Federal Judge Questions Constitutionality of Exclusion of “Gender Identity Disorders” from ADA

“This case has legs not only for transgender inmates, but for all transgender people seeking protection under the ADA and VRA.”

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By William J. Rold

This is one to watch. In Doe v. Mass. Dep’t of Correction, a transgender inmate identified as “Jane Doe” argues that the state has failed to make “reasonable accommodation” to her gender identity by refusing to transfer her to the women’s prison. She invokes protections under both the Americans with Disabilities Act (ADA) and the Vocational Rehabilitation Act (VRA). She also alleges violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

The defendants moved to dismiss the Complaint for failure to state a claim under F.R.C.P. 12(b)(6). U.S. District Judge Richard G. Stearns heard arguments on two aspects of the ADA claim: (1) whether Doe’s diagnosis of “gender dysphoria” places her within the exclusionary language of the ADA (denying protection under the ADA for “transvestism, transsexualism, pedophilia, gender identity disorders not resulting from physical impairments, or other sexual behavioral disorders” — 42 U.S.C. § 12211(b)(1); and (2) whether, assuming that it does, “the statutory exclusion can withstand constitutional scrutiny.” The defendants declined to advocate for the exclusion, deferring to the United States Attorney General to defend the statute.

Agreeing that the constitutional question was “substantial,” Judge Stearns certified the question to the Attorney General under F.R.C.P. 5.1(b) and 28 U.S.C. § 2403. Judge Stearns found that the statutory and constitutional questions were “overlapping,” and he therefore deferred ruling on the motion to dismiss until the Attorney General decided whether or not to intervene.

Doe also sought a preliminary injunction, directing defendants to: 1) transfer Doe to MCI-Framingham [a DOC facility for women]; 2) enjoin Defendants from using male correctional officers to conduct strip searches of Jane Doe, except in exigent circumstances; (3) enjoin Defendants from forcing Jane Doe to shower in the presence of men and with a shower curtain that does not adequately cover her; (4) enjoin Defendants from treating Jane Doe differently than other women held by the DOC; (5) train all staff on how to appropriately accommodate, treat and communicate with individuals with Gender Dysphoria within 60 days of this order; (6) enjoin Defendants from using male pronouns when speaking to or about Jane Does; (7) enjoin Defendants from referring to Jane Doe by her former male name (or any abbreviated version thereof); and (8) refer to Jane Doe by her chosen female name. Judge Stearns granted some preliminary relief without an evidentiary hearing

Apparently, Massachusetts prison officials had already started to accommodate Doe in the men’s prison, at least sufficiently so that Judge Stearns could characterize the relief not as an affirmative preliminary injunction but rather to “preserve the status quo and to insure that Doe has the continuing benefit of the accommodations DOC has already provided.” He wrote: “Mindful of Doe’s claim that ‘irreparable injury will be likely absent an injunction,’” citing %Respect Maine PAC v. McKee%, 622 F.3d 13, 15 (1st Cir. 2010), he ordered, pending a full adjudication on the merits: (1) use of female corrections officers for searches, consistent with staffing concerns; (2) individual celling for Doe with separate shower time, subject to exigent circumstances; and (3) an officer to keep males from the shower area when Doe is showering to the extent staffing allows.

Judge Stearns denied Doe’s request for a transfer, mandated training, and other preliminary relief, without prejudice, because it was “premature and should await the resolution of the constitutional issue.” He nevertheless “encouraged” the defendants “to take further reasonable steps to meet Jane Doe’s requests for safe accommodations” and to review their internal policies in the interim.

It is unusual to see a preliminary injunction in a prison transgender case — even one characterized as merely preserving the status quo — if only because the status quo is rarely worth preserving. But this is a judge who sees the water glass partly full and is trying to add to its volume. The tone overall is quite positive.

This case has legs not only for transgender inmates, but for all transgender people seeking protection under the ADA and VRA. Nationwide amici should appear and those with leverage with the Department of Justice should urge an expansive ruling in favor of transgender rights. This is a chance to challenge directly the continuing outrageous grouping of LGBT people with pederasts that still exists in places in the law, to educate the judiciary, and to rid the ADA of its transphobic exclusion.

Doe is fully lawyered-up. Lead counsel is Tiffiney F. Carney, of Goodwin Procter, LLP, Washington, D.C.; also appearing for Doe are attorneys from Goodwin Procter’s Boston office; GLBTQ Legal Advocates & Defenders (Boston), and Prisoners’ Legal Services. There are amici for Doe from Transgender Equality, Massachusetts Transgender Political Coalition, Disability Rights Education and Defense.

*This article appears in LGBT BAR NY’sLGBT Law Notes,” the most comprehensive monthly publication available summarizing legal and legislative developments affecting the LGBT community here and abroad.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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