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Doe v. Massachusetts Department of Correction

United States District Court, D. Massachusetts

June 14, 2018




         Plaintiff Jane Doe is a transgender woman, currently housed at MCI-Norfolk, a men's prison overseen by the Massachusetts Department of Correction (DOC). Doe brought this Complaint against the DOC and several of its officials[1], alleging that she has been discriminated against in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (ADA), and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. The Complaint alleges that defendants have failed to make reasonable accommodations of her Gender Dysphoria (GD) disability. It also alleges violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and violations of the Federal Civil Rights Act, 42 U.S.C. § 1983.

         The defendants moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Doe countered with a Motion for a Preliminary Injunction, seeking among other forms of relief a transfer to MCI-Framingham, a Massachusetts women's prison. The court heard oral argument on both motions on February 28, 2018. At that hearing, a principal issue was whether Doe's GD fits within the ADA's exclusion of “transvestism, transsexualism, pedophilia, gender identity disorders not resulting from physical impairments, or other sexual behavioral disorders” from the definition of “disability, ” 42 U.S.C. § 12211(b)(1), and if so, whether the exclusion is constitutional as applied to Doe.

         The court, deeming the constitutional question to be substantial, certified a question to the U.S. Attorney General pursuant to Fed.R.Civ.P. 5.1(b), and 28 U.S.C. § 2403, see Dkt #57, and reserved ruling on the defendants' Motion to Dismiss. However, recognizing the exigencies underlying Doe's claim, the court granted her Motion for a Preliminary Injunction in part, ordering the defendants - whenever feasible and consistent with the DOC's applicable collective bargaining agreements and staffing availability - to: (1) utilize female corrections officers when conducting strip searches of Doe; (2) to make permanent the arrangement permitting Doe to shower at different times than male inmates; and (3) to station a corrections officer as a privacy guard while Doe showered. See Dkt #59.

         On the DOC's Motion for Clarification, the court agreed to two minor adjustments of its order: first, that Doe be allowed shower time during prison lockdowns; and second, that in those instances where two female guards were not available to strip search Doe, that a male guard be permitted to search Doe's lower body, while a female guard searched her torso. See Dkt #s 63 & 64. The court recognized Doe's contention that the bifurcated strip search risked exacerbating her GD, see Dkt #66, but explained that its purpose was to provide Doe with the broadest relief possible while maintaining the status quo ante to the extent possible while awaiting a full resolution of the DOC's Motion to Dismiss and the consideration of any intervention by the Department of Justice (DOJ).

         On May 30, 2018, the DOJ, after requesting and receiving an extension of time to respond, see Dkt #71, informed the court that it would not intervene in Doe's case, see Dkt #77. The court therefore considers the DOC's Motion to Dismiss to be ripe and will proceed on the merits.[2] For the reasons to be explained, the Motion to Dismiss will be denied.


         The following facts are taken from the Doe's well-pleaded Complaint.[3]Jane Doe[4] is a 53-year old transgender woman serving a three- to four-year sentence at MCI-Norfolk for a nonviolent drug offense. Compl. ¶¶ 24, 30. Although anatomically born a male - and assigned that gender at birth - Doe experienced serious emotional and mental health issues as a child caused by tension between her assigned gender and her gender identity. Id. ¶ 25.

         As a teenager, Doe was diagnosed as suffering from Gender Identity Disorder (GID). Id. ¶ 26. At her doctor's recommendation, she began gender transition therapy, id. ¶ 27, including a course of hormone treatment, which she has continued to this day. Id. ¶¶ 27, 46. Prior to her incarceration, Doe lived her life as a female, with her friends and family referring to her by her preferred female name. Id. ¶¶ 24, 28. Doe's Massachusetts Identity Card lists her as a woman, and she is in the process of obtaining a court order legalizing a change of her birth name to her chosen female name. Id. ¶ 29. The DOC in its pleadings does not dispute the sincerity of Doe's belief that she is, in fact, a woman.

         A growing consensus in the medical and psychiatric community now regards Doe's condition, although diagnosed in her teenage years as GID, as more accurately classified as GD, a rare but serious medical condition. Id. ¶ 2. GD supplanted GID in the American Psychiatric Association's (APA) Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).[5] GD is defined in DSM-V as follows:

A. A marked incongruence between one's experienced / expressed gender and assigned gender, of at least six months' duration, as manifested by at least two of the following:
1. A marked incongruence between one's experienced / expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).
2. A strong desire to be rid of one's primary and / or secondary sex characteristics because of a marked incongruence with one's experienced / expressed gender (or in young adolescents, a desire to prevent the development of the anticipated sex characteristics).
3. A strong desire for the primary and / or secondary sex characteristics of the other gender.
4. A strong desire to be of the other gender (or some alternative gender different from one's assigned gender).
5. A strong desire to be treated as the other gender (or some alternative gender different from one's assigned gender).
6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one's assigned gender).

         B. The condition is associated with clinically significant distress or impairment in social, occupational or other important areas of functioning.

         Persons diagnosed with GD often experience bouts of negative self-esteem, which manifests itself in anxiety, depression, and suicidality. Compl. ¶¶ 2o, 21. They also face an increased risk of other mental disorders, as well as a sense of stigmatization and victimization. Id. The APA treatment protocol for GD recommends “counseling, cross-sex hormones, gender reassignment surgery, and social and legal transition” from a patient's sex as assigned at birth to the sex associated with his or her gender identification. Compl. ¶ 23. As part of her treatment regime, Doe began wearing girls' clothing as a youngster in school, used her chosen female name, and started a life-long course of hormonal treatment. Id. ¶ 47. As a result of the hormone injections, Doe exhibits clear signs of female breast development, which according to the Complaint, invites unwanted attention from male inmates.

         Although Doe's GD diagnosis is not disputed, the DOC has housed Doe at MCI-Norfolk, a men's prison, since October 31, 2016. Compl. ¶ 10. The Complaint relates a litany of humiliations and trauma caused by this placement. Doe alleges that, at least prior to this court's injunctive order, strip searches, which took place with some regularity, were conducted by male guards, who frequently groped her breasts. Compl. ¶ 33. She also alleges that during a facility-wide lockdown in June of 2017, she was forced to strip naked in the presence of male DOC staff and in plain view of other prisoners, many of whom made audible sexually suggestive comments about her body. Id. ¶ 34.

         Doe further alleges that she was forced to shower, on several occasions, in the presence of, or in a place where she could be seen by male inmates. Id. ¶ 35. She claims that these experiences have instilled in her a fear of falling victim to sexual violence, and that she began experiencing difficulty sleeping after “men gawked at her from the [prison] tier above her as she showered.” Id. ¶ 36; see also Id. ¶ 44 (alleging that “prisoners often harass her sexually in the bathrooms, with the knowledge and tacit approval of DOC staff”). She complains that while the DOC often provides separate shower facilities or shower times to transgender inmates - an accommodation she enjoyed when placed for a time in a housing area with access to a transgender-specific shower facility - “[o]n more than one occasion . . . Defendants have denied Jane Doe the right to use this shower and forced her to shower along with male prisoners while these prisoners snickered and made demeaning, hurtful, and denigrating comments about her.” Id. ¶ 39. While the DOC makes available to transgender prisoners a shower curtain with an opaque middle section designed to obscure an inmate's torso, the Complaint alleges that the opaque section “does not line up with Jane Doe's body, so male prisoners can see most of her naked body, including her breasts.” Id. ¶ 40.

         Other factual allegations in the Complaint fault various corrections officers for refusing to call Doe by her chosen female name or to otherwise treat her as a woman. The Complaint asserts that “certain DOC correctional officers make a point of asserting that Jane Doe's anatomy is different than any other woman and repeatedly state that she is still a man, ” while others deride Doe and other transgender prisoners as “chicks with dicks” and “wannabe women.” Id. ¶ 42. Doe complains that she is subjected to similar taunts and harassment from other inmates, leading her to frequently skip meals in the prison mess hall and to avoid group activities made available to other prisoners. Id. ¶ 44. She also alleges that prisoners have on occasion entered her cell and attempted to physically force themselves on her. Id.

         Doe's lawsuit was filed on November 15, 2017.[6] In response to the DOC's 12(b)(6) Motion to Dismiss, as previously noted, Doe filed a Motion for a Preliminary Injunction, see Dkt #34, praying that the court order the DOC 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); (8) refer to Jane Doe by her chosen female name; and (9) award such other relief as is just and proper.

Dkt #35 at 3.[7] ...

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