LeGaL urges Ninth Circuit Court of Appeals to rule that transgender status qualifies for strict scrutiny under U.S. Constitution

Today, the LGBT Bar Association of Greater New York (LeGaL) joined a friend of the court brief in Quine v. Kernan.

This is an appeal that presents an important civil rights issue that the Ninth Circuit Court of Appeals is considering for the first time: whether classifications based on transgender status should be subject to strict scrutiny under the Equal Protection Clause.

Transgender Law Center is representing Shiloh Quine, a transgender woman held in a California men’s prison.

Shiloh was denied gender-affirming surgery as well as clothing and cosmetics that are restricted, under state prison policy, to inmates in women’s facilities. We are arguing that the prison system’s discriminatory actions and policies violate fundamental constitutional guarantees, including the Eighth Amendment prohibition of cruel and unusual punishment and the Equal Protection Clause.

In her complaint, Shiloh requested an order requiring that the California Department of Corrections and Rehabilitation (CDCR) provide her with sex reassignment surgery as a medically necessary treatment for her gender dysphoria and access to commissary items available to CDCR inmates housed in female facilities

LeGaL, along with National Center for Lesbian Rights, Lambda Legal Defense and Education Fund, Inc., the National Center for Transgender Equality, the National Trans Bar Association, and GLBTQ Legal Advocates & Defenders are asking the Ninth Circuit to hold that transgender status qualifies for strict scrutiny under the U.S. Supreme Court’s well-established framework.

• Transgender people have suffered a long history of discrimination.
• Being transgender has no bearing on one’s ability to perform in or contribute to society.
• Being transgender is an immutable characteristic and an integral part of identity that defines a discrete group.
• And Transgender people are a small and politically vulnerable minority.

The district court in this case applied of intermediate scrutiny to the California Department of Corrections and Rehabilitation’s denial of particular property items to transgender women housed in men’s prisons. In so doing, the district court’s held that the 1987 case, Turner v. Safley, did not prevent the application of heightened scrutiny to gender-based classifications in the prison context.

LeGaL is urging the Ninth Circuit to hold the transgender status warrants the application of strict scrutiny under the US Constitution, or alternatively, to affirm the district court’s ruling that transgender status warrants intermediate scrutiny.