers surgeon, The Daily Mail (Apr. 1, 1996) ...........................................................................14 Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners, Stop Prisoner Rape & ACLU National Prison Project (2005), available at http://www.justdetention.org/pdf/stillindanger.pdf.............................................16 Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual, and Transgender People in the U.S. (2005), available at http://www.amnestyusa.org/outfront/stonewalled/report.pdf ..........18 C. Kilgannon, Fighting for the Rights of Transgender Voters, New York Times (Nov. 4, 2008), available at http://cityroom.blogs.nytimes.com/2008/11/04/once-a-mannow-a-woman-trying-to-vote/ ............................................................................13 C. Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211 (2004)...........16 C. Wolfe, Trans candidates fight for political power, The Bilerico Project (Dec. 6, 2007), available at http://www.bilerico.com/2007/12/trans_candidates_fight_for_ political_pow.php ..............................................................................................12 Cumberland County, Maine Sheriffs Office Policy D-243A (Dec. 2009) ......................................................................................................... 4 D. Rosenblum, Trapped in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism, 6 Mich. J. Gender & L. 499 (2000) ................16 D. Seil, The Diagnosis and Treatment of Transgendered Patients, 8 J. Gay & Lesbian Psychotherapy 99 (2004) .............................................. 11, 21 iv

D. Swaab, A sex difference in the human brain and its relation to transsexuality, 378 Nature 68 (Nov. 2, 1995) ...............................................13 District of Columbia Department of Corrections Program Statement No. 4020.3A (Apr. 12, 2010), available at http://doc.dc.gov/doc/lib/doc/program_statements/4000/ PS_4020_3A_GenderClassificationandHousing041210.pdf .................... 4, 16, 17 District of Columbia Office of the Inspector General Management Alert Report, DOC Policy on Inmate Gender Identification May Violate District Regulations (Apr. 4, 2008) ................................................ 17, 18 G. Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender People in Detention, 18 Temp. Pol. & Civ. Rts. L. Rev. 515 (2009) .................................................... 3 J. Allen, A Quest for Acceptance: The REAL ID Act and the need for Comprehensive Gender Recognition Legislation in the United States, 14 Mich. J. Gender & L. 169 (2008) ..................................................................11 J. Grant, L. Mottet, J. Tanis, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011) .......................................12 King County, Washington, Policy 6.03.007 (Aug. 31, 2006), available at http://www.aclu.org/files/images/asset_upload_file70_27801.pdf ...................... 4 L. Feinberg, We Are All Works in Progress, in Trans Liberation: Beyond Pink or Blue (1998) .............................................................................11 Letter of May 27, 2008 from G. Velasquez to C. Willoughby ...............................18 M. Katherine Baird Darmer, Symposium: LatCrit XIV Outsiders Inside: Critical Outsiders Theory and Praxis in the Policymaking of the New American Regime, October 1-4, 2009: Structural Barriers : Keeping Outsiders Out: Immutability and Stigma: Towards a More Progressive Equal Protection Rights Discourse, 18 Am. U.J. Gender Soc. Pol'y & L. 439 (2009) .......................................................................... 13, 14 v

National Prison Rape Elimination Commission Report (June 2009) ........... 3, 19, 21 National Standards to Prevent, Detect, and Respond to Prison Rape, 76 Fed. Reg. 6,248, 6,291 (Feb. 3, 2011) (to be codified at 28 CFR 115.242(c)) .............................................................20 P.M. Frank, et al., Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 J. Clinical Endocrinology & Metabolism 2034 (2000) ........................................................13 S. Bartos, Letting Privates Be Private: Toward a Right of Gender Self-Determination, 15 Cardozo J.L. & Gender 67 (2008) ...................11 V. Jenness, et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault (2007). ..................................2, 23 Virginia Department of Corrections Monthly Population Summary (October 2011), available at http://www.vadoc.state.va.us/about/facts/research/newpopsum/2011/oct11popsummary.pdf .................................................................21 W. Eskridge, Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U.L. Rev. 703 (1997) ...................................................11

Rules Fed. R. App. P. Rule 29(g) ....................................................................................25 Fed. R. Civ. Pro. Rule 12(b)(6) .............................................................................. 5

vi

STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE Amicus curiae D.C. Trans Coalition (DCTC) is an unincorporated nonprofit association dedicated to fighting for human rights, dignity, and liberation for transgender, transsexual, and gender-diverse (hereinafter trans) people in the District of Columbia area. DCTC organizes in the D.C., Maryland and Virginia areas to spread awareness, increase trans peoples access to resources and information, and ensure that trans peoples experiences are treated with respect and dignity. DCTC works toward changing laws, policies and services to improve the lives of trans people and realize gender self-determination for the local trans communities. DCTC also provides workshops and trainings designed to educate trans communities on the law so that they are prepared to defend their rights and live without fear. DCTC has a strong interest in the outcome of any lawsuit that affects the rights of trans inmates in the D.C., Maryland or Virginia area. The source of DCTCs authority to file this brief is a December 9, 2011 order of this Court [ECF dkt: 10]. No partys counsel authored this brief in whole or in part. No party or partys counsel contributed money that was intended to fund the preparation or submission of this brief. No person contributed money that was intended to fund the preparation or submission of this brief. vii

SUMMARY OF THE ARGUMENT Plaintiff-Appellant raises significant constitutional issues relating to the housing of transgender inmates by the Virginia Department of Corrections. In rejecting Appellants Equal Protection challenge, the trial court held that it can envision the morass of assigning inmates housing by judging gender without regard to sex; the result presumably is an incredibly costly and astonishingly ineffective correctional system. Thus, the VDOC clearly has a sufficiently important governmental interest in separating inmates by sex. Slip op. at 12. The trial court was apparently unaware that a system which considers an inmates sex as one among many factors has been successfully implemented in jurisdictions such as D.C. without the parade of horribles the trial court predicted would occur, and that such an individualized classification system, which prisons and jails must have in any event, has been recommended by the National Prison Rape Elimination Commission. Additionally, the trial could found that her legal claim is flawed because plaintiff, with male genitalia, is treated the same as those similarly situated inmates with male genitalia, all of whom have varying degrees of masculine or feminine gender; they are housed according to sex. Inmates with male genitalia are housed together and inmates with male genitalia are not housed in a female facility. Slip op. at 11. However, the trial court failed to apply the proper level of scrutiny and to

recognize that Ms. DeLonta is being treated differently than similarly situated non-transgender and gender-conforming women. ARGUMENT Virginia Department of Corrections (VDOC) facilities are sex-segregated and house prisoners according to their genitalia.1 Transgender women like Ms. DeLonta who live and identify as women, but who have male genitalia, are placed in mens facilities. Housing transgender women in mens facilities sets the stage for sexual violence against transgender prisoners, particularly those who, like Ms. DeLonta, have breasts2. In California, for example, fifty-nine percent of transgender women housed in mens facilities have been sexually assaulted while incarcerated, compared to just four percent of a random sample of people incarcerated in Californias mens prisons.3 In the hypermasculine world of mens prisons, transgender women are easy targets for male inmates to abuse and sexually assault. Placement in protective custody presents a different set of problems. Transgender inmates in protective custody must live in isolation, and must accept

1 2

Complaint, attachment 1 at 54. Complaint, attachment 2 at 10 (grievance by Ms. DeLonta noting that she has breasts). 3 V. Jenness, et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault, at 3 (2007). 2

restraints on their mobility and access to services.4 In Tates v. Blanas, 2003 U.S. Dist. LEXIS 26029 (E.D. Calif. Mar. 11, 2003), the district court considered the constitutionality of a prisons policy of automatically housing transgender pretrial detainees in T-Sep (total separation). The court explained, Prison officials cannot mistreat transgenders or deny them the benefits available to all other inmates, simply because of a bias against transgenders. Id. at *27. The court found that automatic segregation of all transgender detainees needlessly deprive[s] transgender pretrial detainees of basic human needs and of privileges available to all other inmates, and [] needlessly subject[s] transgender inmates to harsh conditions. Id. at *28. Legal scholars have argued that [i]nvoluntary segregation from other people in detention is in reality one of the greatest threats to the safety of TIGNC [transgender, intersex, and gender nonconforming] people in these systems.5 There are many reasons that segregation is detrimental to inmates: it

See generally, G. Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender People in Detention, 18 Temp. Pol. & Civ. Rts. L. Rev. 515 (2009); National Prison Rape Elimination Commission Report (June 2009) at 79 (the living conditions in protective custody may be as restrictive as those imposed to punish prisoners. In a typical protective custody unit, individuals are placed in maximum-security cells. Privileges are greatly reduced, with as little as an hour a day outside the cell for exercise, extremely limited contact with other prisoners, and reduced or no access to educational or recreational programs.) 5 Arkles, supra note 4 at 518. 3

disrupts the building of positive relationships, the cells are usually tiny and isolation from human contact is itself psychologically damaging.6 A policy of housing inmates according to their genitalia systematically places transgender individuals at great risk and denies them their dignity. Individualized placement decisions, which prisons and jails regularly engage in anyway for all prisoners, are necessary to ensure the physical and emotional safety of transgender inmates. Several jurisdictions, including the District of Columbia, Cumberland County, Maine, and King County, Washington, have successfully implemented policies pursuant to which transgender inmates are housed on the basis of a combination of factors including security and safety needs, housing availability, and gender identity.7 This individualized approach to housing transgender inmates has also been recommended by the National Prison Rape Elimination Commission and adopted in the proposed rules implementing the Prison Rape Elimination Act.

6 7

Arkles, supra note 4 at 538-41. See District of Columbia Department of Corrections Program Statement No. 4020.3A (Apr. 12, 2010), available at http://doc.dc.gov/doc/lib/doc/program_statements/4000/PS_4020_3A_GenderClas sificationandHousing041210.pdf; Cumberland County, Maine Sheriffs Office Policy D-243A (Dec. 2009); King County, Washington, Policy 6.03.007 (Aug. 31, 2006), available at http://www.aclu.org/files/images/asset_upload_file70_27801.pdf. 4

Jurisdiction Because the trial court dismissed Ms. DeLontas Complaint without prejudice, this Court needs to make an initial determination as to whether the trial courts order is a final order subject to appeal. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993). The courts order in this case is finalit makes clear that Ms. DeLonta was not free to continue the litigation by simply amending her Complaint, and therefore the dismissal was a final order over which this Court has jurisdiction on appeal. Id.

Standard of Review Review of a dismissal under 28 USC 1915A for failure to state a claim is governed by the same standard as dismissal under Fed. R. Civ. Pro. Rule 12(b)(6), which is de novo. Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002).

Standard for adjudication of Equal Protection claims A plaintiff making a claim under the Equal Protection clause must first demonstrate that [s]he has been treated differently from others with whom [s]he is 5

similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).

Ms. DeLonta is not treated the same as similarly situated non-transgender and gender-conforming female inmates Most women incarcerated by VDOC are housed with other women. However, some women, solely by virtue of the fact that their bodies do not look like what prison administrators expect a female body to look like (i.e., possessing female genitals), are housed with men. Ms. DeLonta is being treated differently from other women8 who are similarly situated simply because she is transgender and possesses male genitals, an ironic fact given that VDOC has been denying Ms. DeLontas requests for sexual reassignment surgery which would refashion her male genitals into female genitals. The trial court completely missed the point when it held that plaintiff, with male genitalia, is treated the same as those similarly situated inmates with male

Complaint, attachment 2 at 14 (grievance letter requesting housing in a female facility as is done for any other female.) 6

genitalia, all of whom have varying degrees of masculine or feminine gender; they are housed according to sex. Inmates with male genitalia are housed together, and inmates with male genitalia are not housed in a female facility. Slip op. at 11. Similar logic was advanced by the Commonwealth in Loving v. Virginia, 388 U.S. 1, 8 (1967), in which it was argued that because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The Supreme Court rejected this equal application approach, holding that the fact the statute contained racial classifications was enough to subject it to strict scrutiny. Id. VDOCs policy houses non-transgender women with other women, and houses transgender women with men. The fact that this discriminatory policy is applied equally to both sexes (e.g., transgender women are housed in mens prisons and transgender men are housed in womens prisons) does not relieve the government of justifying its restriction under the appropriate standard of review. Further, it is circular reasoning to rely on the fact that inmates with male genitalia are not housed in a female facility (slip op. at 11) as a justification for continuing that policy.

VDOCs policy intentionally discriminates against transgender women A discriminatory purpose need not be express or appear on the face of the statute, Wash. v. Davis, 426 U.S. 229, 241 (1976), and a plaintiff need not show that a discriminatory reason was the sole reason for the disparate treatment, just that it was a motivating one, Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 (1977). Disparate impact may provide a starting point for the analysis, with historical background and legislative or administrative history providing further evidence of intentional discrimination. Id. at 266-68. Other times, there is such a clear pattern, unexplainable on nondiscriminatory grounds, which emerges from the effect of a facially neutral statute, to permit a finding of discriminatory purpose. Id. at 266. VDOCs policy of housing inmates according to genitalia is intentionally designed to discriminate against transgender inmates. Transgender inmates are not simply disproportionately impacted by the discriminatory policy they are the only ones singled out by it. Only transgender inmates are housed inconsistently with their gender identity9 and placed into situations of unavoidable nudity in which they are surrounded by members of the opposite sex, such as showers and

Complaint, attachment 1 at 54. 8

bathrooms10. See Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981) (recognizing, in prison context, that involuntary exposure of the[ir genitals] in the presence of people of the other sex may be especially demeaning and humiliating.) VDOCs current policy is part of a history of invidious discrimination against transgender inmates. VDOC has previously singled out transgender inmates (i.e., those with gender identity disorder), for exclusion from appropriate medical treatment for their condition. See DeLonta v. Angelone, 330 F.3d 630, 632 (4th Cir. 2003). The treatment decisions for Ms. DeLonta were made for political rather than medical reasons.11 After this Court ordered a remand in Angelone, VDOC entered into a settlement agreement pursuant to which it agreed to house transgender inmates in the most appropriate prison environment reasonably available.12 VDOCs current policy of housing inmates strictly according to their genitals does not take into account the appropriateness of any particular prison environment, does not comport with the settlement agreement, and indicates an intentional disregard for the rights of transgender inmates.

10

Ms. DeLonta was forced to have her body exposed to male inmates while using a bathroom which had no door or enclosure. See Complaint, attachment 2 at 18. 11 Complaint, attachment 1 at 43. 12 Lawsuit Prompts New DOC Policy on Medical Treatment for Transgendered Prisoners, available at http://acluva.org/1623/lawsuit-prompts-new-doc-policyon-medical-treatment-for-transgendered-prisoners/. 9

Heightened scrutiny applies to Ms. DeLontas claims When government action restricts a fundamental right or discriminates against members of a protected class, heightened scrutiny is required. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). If a restriction burdens a protected class, the fact that the Equal Protection challenge arises in a prison context does not alter the appropriate standard of review. Johnson v. California, 543 U.S. 499, 509 (2005). This Court must therefore determine whether Ms. DeLonta is a member of a protected class. The Supreme Court has recognized that heightened scrutiny applies to classifications based on membership in a group that comprises a discrete and insular minority. Graham v. Richardson, 403 U.S. 365, 372 (1971). Heightened scrutiny is particularly appropriate where members of a group have been subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976). Other relevant factors include whether the trait that defines membership in the class is an immutable characteristic determined solely by the accident of birth and whether the trait bears a relation to ability to perform or contribute to society. Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

10

Transgender individuals comprise a discrete and insular minority.13 Although estimates vary, a commonly cited statistic is that only one in eighteen thousand males and one in fifty-four thousand females are estimated to be transgender.14 Transgender individuals have historically been subject to unequal treatment. At least two states and dozens of municipalities have passed laws criminalizing dressing as a member of the opposite sex.15 Transgender individuals have long been victims of brutal hate crimes, subjected to workplace discrimination, institutionalized, and harassed by police and other citizens as they go about their business.16 This unequal treatment continues to the present day. A recent survey found that 26% of trans respondents had lost a job due to being transgender or gender non-conforming, 90% experienced harassment, mistreatment or

13

S. Bartos, Letting Privates Be Private: Toward a Right of Gender SelfDetermination, 15 Cardozo J.L. & Gender 67, 67 (2008)(If ever the problems of a discrete and insular minority needed help from a more searching judicial inquiry, those of transgendered people do. In contrast to the federal protections gays and lesbians have received, transgendered people remain one of the most marginalized - and therefore insecure - groups in America); J. Allen, A Quest for Acceptance: The REAL ID Act and the need for Comprehensive Gender Recognition Legislation in the United States, 14 Mich. J. Gender & L. 169, 176 (2008)(transgender people remain a discrete and insular minority.) 14 D. Seil, The Diagnosis and Treatment of Transgendered Patients, 8 J. Gay & Lesbian Psychotherapy 99, 100 (2004). 15 W. Eskridge, Privacy Jurisprudence and the Apartheid of the Closet, 19461961, 24 Fla. St. U.L. Rev. 703, 723-24 (1997). 16 L. Feinberg, We Are All Works in Progress, in Trans Liberation: Beyond Pink or Blue, 1, 5-10 (1998). 11

discrimination on the job or hiding who they are to avoid it, 61% had been the victim of physical assault, and 64% had been the victim of sexual assault.17 Transgender youth also face extreme harassment. A 2009 study found that 90% percent of transgender students heard negative remarks about someones gender expression sometimes, often, or frequently in school; 65% of transgender students felt unsafe in school because of their gender expression; and over half of transgender students had experienced physical harassment in school in the past year because of their gender expression.18 Transgender individuals comprise a politically powerless group in need of judicial protection. There has never been an openly transgender president, vicepresident, member of congress, federal judge, cabinet-level appointee, or governor. In 2007, out of more than a half-million elected officeholders nationwide, fewer than a dozen were openly transgender.19 Transgender individuals also face structural barriers to voting because they are often turned away from polling places

17

J. Grant, L. Mottet, J. Tanis, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011). 18 Harsh Realities: The Experience of Transgender Youth in Our Nations Schools, Gay, Lesbian, and Straight Education Network (2009) at x-xi. 19 C. Wolfe, Trans candidates fight for political power, The Bilerico Project (Dec. 6, 2007), available at http://www.bilerico.com/2007/12/trans_candidates_fight_for_political_pow.php 12

when their adopted name does not match their birth name,20 the picture on their identification does not match their appearance, they have multiple forms of identification with conflicting information, or they encounter discrimination. Although there is much scientific evidence that being transgender is an immutable characteristic in the sense of being impossible to change,21 recent scholarship and court opinions have deemphasized a literal finding of immutability as being unnecessary for a finding that a group is a protected class.22 Instead, immutability may be understood to mean a trait that is such a core attribute of self

20

C. Kilgannon, Fighting for the Rights of Transgender Voters, New York Times (Nov. 4, 2008), available at http://cityroom.blogs.nytimes.com/2008/11/04/once-a-man-now-a-woman-tryingto-vote/. 21 D. Swaab, A sex difference in the human brain and its relation to transsexuality, 378 Nature 68-70 (Nov. 2, 1995); P.M. Frank, et al., Male-toFemale Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 J. Clinical Endocrinology & Metabolism 2034, 2034 (2000). 22 M. Katherine Baird Darmer, Symposium: LatCrit XIV Outsiders Inside: Critical Outsiders Theory and Praxis in the Policymaking of the New American Regime, October 1-4, 2009: Structural Barriers: Keeping Outsiders Out: Immutability and Stigma: Towards a More Progressive Equal Protection Rights Discourse, 18 Am. U.J. Gender Soc. Pol'y & L. 439, 452-53 (2009); In re Marriage Cases, 183 P.3d 384 (Cal. 2008), superseded in part by amendment, C.A. Const. art. 1, 7.5 (the part of the Courts holding stating that gays and lesbians are a suspect classification was not affected by the amendment); see also Strauss v. Horton, 207 P.3d 48, 102 (Cal. 2009) (asserting that the court's determination that gays and lesbians are a suspect classification for state equal protection purposes remains good law, albeit limited in impact by Proposition 8). 13

that forcing people to change it would be impractical or normatively wrong.23 Ones gender identity clearly fits this definition and transgender individuals deserve to not be discriminated against or face violence simply because they are part of a politically unpopular group. The fact of being transgender has no bearing on an individuals ability to contribute to society. Notable transgender individuals include keyboard artist Wendy Carlos,24 law professor Dean Spade,25 and Sarah Muirhead-Allwood, the Queen Mothers hip surgeon.26 Even if this Court refuses to recognize transgender individuals as comprising a suspect or quasi-suspect class, Ms. DeLonta is still a member of a protected class of gender non-conforming individuals because she does not conform to societys expectation of what a female body should look like. See Barnes v. City of
23 24

Darmer, supra note 22at 453. Wendy Carlos is the composer of the movie soundtracks for A Clockwork Orange, The Shining, and Tron. She was born as Walter Carlos. Composer Changes More than Tune, New York Magazine, Vol. 12, No. 14 (Apr. 2, 1979). 25 Prof. Spade teaches at Seattle University School of Law. Prof. Spade founded the Sylvia Rivera Law Project in 2002 to provide free legal services to low-income transgender, intersex, and gender non-conforming people and/or people of color. He was named by Utne Reader as one of 50 Visionaries Who are Changing Your World in 2009. See About, available at http://www.deanspade.net/about; 50 Visionaries Who are Changing Your World, Utne Reader (November-December 2009). 26 My sex-change plans, by Queen Mothers surgeon, The Daily Mail (Apr. 1, 1996). 14

Cincinnati, 401 F.3d 729, 739 (6th Cir. 2005) ([t]he Citys claim that [the plaintiff] did not have standing to bring an equal protection claim based on his status as a transsexual also fails, as [the plaintiff] is a member of a protected class whether as a man or a woman). In the recent case of Glenn v. Brumby, 2011 U.S. App. LEXIS 24137 at *10 (11th Cir. Dec. 6, 2011), the court held that discrimination against a transgender individual because of her gendernonconformity is sex discrimination, whether it's described as being on the basis of sex or gender. The court found such discrimination to be a violation of the Equal Protection Clause, applying intermediate scrutiny. Id. at *6, *8. Under intermediate scrutiny applied to restrictions based on sex or gender, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests entirely on the State. The State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. United States v. Virginia, 518 U.S. 515, 533 (1996)(internal quotation marks and citations omitted).

15

VDOCs policy on housing transgender inmates does not survive scrutiny Regardless of the level of scrutiny applied, Ms. DeLonta has stated a claim that VDOCs policy27 is unconstitutional. There is a substantial body of scholarly literature criticizing the practice of automatically housing inmates based on genitals28 and any arguments about the necessity for this rigid practice are belied by the success of other jurisdictions in making individualized determinations of housing placement for transgender inmates. In the District of Columbia, for example, when Department of Corrections staff learns that an inmate is transgender, a decision on the inmates housing placement is made based on the inmates safety/security needs, housing availability, gender identity, and genitalia, rather than on genitalia alone.29 The inmate may be placed in general

Evidence in the record suggests that the VDOCs policy might be to house inmates according to their sex at birth, rather than their genitals. [ECF dkt: 8-2] (newspaper article quoting VDOC director Harold Clarke, inmates are housed according to their sex at birth, not anatomy.) If this is true, VDOCs policy is particularly irrational and plainly motivated by animus towards transgender individuals. There is no conceivable legitimate governmental interest in housing inmates according to the sex they used to be. 28 C. Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1219, 1247-48 (2004); D. Rosenblum, Trapped in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism, 6 Mich. J. Gender & L. 499, 522-24 (2000); Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners at 7, Stop Prisoner Rape & ACLU National Prison Project (2005), available at http://www.justdetention.org/pdf/stillindanger.pdf. 29 Supra note 7 at (2)(b). 16

27

population, administrative segregation or protective custody, depending on the individuals circumstances.30 These individualized housing determinations allow the Department of Corrections to provide services in a humane and respectful manner to transgender and intersex detainees while ensuring that they are processed and housed safely and efficiently to the greatest extent possible.31 The D.C. Department of Corrections individualized housing policy was adopted in response to a report from the D.C. Office of the Inspector General which found that a rigid policy of housing inmates according to their genitals may discriminate against transgender inmates and may increase the risk of harassment and assault against certain inmates.32 The Inspector Generals report noted that as a result of the Department of Corrections policy at that time, which required housing inmates according to their genitals, a self-identified female was forced to shower with male inmates, potentially placing her at risk of assault.33 The Inspector Generals report also cited to a document released by Amnesty International which stated that transgender women in particular may be at heightened risk of torture or ill-treatment if they are placed in male jails or holding
30 31

Supra note 7 at (10)(d) and (e). Supra note 7 at (2)(a). 32 District of Columbia Office of the Inspector General Management Alert Report, DOC Policy on Inmate Gender Identification May Violate District Regulations (Apr. 4, 2008) at 1. 33 Id. at 2. 17

cells, as such placement may put an individual at risk of physical or sexual assault.34 Finally, the Inspector Generals report explained that the American Correctional Association, when asked for advice in the past, suggested that agencies take into account whether an inmate has begun to physically transition, where the inmate requests to be housed, and where the inmate would be safest, which would avoid litigation.35 In working with the D.C. Department of Corrections to draft a more flexible policy on housing transgender inmates, the Director of the District of Columbia Office of Human Rights reviewed numerous other jail and detention policies and procedures and concluded that these jurisdictions provide evidence that gender identification procedures, which are sensitive to ones gender expression, can be established that would not hinder or otherwise interfere with the institutional process; but, in fact, these policies could decrease the likelihood of discrimination, harassment, and physical or psychological assault.36

Id. at 2, quoting Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual, and Transgender People in the U.S. at 60 (2005), available at http://www.amnestyusa.org/outfront/stonewalled/report.pdf. 35 Supra note 32 at 2. 36 Letter of May 27, 2008 from G. Velasquez to C. Willoughby at 2. 18

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Pursuant to the Prison Rape Elimination Act, 42 USC 15601, et seq., in June 2009 the National Prison Rape Elimination Commission37 issued its report on sexual abuse in correctional and detention facilities nationwide.38 The report explained that mens correctional facilities have very rigid cultures that reward extreme masculinity and aggression and noted that [m]ale-to-female transgender individuals are at special risk.39 Based on the fact that obvious gender nonconformity puts [male-to-female transgender individuals] at extremely high risk for abuse, the Commission requires individualized determinations based on other factors in addition to the persons genital status when determining whether to house transgender individuals in mens or womens facilities. As a result of the Commissions findings, the proposed rules implementing the Prison Rape Elimination Act state: In deciding whether to assign a transgender or intersex resident to a facility for male or female residents, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the residents health and safety, and whether the placement would present management or security problems. National Standards to Prevent, Detect, and Respond to Prison Rape, 76 Fed. Reg. 6,248, 6,291 (Feb. 3,
37

The Commission is chaired by a federal judge, Hon. Reggie B. Walton. Other commissioners include Gustavus A. Puryear IV, Executive Vice President and General Counsel for Corrections Corporation of America. 38 National Prison Rape Elimination Commission Report, supra note 4. 39 Id. at 73. 19

2011) (to be codified at 28 CFR 115.242(c)). When the Proposed Rules are finalized, they will be immediately binding on the Federal Bureau of Prisons, 42 USC 15607(b), and grants of federal money to state correctional institutions will be reduced for noncompliance, 42 USC 15607(c)(2). The district court was apparently unaware of these recent developments. Thus, it made the unfounded assumption that there are legitimate penological interests in housing all inmates according to their genitalia which it identified as the risk of harm to female inmates, of harm to the one male inmate, or of defending legal claims from nearly all other male inmates requesting housing in a female prison. Slip op. at 12. Obviously, the government has a legitimate interest in maintaining the safety of inmates. This interest is not impaired, however, but enhanced, by making individualized housing determinations which take into account the safety of the transgender inmates and the safety of the general population. Such individualized determinations are not likely to overwhelm the system or result in legal claims from nearly all other male inmates (slip op. at 12) if the determinations are only made for transgender inmates, who comprise a tiny fraction of the overall inmate population.40 Further, screening and classification of

VDOCs October 2011 data shows a population of 30,032 inmates. Virginia Department of Corrections Monthly Population Summary (October 2011), available at http://www.vadoc.state.va.us/about/facts/research/new20

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inmates to promote safety and security is already a routine practice and the addition of one more factor such as gender expression is consistent with evolving evidence-based strategies to reduce the risk of sexual abuse.41 Far from dismissing the Complaint for failure to state a claim, the trial court engaged in unwarranted fact-finding when it stated that it can envision the morass of assigning inmates housing by judging gender without regard to sex; the result presumably is an incredibly costly and astonishingly ineffective correctional system. Thus, the VDOC clearly has a sufficiently important governmental interest in separating inmates by sex. Slip op. at 12. If this case is allowed to go forward, the judges hypotheses will be dispelled by the facts.

popsum/2011/oct11popsummary.pdf. Although there is no breakdown by sex, even if all of the inmates are male, there would be approximately two transgender women in the entire system. See supra, note 14. The October 2011 data shows a population at Buckingham Correctional Center, where Ms. DeLonta is housed, of 1,079, meaning that Ms. DeLonta is likely the only transgender woman at the facility. 41 See supra, note 38 at 74-75. 21

Ms. DeLonta has a cognizable Due Process claim42 The Supreme Court has held that state laws or regulations may create a liberty interest protected by the Due Process in freedom from prison conditions that impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson v. Austin, 545 U.S. 209, 223 (2005). Although the safety of inmates and prison officials may make certain regulations necessary, [t]hat necessity, however, does not diminish our conclusion that the conditions give rise to a liberty interest in their avoidance. Id. at 224. When a state seeks to transfer an inmate to housing that impairs the inmates liberty interest, certain process is due to guard against erroneous placement. Id. at 225-27. Three factors must be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 225.

42

Although Ms. DeLonta did not denominate her claim as a Due Process violation, district courts have an obligation to carefully examine pro se inmate complaints to determine whether the facts presented give rise to a claim of constitutional deprivations. Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). 22

The placement of a transgender female inmate in a male correctional facility imposes an atypical and significant hardship on the inmate. The risk of sexual assault faced by transgender women in male correctional institutions is far above the baseline faced by the general population of inmates in male correctional institutions. In California, for example, fifty-nice percent of transgender women housed in mens facilities have been sexually assaulted while incarcerated, compared to just four percent of a random sample of people incarcerated in Californias mens prisons.43 Ms. DeLonta possesses a liberty interest in being free from a housing arrangement that places her at a dramatically higher risk of being sexually assaulted by other inmates. Allowing sexual assault of inmates serves no legitimate penological interest. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Individuals, whether incarcerated or not, have an extremely important interest in being free from sexual assault. The procedure used by VDOC do not simply pose a high risk of erroneous placement of transgender women in inappropriate facilities, it guarantees such errors will take place. By failing to provide any individualized determination as to whether a female transgender inmate should be housed in a mens or womens
43

Jenness, supra note 3 at 3. 23

facility, and providing no mechanism for appeal from an adverse determination, VADOCs policy falls woefully short of the requirements of the Due Process Clause. Finally, the creation of adequate procedures to determine the proper facility for housing transgender inmates would impose little administrative burden beyond those already associated with classifying inmates in general. VDOC would also be likely to spend less money defending lawsuits and providing medical care to transgender inmates if individual housing determinations are made which reduce the likelihood of sexual assault.

Ms. DeLonta has a cognizable Eighth Amendment claim44 Ms. DeLonta, in seeking an injunction, need not await a tragic event such as an actual assault before obtaining relief. Farmer, 511 U.S. at 845. Instead, she may seek[] injunctive relief to prevent a substantial risk of serious injury from ripening into actual harm. Id. The risk of sexual assault from another inmate resulting from her being housed in a male correctional facility poses such a substantial risk that Ms. DeLonta should be afforded relief. Defendants are

44

See supra, note 42. 24

clearly on notice from cases such as Farmer, 511 U.S. 825 and from the grievances filed by Ms. DeLonta, that housing her, a feminine-appearing transgender woman, in a male correctional facility, presents a substantial risk of serious injury. REQUEST FOR ORAL ARGUMENT Pursuant to Fed. R. App. P. Rule 29(g), DCTC respectfully requests that it be allowed to participate in oral argument in this appeal and submits that the Courts decisional process will be aided by oral argument given the complexity of the legal issues involved in this case. /s/ Jeffrey Light Jeffrey Light Law Office of Jeffrey Light 1712 Eye St., NW Suite 915 Washington, DC 20006 202-277-6213 Jeffrey.Light@yahoo.com Attorney for Amicus DCTC Dated: December 16, 2011

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) because this brief contains 5,362 words, excluding the parts of the brief exempted by Fed. R. App. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionately spaced typeface using Microsoft Word 2007 in 14 pt. Times New Roman.

/s/ Jeffrey Light Jeffrey Light Law Office of Jeffrey Light 1712 Eye St., NW Suite 915 Washington, DC 20006 202-277-6213 Jeffrey.Light@yahoo.com Attorney for Amicus DCTC Dated: December 16, 2011

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CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing BRIEF OF AMICUS CURIAE D.C. TRANS COALITION IN SUPPORT OF APPELLANT URGING REVERSAL was served through the Courts electronic filing system as follows: Rebecca Kim Glenberg, rglenberg@acluva.org, affine@aclu.org, Counsel for amicus curiae American Civil Liberties Union of Virginia and by Priority mail as follows: Ophelia DeLonta #1014174, Appellant Buckingham Correctional Center P.O. Box 430 Dillwyn, VA 23936-0000 Joshua Block, Counsel for amicus curiae American Civil Liberties Union American Civil Liberties Union 18th Floor 125 Broad Street New York, NY 10004-2400 Office of the Attorney General 900 E. Main Street Richmond, VA 23219 /s/ Jeffrey Light Jeffrey Light Law Office of Jeffrey Light 1712 Eye St., NW Suite 915 Washington, DC 20006 202-277-6213 Jeffrey.Light@yahoo.com Attorney for Amicus DCTC Dated: December 16, 2011

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