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BREAKING OUT OF THE PRISON HIERARCHY:
TRANSGENDER PRISONERS, RAPE, AND THE
EIGHTH AMENDMENT
Christine Peek∗

I.

INTRODUCTION

On December 17, 2002, Kelly McAllister filed a claim
against Sacramento County, its district attorney, and the
sheriff’s department, alleging threats and slurs based on her
1
transgender status, battery, and an assault that culminated
2
in rape. McAllister is a five-foot seven-inch, 135-pound preoperative transsexual in her mid-thirties, who has lived as a
3
woman for several years. She was arrested in connection

∗ Managing Editor, Santa Clara Law Review, Volume 44. J.D. Candidate,
Santa Clara University School of Law; B.A., San Jose State University.
1. This comment will use the word “transgender” as an umbrella term encompassing a variety of individuals, “including transsexuals, transvestites,
cross-dressers, drag queens and drag kings, butch and femme lesbians, feminine
gay men, intersexed people, bigendered people, and others who . . . ‘challenge
the boundaries of sex and gender.’” Shannon Minter, Do Transsexuals Dream of

Gay Rights? Getting Real About Transgender Inclusion in the Gay Rights
Movement, 17 N.Y.L. SCH. J. HUM. RTS. 589, 589-90 n.4 (2000) (quoting LESLIE
FEINBERG, TRANSGENDER WARRIORS: MAKING HISTORY FROM JOAN OF ARC TO
RUPAUL x (1996)). The term “transsexual” will refer more specifically to persons who “believe they belong to, want to be, and function as the ‘other’ sex.”
JASON CROMWELL, TRANSMEN & FTMS 20-21 (1999). In general, the word “sex”
will be used to refer to biology or anatomy, and “gender” will refer to “the collection of characteristics that are culturally associated with maleness or femaleness.” Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER,
POLICY INST. OF THE NAT’L GAY & LESBIAN TASK FORCE & NAT’L CTR. FOR
LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND
POLICYMAKERS 1, 2 (2000), available at http://www.ngltf.org/library/index.cfm.
Finally, “‘[g]ender identity’ refers to a person’s internal, deeply felt sense of being either male or female or something other or in between.” Id. at 3.
2. See Press Release, National Transgender Advocacy Coalition, Transgendered Woman Raped in Sacramento Jail Files Claim (Dec. 18, 2002), available at http://www.ntac.org/pr/release.asp?did=59.
3. See id.

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4

with a reported public disturbance. After McAllister’s court
appearance, she was placed in a cell with a larger male in5
mate who brutally raped her. Her attorney claims that the
sheriff’s department knew of McAllister’s transgender status,
6
but still placed her in a cell with a man.
McAllister’s ordeal typifies the risk faced by male-tofemale (MTF) transgender persons incarcerated in jails and
7
prisons across the country. The common practice of classifying transgender prisoners based on their genitalia alone creates a substantial risk of rape and prolonged sexual abuse at
8
the hands of more aggressive prisoners. Although 42 U.S.C.
9
§ 1983 provides a civil remedy for constitutional violations of
10
prisoners’ civil rights, case law interpreting the civil rights
statute as applied to Eighth Amendment violations has
placed several barriers before prisoner plaintiffs seeking
11
damages or injunctive relief. Often, advocates for prisoners’
civil rights must fight against the stereotype that prisoners’
12
claims are frivolous and do not belong in federal court. This
comment will examine the phenomenon of prison rape with
13
emphasis on the transgender prisoner’s perspective, discuss
14
the current legal standard for civil rights claims, and offer
15
suggestions for reducing violence.
Part II will provide background information on how
4. See id.
5. See id.
6. See id.
7. See infra Part II.B.1 (discussing genitalia-based placement). This comment will focus on sexual violence directed at male-to-female (MTF) transgender prisoners housed in men’s prisons. Though genitalia-based placement
also creates problems for MTF and female-to-male (FTM) prisoners housed in
women’s prisons, experiences of transgender prisoners in women’s prisons have
not been well documented. Alexander L. Lee, Nowhere to Go But Out: The Col-

lision Between Transgender & Gender-Variant Prisoners and the Gender Bi26-28
(2003),
at
nary
in
America’s
Prisons
http://srlp.org/alex%20lees%20paper2.pdf.
8. See Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism, 6 MICH. J. GENDER & L. 499, 522-23 (2000).
9. 42 U.S.C. § 1983 (West 1994).
10. See infra Part II.D.1-2 (discussing claims for civil rights violations).
11. See infra Part II.D.2.
12. See ROGER A. HANSON & HENRY W.K. DALEY, U.S. DEP’T OF JUSTICE,
CHALLENGING THE CONDITIONS OF PRISONS AND JAILS 3 (1995) (discussing
popular images of prisoner litigation).
13. See infra Part II.B-C.
14. See infra Part II.D.
15. See infra Part V.

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courts have dealt with transgender and transsexual persons
generally, in terms of how such individuals are defined and
16
how they define themselves. It will present information on
how the prison system classifies transgender inmates, and
how this compares with attempts to classify transgender per17
sons in civil cases. Part II will also discuss the prevalence of
rape in prison, the nature of the prison hierarchy, and com18
plications presented by AIDS. Finally, the background section will explain the standard for § 1983 claims based on
Eighth Amendment violations, and identify areas of difficulty
19
for plaintiffs.
Part III will describe how the existing legal standards
and prison administrative policies combine to disadvantage
20
transgender inmates. Part IV will analyze how the policy of
genitalia-based placement, the subjective prong of the deliberate indifference test, and exhaustion requirements work together to put transgender prisoners at risk and simultane21
ously cut off avenues for relief. Part V proposes a strategy
for encouraging changes to genitalia-based placement poli22
cies.
II. BACKGROUND

A. The Struggle to Claim a Transgender Identity
The first difficulty in any case involving a transgender
litigant often lies in determining the extent to which the court
will give the person’s subjective gender identity legal signifi23
cance. In cases involving transsexual litigants, courts often
have begun this inquiry by establishing whether or not the
24
person is a “genuine” transsexual. But, as one commentator
16. See infra Part II.A.
17. See infra Part II.B.
18. See infra Part II.C.
19. See infra Part II.D.
20. See infra Part III.
21. See infra Part IV.A-C.
22. See infra Part V.
23. See Debra Sherman Tedeschi, The Predicament of the Transsexual Prisoner, 5 TEMP. POL. & CIV. RTS. L. REV. 27, 28-29 (1995).
24. See Littleton v. Prange, 9 S.W.3d 223, 225 (Tex. App. 1999) (“Christie
was diagnosed psychologically and psychiatrically as a genuine male to female
transsexual.”); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997) (asking
whether prisons had a duty to administer the standard cure (estrogen therapy)
“to a prisoner who unlike Maggert is diagnosed as a genuine transsexual”) (em-

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has noted: “Any time we try to draw a clear boundary around
25
gender we end up cutting somebody’s flesh.” This sentiment
26
resonates strongly with respect to legal definitions. Debra
Tedeschi has observed, “[W]hile the law draws lines, a trans27
sexual crosses lines,” and indeed, the attempt to devise a
formula for classifying transgender persons as either male or
female has frustrated courts and the transgender community
28
alike. Frequently, courts have tried to hammer transgender
29
litigants into one category or the other, and have struggled
30
to define the term “transsexual” itself. The definitions used
are important, because they can exclude from protection per31
sons who may be in need of it.

phasis added).
25. Emi Koyama, A Fest in Distress, BITCH, Summer 2002, at 71 (Koyama
contributes to a discussion of questions raised by the inclusion of trans women
in the Michigan Womyn’s Music Festival.).
26. See Tedeschi, supra note 23, at 28-29. “Perhaps transsexual prisoners
would not pose such a problem to the legal and penal systems if their situations
were analyzed from a perspective that takes into account the uniqueness of being a transsexual.” Id. at 28-29.
27. Id. at 27.
28. See Littleton, 9 S.W.3d at 230-31. The court held that Christie Lee
Littleton, a post-operative male-to-female transsexual, was correctly classified
as male because her chromosomes remained the same after surgery and her
original birth certificate stated she was male. Id. Therefore, she could not legally be married to another male and could not bring a cause of action as his
surviving spouse. Id. Even though Littleton underwent surgery to bring her
body into congruence with her gender identity and amended her birth certificate
to reflect her gender identity, the court was not persuaded, and summarily declared: “There are some things we cannot will into being. They just are.” Id. at
231. See also In re Estate of Gardiner, 22 P.3d 1086, 1110 (Kan. Ct. App. 2001)
(reversing the trial court’s determination that the post-operative male-to-female
transsexual plaintiff was male and her marriage therefore void and remanding
with the order that the trial court consider the following factors in addition to
the her chromosomal makeup in determining her gender: “gonadal sex, internal
morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity”), aff’d in part and rev’d in
part, 42 P.3d 120 (Kan. 2002), cert. denied sub nom Gardiner v. Gardiner, 123
S. Ct. 113 (2002).
29. See Littleton, 9 S.W.3d at 230-31; Gardiner, 22 P.3d at 1110.
30. See infra Part II.A.1 (discussing various definitions of the term “transsexual”).
31. See Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997) (distinguishing
between an individual whose “sexual identity is polymorphous” and an individual diagnosed with gender dysphoria). See generally Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People, 7 WM. & MARY J. WOMEN & L. 37
(2000) (outlining the advantages and disadvantages of different strategies in
drafting transgender-specific protective legislation).

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1. Terminology in the Courts
Courts and legal scholars have applied a variety of defini32
tions of the term “transsexual.” Writing for the majority in
33
Farmer v. Brennan, Justice Souter adopted the often criti34
cized medical definition found in the 1989 Encyclopedia of
Medicine: “one who has ‘[a] rare psychiatric disorder in which
a person feels persistently uncomfortable about his or her
anatomical sex,’ and who typically seeks medical treatment,
including hormonal therapy and surgery, to bring about a
35
Another court defined “transsexpermanent sex change.”
ualism” as a gender identity disorder in which people believe
themselves to be “cruelly imprisoned within a body incom36
patible with their real gender identity.” Courts have also
37
begun their analysis “by stating what a transsexual is not.”
After distinguishing transsexuals from homosexuals and
transvestites, the court in In re Estate of Gardiner went on to
say: “A transsexual is one who experiences himself or herself
as being of the opposite sex, despite having some biological
characteristics of one sex, or one whose sex has been changed
38
externally by surgery and hormones.” Finally, some courts
seem to conflate transsexuality with transgenderism in their
39
attempt to define the former, even though the two are gen40
erally recognized as distinct, but not mutually exclusive.
32. See discussion infra Part II.A.1.
33. Farmer v. Brennan, 511 U.S. 825 (1994).
34. See Rosenblum, supra note 8, at 506-07; CROMWELL, supra note 1, at 11,
19.
35. Farmer, 511 U.S. at 829 (quoting AMERICAN MEDICAL ASSOCIATION,
ENCYCLOPEDIA OF MEDICINE 1006 (1989)).
36. See Rosenblum, supra note 8, at 506 (quoting Powell v. Shriver, 175
F.3d 107, 111 (2d Cir. 1999)).
37. Gardiner, 22 P.3d at 1093.
38. Id.; see also CROMWELL, supra note 1, at 20 (“‘Transsexual’ is used in
two ways: first, to describe someone who is in the process of becoming (transitioning) a man (and vice versa); and second, to describe someone who has completed sex reassignment surgery.”).
39. Littleton v. Prange, 9 S.W.3d 223, 226 (Tex. App. 1999) (“‘Transgenderism describes people who experience a separation between their gender and
their biological/anatomical sex’”) (quoting Mary Coombs, Sexual DisOrientation: Transgendered People and Same-Sex Marriage, 8 UCLA WOMEN’S
L.J. 219, 237 (1998)).
40. See CROMWELL, supra note 1, at 22-23.
Within [the transvestite and transsexual] community, [the term
“transgender”] is used in two ways. First, it designates individuals who
do not fit into the categories of transvestite and transsexual. Transgendered identification offers a more specific reference to people who

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2. Medicalization
On one hand, the practice of defining transsexuals in
medical terms, combined with the availability of hormones
and surgery, made a “politicized transgender movement” pos41
sible. As the courts have used them, however, medical definitions more often have perpetuated negative stereotypes
about transsexual people without helping them to achieve
42
their goals in court. Rejecting the notion that a prisoner not
formally diagnosed with “gender dysphoria” was entitled to
treatment, Judge Posner gratuitously inserted the following
opinion on transsexuals: “Someone eager to undergo this mutilation is plainly suffering from a profound psychiatric disor43
Posner’s blanket characterization of transsexuals as
der.”
“disordered” has been widely disputed by the transgender
community: “Such language, touted as being ‘scientific and
neutral’ or merely descriptive, is stigmatizing and seldom descriptive (e.g., gender dysphoria, ‘wrong body,’ and ‘afflicted’
live as social men or as social women but neither desire nor have sex
reassignment surgery. . . . Second, “transgender” is used as an encompassing term for transvestites and transsexuals as well as for those
who do not fit neatly into either category.
Id. at 23; see also Minter, supra note 1, at 589-90 n.4.
41. Minter, supra note 1, at 608. Minter also points out that the medical
profession has defined transsexualism in “rigid, heterosexist terms.” Id. at 609.
[O]nly transsexual people who conformed to stereotypical gender norms
and who were deemed capable of “passing” in their new sex were able
to obtain treatment. More generally, the ability of transsexual people
to gain access to medical services, and to legal recognition and protection has depended on how successfully they could hide their transsexual status and approximate a “normal” heterosexual life, with the result that those who are unable or unwilling to comply with these
oppressive standards have little or no protection at all.

Id.
42. See Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997) (simultaneously rejecting prisoner’s claim of cruel and unusual punishment for failure to
treat gender dysphoria and labeling all transsexuals “profound[ly] . . . disorder[ed]”); see also Dean Spade, Resisting Medicine, Re/modeling Gender, 18
BERKELEY WOMEN’S L.J. 15 (2003) (discussing the disadvantages of relying on
gender identity disorder to argue on behalf of transgender litigants); cf. Murray
v. United States Bureau of Prisons, No. 95-5204, 1997 WL 34677 (6th Cir. Jan.
28, 1997). On the rationale that transsexualism was recognized as a medical
disorder, the Murray court held that a “complete refusal by prison officials to
provide a transsexual with any treatment at all would state an Eighth Amendment claim for deliberate indifference to medical needs.” See id. at 3. Nevertheless, the court refused to second-guess the prison physician’s allegedly mistaken assessment of the level of hormones required to prevent the plaintiff from
regressing in the development of feminine characteristics. See id.
43. Maggert, 131 F.3d at 671.

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44

Nonetheless, courts seem reor ‘suffering’ transsexuals).”
luctant to recognize transsexuals as such without some kind
45
of mandate from a medical professional.

3. Self-definition
Apart from medical definitions, definitions based on individual perception of identity have arisen in the transgender
46
community. Kate Bornstein’s is one of the most inclusive:
“Anyone whose performance of gender calls into question the
47
construct of gender itself.” Bornstein also delineates three
categories of transsexuals: pre-operative, post-operative, and
48
non-operative. The last category describes those who live in
society as their opposite gender, but who do not wish to
change their biological sex, either because they feel the surgery is too expensive or too risky, or because they are happy
49
Others in the transwith their bodies the way they are.
gender community feel that a transgender person with no intention of having surgery would not view him or herself as a
50
transsexual. Furthermore, because many transsexual people spend a significant period of time in transition, they may
not fit neatly into any of these categories at any given point in
51
time. Finally, the transgender community is so diverse and
the experience of gender so personal that some prefer broad
52
53
definitions over narrow ones. In a nutshell: “There is no
44. CROMWELL, supra note 1, at 19.
45. See Schwenk v. Hartford, 204 F.3d 1187, 1193, 1193 n.4 (9th Cir. 2000)
(commenting that Schwenk never received any medical or psychiatric treatment
for gender dysphoria, but referencing with approval Schwenk’s submission of
the affidavit of Karil Klingbeil, a Clinical Associate Professor of Social Work and
Adjunct Professor of Psychiatry and Behavioral sciences at the University of
Washington, in which Klingbeil confirmed that Schwenk’s behavior was in no
way “inconsistent with gender dysphoria”); Littleton, 9 S.W.3d at 224-25 (acknowledging Littleton as a “genuine male to female transsexual” according to a
psychological and psychiatric diagnosis based on guidelines established by the
Johns Hopkins Group).
46. See supra notes 1, 41, 43.
47. KATE BORNSTEIN, GENDER OUTLAW 121 (1995).
48. Id.
49. See CURRAH & MINTER, supra note 1, at 40 (advising that language in
anti-discrimination statutes should recognize that transgender identities can
manifest themselves in many different ways).
50. See CROMWELL, supra note 1, at 22.
51. See id. at 23 (questioning whether an FTM or transman who has chest
reconstruction and nothing more is appropriately classed as “pre-op” or “postop”).
52. See Green, supra note 1, at 3-4 (“In its broadest sense, transgender en-

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B. Making Transgender People Fit
Gender non-conforming people have consistently been
among the most visible and vulnerable members of gay
communities—among the most likely to be beaten, raped,
and killed; among the most likely to be criminalized and
labeled deviant; among the most likely to end up in psychiatric hospitals and prisons; among the most likely to be
denied housing, employment, and medical care; among the
most likely to be rejected and harassed as young people,
and; among the most likely to be separated from their own
55
children.

Not surprisingly, prison merely exacerbates the prejudice
56
transgender persons already face. Because little formal re57
search on transgender prisoners exists, it is difficult to assess how many people are put in harm’s way as a result of
genitalia-based placement. Author Darren Rosenblum has
estimated that transgender prisoners number in the low
58
thousands nationwide. More significant than raw numbers
is the disproportionate rate at which transgender persons en59
ter the criminal justice system. A study of police attitudes
towards transgender individuals in the San Francisco Bay
Area revealed that transgender women are often stereotyped
60
as sex workers. This in turns leads to harassment and solicitation by undercover officers attempting to crack down on
61
prostitution. In addition, transgender persons often spend
compasses anyone whose identity or behavior falls outside stereotypical
norms.”).
53. See id. at 8.
54. Id.
55. Minter, supra note 1, at 592.
56. See Rosenblum, supra note 8, at 516 (“Once imprisoned, transgendered
people find fighting for their gender identity a monumental task, as they confront the gender segregation, transphobia, and limited resources of the prison
system.”).
57. See Alexander L. Lee, supra note 7, at 5.
58. Rosenblum, supra note 8, at 517.
59. See Lee, supra note 7, at 10 (citing results of a February 18, 1998 study
by the San Francisco Department of Public Health). Of the 155 individuals surveyed, “65% of [male-to-female] respondents had been incarcerated over one
night in a jail or prison, while 29% of [female-to-male] respondents had been.”

Id.
60. See Lee, supra note 7, at 8.
61. See id.

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time in jail following false arrests for entering the “wrong”
bathroom or for failure to produce “proper” identity docu62
ments. Finally, because transgender people are dispropor63
tionately low-income, they often face consequences for “qual64
ity-of-life” crimes such as sleeping in public.

1. Prison Placement Policies
On May 4, 2001, a federal judge recommended that
Patricia McGrath, a sixty-six-year-old transgender inmate
convicted of armed bank robbery, be placed in a women’s
65
prison upon her discharge from a federal medical center. Although prison authorities are not required to follow the
66
judge’s recommendation, they often do. While federal prison
officials had no formal policy on transgender inmates as of
2001, “usually, a defendant with a penis is placed in a male
prison, and a defendant with a vagina is placed in a female
67
prison.” Commenting on McGrath’s gender identity prior to
sentencing, Judge DuBois noted that from McGrath’s out68
ward appearance, she obviously viewed herself as a woman.
McGrath had been living as a female for the past thirty
69
years.
Genital surgery alone usually determines whether a
transsexual or transgender prisoner will be classified as male
70
or female, for the purposes of prison housing. Individuals
who have not opted for this surgery are housed according to
their biological sex, even if they identify differently and have
had other surgeries in order to appear more masculine or
62. See, e.g., Spade, supra note 42, at 17, 17 n.5.
63. Id. at 36.
64. See Lee, supra note 7, at 9.
65. See Timothy Cwiek, Judge Rules on Trans Inmate, PHILA. GAY NEWS,
May 25-31, 2001 (copy on file with Philadelphia Gay News).
66. See id. When federal prison officials decline to follow a judge’s recommendations, they must notify the judge in writing. See Federal Bureau of Prisons
Policy Statement,
P.S.
5070.10,
at
4
(June
30, 1997),
http://www.bop.gov/progstat/5070_010.pdf (“When the court’s recommendation
regarding an institution and/or geographic location is not followed, the Regional
Director shall write a letter to the court explaining the reason(s) for this decision within five working days after designation.”).
67. See Cwiek, supra note 65.
68. Id.
69. See id.
70. See NAT’L CENTER FOR LESBIAN RIGHTS, TRANSSEXUAL PRISONERS (Dec.
PRISONERS],
2001)
[hereinafter
TRANSSEXUAL
www.nclrights.org/publications/pubs/tsprison.pdf.

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feminine, as the case may be. Courts have not been recep72
tive to plaintiff’s challenges to the system. In Meriwether v.
Faulkner, the court concluded that an administrative decision
to place the plaintiff in a men’s prison did not violate equal
protection, without evidence that the classification was moti73
vated by an intent to discriminate against her. Genitaliabased classification puts MTF transgender prisoners at special risk for physical injury, sexual harassment, sexual bat74
tery, rape, and death, because the prison hierarchy subju75
gates the weak to the strong and equates femininity with
76
weakness.
New York, a state that tends to house greater numbers of
transgender prisoners, attempted to reduce this risk by creating a ward to house gay prisoners and placing transgender
77
prisoners with them. Often, prison officials resort to segre78
gating transgender prisoners from other prisoners, simultaneously cutting off recreational, educational, and occupational
79
opportunities, and associational rights. Faced with the possibility of prolonged isolation, boredom and loneliness, some
80
transgender prisoners may prefer the general population.

71. See id. See generally Rosenblum, supra note 8, at 520-36 (discussing
genitalia-based placement and alternatives).
72. See Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir. 1987).
73. See id.
74. See Rosenblum, supra note 8, at 522-26 (discussing the risks transgender people face in prison).
75. See id. at 523.
76. See Terry A. Kupers, Rape and the Prison Code, in PRISON
MASCULINITIES 111, 115 (Don Sabo et al. eds., 2001) (“Of course, the hierarchy
does not begin or end with prisoners. The security officers wield power over the
prisoners; the warden dominates the security officers; and at the other end of
the hierarchy, more than a few prisoners have been known to rape women or
beat them and their children.”); Stephen Donaldson, A Million Jockers, Punks,
and Queens, in PRISON MASCULINITIES, 118, 119 (Don Sabo et al. eds., 2001)
(“[Transvestites] are highly desirable as sexual partners because of their willingness to adopt ‘feminine’ traits, and they are highly visible, but the queens
remain submissive to the ‘Men’ and, in accordance with the prevalent sexism,
may not hold positions of power in the prisoner social structure.”).
77. See Rosenblum, supra note 8, at 534. New York had seventy prisoners
on hormone treatments in its state prisons and seventeen in its city prisons at
the time Rosenblum wrote his article. See id. at 517.
78. See id. at 529.
79. See TRANSSEXUAL PRISONERS, supra note 70; Rosenblum, supra note 8,
at 530.
80. See Rosenblum, supra note 8, at 530.

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2. Determining Sex in Civil Litigation
By comparison, in many civil cases, even the decision to
undergo genital surgery has no effect on the status of trans81
gender litigants. The outcome of the Gardiner case on appeal to the Kansas Supreme Court illustrates the typical
manner in which courts deny post-operative transsexuals
with genital surgery legal recognition of their reassigned
82
sex.
The case involved a dispute over the probate of the
83
plaintiff’s father’s will. In 1998, Marshall G. Gardiner mar84
ried J’Noel Gardiner, a male to female transsexual. When
Marshall died his son Joe, from whom Marshall had been estranged, filed a petition for letters of administration, claiming
that he was the sole heir to Marshall’s estate because J’Noel
was born a man, and therefore her marriage to his father was
85
void.
The district court entered summary judgment in Joe’s favor on the issue of the validity of the marriage, relying on
Littleton v. Prange to conclude that J’Noel was male as a
matter of law, because her chromosomes remained the same
even after the many surgeries and other forms of treatment
86
she had undergone. Reversing and remanding for further
consideration on the issue of J’Noel’s sex, the court of appeals
directed the trial court to consider “factors in addition to
chromosome makeup, including: gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual
87
identity.” Further, the court of appeals indicated that the
trial court should consider whether an individual was male or
female at the time the marriage license issued, not at the

81. See Littleton v. Prange, 9 S.W.3d 223, 230-31 (Tex. App. 1999); In re Estate of Gardiner, 42 P.3d 120, 136-37 (Kan. 2002) (reversing on the issue of
whether the trial court must determine the transsexual litigant’s gender status
by a multi-factor test, and holding that absent a clear indication from the legislature to change the public policy of Kansas to include transsexuals within the
definition of “opposite sex,” a transsexual person will be considered his or her
original sex for the purposes of the state marriage statute) [hereinafter Gardiner II].
82. See Gardiner II, 42 P.3d at 136-37.
83. See id. at 121.
84. See id. at 123.
85. See id.
86. See id. at 124.
87. See In re Estate of Gardiner, 22 P.3d 1086, 1110 (Kan. Ct. App. 2001).

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88

time of birth.
The supreme court disagreed, on the ground that the
state legislature had intended the words “opposite sex” in the
narrow and traditional sense when it wrote the state’s mar89
riage statute. Without a clear indication from the legislature that it intended to include transsexuals, J’Noel could not
be considered the “opposite sex” of Marshall for the purposes
90
of the marriage statute. After refusing to recognize J’Noel
as a female, the Kansas Supreme Court went on to say:
We are not blind to the stress and pain experienced by one
who is born a male but perceives oneself as a female. We
recognize that there are people who do not fit neatly into
the commonly recognized category of male or female, and
to many life becomes an ordeal. However, the validity of
J’Noel’s marriage to Marshall is a question of public policy
91
to be addressed by the legislature and not by this court.

The United States Supreme Court declined to grant certio92
rari.

C. Rape and Coercive Sex in Prison
“A million jockers, punks, and queens demand an explanation, and their numbers continue to soar with every year.”93
1. How Prevalent Is Prison Rape?
Although prison rape between males entered relatively
94
recently into the general public’s awareness, its prevalence
88. See id.
89. See Gardiner II, 42 P.3d at 136-37 (citing Ulane v. E. Airlines, Inc., 742
F.2d 1081 (7th Cir. 1984)).
90. See id. at 136-37.
91. Id. at 137.
92. See Gardiner v. Gardiner, 123 S. Ct. 113, 113 (2002). Subsequent cases
involving the legality of transgender marriages include Kantaras v. Kantaras,
No.
98-5375CA,
(Fla.
Cir.
Ct.
Feb.
21,
2003),
http://www.courttv.com/archive/trials/kantaras/docs/opinion.pdf (holding that
the marriage of a transsexual man, Michael Kantaras was a legal marriage),
and In re Marriage of Simmons, in which an Illinois trial court held that Sterling Simmons, a transgender husband and father, was not legally male and
therefore not legally married or a father. National Center for Lesbian Rights,
In re Marriage of Simmons, at http://www.nclrights.org/cases/simmons.htm
(case summary). Both cases have been appealed.
93. See Donaldson, supra note 76, at 126.
94. See Cheryl Bell et al., Rape and Sexual Misconduct in the Prison System: Analyzing America’s Most “Open” Secret, 18 YALE L. & POL’Y REV. 195, 197
(1999).

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95

no longer comes as a surprise to most Americans. The phenomenon has been recorded in popular songs such as “Date
96
Rape,” by Sublime, and in movies, such as The Shawshank
97
Redemption. Studies vary as to the estimated frequency of
98
prison rapes. In 1974, Carl Weiss and David James Friar
wrote that of the forty-six million Americans who would be
arrested at some point in their lives, ten million of them
99
would be raped in prison. In 1992, the Federal Bureau of
Prisons estimated that between nine and twenty percent of
100
prisoners had been sexually assaulted.
Two studies, one in
1982 by Wayne S. Wooden and Jay Parker, and another in
1996 by Cindy Struckman-Johnson, concluded that the rate
at which inmates are forcibly penetrated is somewhere
around twelve to fourteen percent of the total male inmate
101
population.
In addition, Struckman-Johnson’s study ob95. See Daniel Brook, The Problem of Prison Rape, LEGAL AFF., Mar.-Apr.
2004, at 29 (noting that jokes about prison rape have become more common in
popular culture).
96. SUBLIME, Date Rape, on 40 OZ. TO FREEDOM (Gasoline Alley/MCA Records, 1992).
One night in jail it was getting late.
He was butt-raped by a large inmate
And he screamed,
But the guards paid no attention to his cries.
Id. “Date Rape” became the most requested song ever at KROQ, a modern rock
radio station in L.A. Zack Stenz, Sublime Time: Band’s Success Far from RiTHE
SONOMA
INDEPENDENT,
May
16-22,
1996,
diculous,
http://www.metroactive.com/papers/sonoma/05.16.96/music-9620.html.
97. THE SHAWSHANK REDEMPTION (Castle Rock Entertainment/Time Warner, Inc. 1994). Hundreds of web pages around the world are devoted to this
film. Stephen Schurr, Shawshank’s Redemption: How a Movie Found an AfterWALL
ST.
J.,
Apr.
30,
1999,
at
B1,
B4,
life,
http://www.vzavenue.net/~speedtech/index2.html (on file with the Santa Clara
Law Review).
98. Bell et al., supra note 94, at 198.
99. CARL WEISS & DAVID JAMES FRIAR, TERROR IN THE PRISONS:
HOMOSEXUAL RAPE AND WHY SOCIETY CONDONES IT 61 (1974). Though the
term “homosexual rape” has often been used in reference to male prison rape,
e.g., Farmer v. Brennan, 511 U.S. 825, 852 (1994) (Blackmun, J., concurring),
the idea that “predatory homosexuals” lurk in prisons is a myth. Brook, supra
note 95, at 28; Donaldson, supra note 76, at 125 (“For the majority of prisoners,
penetrative sex with a punk or queen remains a psychologically heterosexual
and, in the circumstances of confinement, normal act . . . .”).
100. Kupers, supra note 76, at 111.
101. Bell et al., supra note 94, at 198. Furthermore, Struckman-Johnson
found that prison guards were responsible for approximately one-fifth, or eighteen percent, of all sexual victimizations. Id. at 198 n.15. Struckman-Johnson
performed another study in 2000, which revealed rates of sexual aggression of
twenty and twenty-one percent in seven midwestern prisons. James Robertson,

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served that twenty-two percent of male inmates had been coerced or persuaded into some form of sexual contact in prison,
close to the twenty-three percent finding of Daniel Lockwood’s
102
1986 study of a maximum security New York state prison.
In contrast, a 1994 study by Christine Saum reported much
103
lower results. Saum anonymously surveyed 101 inmates in
a medium security drug treatment program, but only five
participants reported having ever been victimized, and none
of them admitted they had been raped in the year prior to the
104
study.
The lack of consensus in the studies has several explana105
tions.
First, the results often depend on how broadly or
106
Some studies, such as Strucknarrowly rape is defined.
man-Johnson’s, define “rape” broadly as any unwanted sexual
107
contact.
Others, like Saum’s, define it narrowly as un108
Furthermore, prison rape experts
wanted oral or anal sex.
do not agree on whether some sexual experiences in prison
109
might be considered consensual. Writers like Terry Kupers
challenge studies that do not take into account the inherently
110
coercive atmosphere in prison:
[T]hese figures do not include the huge number of men
who “consent” to having sex with a tougher con or consent
to having sex with many other prisoners only because they
are very afraid that, if they do not, they will be repeatedly
beaten and perhaps killed. In my view, this kind of co111
erced sex also constitutes rape.

Second, prison rape experts often find official prison re112
In 1968, after investigatcords of inmate rape unreliable.
ing 156 cases of rape over a two-year period, and interviewing
over 3000 inmates and guards, Philadelphia chief assistant
A Clean Heart and an Empty Head: The Supreme Court and Sexual Terrorism
in Prison, 81 N.C. L. REV. 433, 442 n.47 (2003).
102. Bell et al., supra note 94, at 198.
103. Id.
104. Id. at 198-99.
105. See id. at 199.
106. See id.
107. Id.
108. Bell et al., supra note 94, at 199.
109. See id.
110. Kupers, supra note 76, at 111.
111. Id. In addition, Kupers acknowledges that consensual sex sometimes
occurs in prison, distinguishing it from coercive sex or rape. Id. at 115.
112. See Bell et al., supra note 94, at 199.

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district attorney Alan J. Davis concluded that the reported
rapes were “the tip of the iceberg” and that the actual number
113
Of those,
of rapes in this time period was closer to 2000.
only ninety-six were reported by the victims; sixty-four had
been written up in prison records; forty of the offenders had
been disciplined; and twenty-six cases had been passed on to
114
the police for prosecution.
Third, many inmates do not report rape for fear of being
115
labeled a “snitch,” which would place their lives at risk. Finally, the outcome of the study may depend on what kind of
116
Prison rape tends to be more prevaprisoner is examined.
lent in state and city institutions, which house greater numbers of inmates convicted of crimes of violence, than in federal
117
institutions.
Combined with lack of reporting, the relative absence of
reliable studies on prison rape frustrates efforts to make pris118
ons safer.
To further the goal of preventing prison rape,
119
Congress enacted the Prison Rape Elimination Act of 2003,
which calls for the Bureau of Justice Statistics of the Department of Justice to conduct a yearly “review and analysis
120
of the incidence and effects of prison rape.”
Among other
things, the Act directs that the Bureau shall review and analyze common characteristics of victims and perpetrators of
121
rape. The Act also creates a National Prison Rape Commission to study the effects of prison rape and make recommen113. SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 26465 (1975).
114. Id. at 265.
115. E.g., Kupers, supra note 76, at 112. “According to the code, snitching is
the worst offense, . . . punishable by repeated beatings, rapes, or even death.”

Id.
116. See Bell, et. al., supra note 94, at 199 (noting that Saum questioned inmates who were in a drug treatment program in a medium security setting, and
admitted that the prison conditions may have affected the prevalence of rape);
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS 138 (2001)
(noting significant differences in victimization rates among prison systems).
117. BROWNMILLER, supra note 113, at 260.
118. See HUMAN RIGHTS WATCH, supra note 116, at 144-45 (noting that
prison authorities’ failure to collect data can indicate that they do not take the
issue of prison rape seriously); infra Part II.D.3 (noting that underreporting
creates opportunities for prison authorities to argue they did not know of the
risk of rape).
119. Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, 117 Stat.
§§ 972-87 (2003).
120. 42 U.S.C. § 15603(a) (2003).
121. Id. § (a)(1)(A).

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dations to the Attorney General regarding national standards
122
States that fail to adopt the national stanfor prevention.
dards will receive a five percent reduction in federal funding
123
for programs covered by the Act.

2. Masculinity and the Prison Hierarchy
124

Prison rapes do not occur in a vacuum.
In order to understand the phenomenon of rape between inmates, one must
place it in the context of the prison hierarchy, the “ranking of
125
prisoners by their fighting ability and manliness.” Often re126
ferred to informally as the prison “code,” the set of rules
governing interaction between prisoners requires that men
“act tough, lift weights, and be willing to fight to settle
127
grudges,” or risk being labeled weak and subjected to beat128
129
ings and rape. At the top of the hierarchy, dominant men
subjugate weaker men through physical violence or manipu130
lation.
In general, sexually dominant inmates consider
themselves heterosexual and view their role as different from
131
the passive/receptive role forced upon their victims.
The bottom of the hierarchy is “defined in terms of the
132
feminine.”
At the lowest level are “punks,” usually heterosexual inmates who have been forced into a sexually submissive role, often by gang rape, but also by other coercive tac133
tics.
A “punk” can also be a homosexual or bisexual who
122. 42 U.S.C. § 15606(a), (e). The Commission’s power to make recommendations is limited by subsection (e)(3), which states: “The Commission shall not
propose a recommended standard that would impose substantial additional
costs compared to the costs presently expended by Federal, State, and local
prison authorities.” Id. § e)(3).
123. 42 U.S.C. § 15607(b)
124. See Kupers, supra note 76, at 113.
125. Id.
126. Id. at 113-14.
127. Id. at 114.
128. See id.
129. Colloquial terms for dominant prisoners include “wolves,” “daddies,”
“jockers,” and “pimps.” INEZ CARDOZO-FREEMAN, THE JOINT: LANGUAGE AND
CULTURE IN A MAXIMUM SECURITY PRISON, 370-94 (1984) (using the terms
“wolf,” “daddy,” and “pimp”); Donaldson, supra note 76, at 118 (explaining the
term “jocker”). This comment uses these terms because they appear frequently
in anecdotal reports of prison rape. The reader should nonetheless be aware
that colloquial expressions change rapidly and vary from region to region.
130. See Kupers, supra note 76, at 115.
131. See Donaldson, supra note 76, at 125.
132. Kupers, supra note 76, at 115.
133. Donaldson, supra note 76, at 119.

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rejected the “queen” role described below, but was forced into
134
a sexually submissive role (“turned out”) anyway. Young or
inexperienced prisoners often find themselves preyed upon by
“wolves” offering loans, cigarettes, or other luxuries, and later
135
demanding sexual repayment of the debts.
Sexual harassment usually precedes victimization, and can take the form of
statements that feminize the target, overt sexual proposi136
tions, sexual extortion, or physical overtures.
The number
of punks tends to increase with the security level of the institution, although big city jails and juvenile institutions are
137
also thought to house them in high numbers.
Another smaller class of inmates termed “queens” consists mainly of transgender and effeminate homosexual inmates who are assigned female roles and referred to as fe138
males generally.
Queens and other submissive inmates
take on stereotypically feminine tasks: doing laundry, cleaning the cell, straightening the bunks, and making and serving
139
coffee.
Queens are forbidden to hold overt positions of
140
power and are often used for prostitution, with their earn141
Beings going to the pimp responsible for their protection.
cause they are often scapegoated and viewed with contempt
by prison staff, queens are frequently given the least desirable jobs, kept under surveillance, and harassed by homopho142
bic guards. In institutions that segregate queens from other
prisoners, they are often denied privileges afforded the general population, including “recreation hall attendance, exercise and fresh air in the yard, library visits, chapel atten-

134. Id. at 119; CARDOZO-FREEMAN, supra note 129, at 370-71 (using the
phrase “turned out” in context).
135. BROWNMILLER, supra note 113, at 266-67 (quoting Alan J. Davis, Sexual
Assaults in the Philadelphia Prison System, in THE SEXUAL SCENE 107-24
(Gagnon & Simon eds., 1970)).
136. James E. Robertson, Cruel and Unusual Punishment in United States
Prisons: Sexual Harassment Among Male Inmates, 36 AM. CRIM. L. REV. 1, 9-15
(1999).
137. Donaldson, supra note 76, at 119-20.
138. Id. at 119.
139. See id. at 120; Brook, supra note 95, at 28.
140. Donaldson, supra note 76 at 119; HUMAN RIGHTS WATCH, supra note
116, at 179-80 (2001) (anecdotal account of prostitution).
141. See CARDOZO-FREEMAN, supra note 129, at 385.
142. Donaldson, supra note 76, at 119; see also CARDOZO-FREEMAN, supra
note 129, at 386 (“Some heterosexuals despise the homosexuals, but in general,
the prison population is more tolerant of true queens than the prison guards.”).

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143

They nonetheless enjoy a marginally
dance, and hot food.”
higher status in the hierarchy than punks, probably because
144
they are considered desirable sexual partners, and because
punks are condemned for lacking the courage to defend them145
selves and their masculinity.
Nevertheless, the “benefits” of being classed as a queen
146
have little practical significance.
Queens do not have the
power to say “yes” or “no” to sex without the approval of the
147
“pimp” or “daddy” who is protecting them at the time.
Anecdotal accounts tell of queens or punks being sold to pay
debts:
Well, naturally, I didn’t like the idea of being pimped off
and all that stuff. But O.K.; when the guy was getting
short, he sold me to somebody for two hundred dollars.
. . . Well, if he’d a waited for a little bit longer, he’d a got
five hundred bucks cause the guy was fixin to offer five
148
hundred.

143. Donaldson, supra note 76, at 119.
144. See id.
145. See CARDOZO-FREEMAN, supra note 129, at 371. Ironically, homosexual
male and transgender inmates are accorded (only slightly) higher status because they act in conformity with the stereotypical feminine role, but heterosexual “punks” are given lower status because they could not or would not fight
to preserve their masculinity. See id.
146. See Donaldson, supra note 76, at 119 (describing the negative aspects of
being classed as a “queen”).
147. See CARDOZO-FREEMAN, supra note 129, at 386. “Pimping is a safe
business in prison. The girls are respected that work for a pimp and behave
themselves; they’re not sluts. If they do screw around, they get their butts
kicked. They flirt but just to get business.” Id.
148. See id. at 390 (quoting Sandy, a transvestite prisoner); see also The
Story of a Black Punk, in PRISON MASCULINITIES 127, 129 (Don Sabo et al. eds.,
2001) (describing a punk’s experience being sold).
I got raped a few more times until a Black Brother offered to be my
man, which I accepted right away to avoid getting killed. He wasn’t too
bad but he got into heavy debt and ‘sold’ me to this other Black dude
for swag to get him off the hot seat.

Id.
There is at least one documented example of organized resistance to the practice
of buying and selling queens. See Daniel Burton-Rose, The Anti-exploits of Men
Against Sexism, 1977-78, 224, in PRISON MASCULINITIES (Don Sabo et al. eds.,
2001). In the mid-1970s, prisoners Ed Mead and Danny Atteberry founded Men
Against Sexism (MAS), an organization of gay and bisexual prisoners dedicated
to disrupting the system of sexual exploitation at the maximum-security penitentiary in Walla Walla, Washington. Id. at 224-25. They created the concept
of “safe cells,” purchased from other prisoners as they transferred out. Id. at
226. MAS members would intercept likely targets for prison rape as they
stepped off the bus, explain the situation, and offer them a safe cell. Id. The

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Thus, because of the nature of the prison hierarchy, an
entering transgender inmate can either choose to act submissive or be beaten into submission, and more often than not,
149
Despite this reality,
sex is coercive for them on some level.
all prisoners can be disciplined for engaging in any sex that
150
they are not physically forced to perform.
Further, prisons
do not often provide condoms, on the rationale that prisoners
151
are not supposed to be engaging in sex at all.

3. The Consequences of AIDS
“Rapes occur at night, no condoms used. Sometimes
I can prevent rape by telling the person that I have
HIV and that it could be passed on to them.”152
Although the effect of the AIDS crisis on the prison popu153
lation has yet to be fully documented, HIV and AIDS are
154
prevalent among those incarcerated.
In 1993, Stephen
Donaldson observed of federal prisons that “homophobia has
risen . . . the status of queens has fallen; virgin heterosexuals
are more highly prized; fewer jockers are hooking up; and

organization also prevented other prisoners from claiming effeminate gay men
as their property. Id. at 228. MAS was unofficially disbanded when its leaders
were transferred to other state and federal institutions, following a foiled escape
attempt. Id. at 228-29.
149. See CARDOZO-FREEMAN supra note 129, at 390. A transgender prisoner
explains how she viewed the situation when she first arrived: “I knew ahead of
time that I was goin to come here, that I wasn’t goin to have no alternative but
to be what I really was. I came here wearin tight pants cause I knew I was goin
to have to give it up to somebody.” Id.
150. See Donaldson, supra note 76, at 123 (noting that disciplinary codes in
United States confinement institutions outlaw all sexual activity).
151. See Richard D. Vetstein, Rape and AIDS in Prison: On a Collision
Course to a New Death Penalty, 30 SUFFOLK U. L. REV. 863, 877 (1997); see also
Donaldson, supra note 76, at 123 (noting that prison administrators refuse to
allow condoms because to do so would be condoning homosexuality, “something
they apparently consider worse than the death of prisoners”).
152. Male-to-Female Transsexuals and Transgendered People in Prisons:
HIV/AIDS Issues and Strategies, 4 CANADIAN HIV/AIDS POL. & L. NEWSL.,
available
at
Spring
1999,
http://www.aidslaw.ca/Maincontent/otherdocs/Newsletter/spring99/prisons.htm#
2 (quoting an anonymous transsexual and transgender prisoner).
153. See Donaldson, supra note 76, at 123.
154. See Vetstein, supra note 151, at 874-76. Although a comprehensive
analysis of HIV and rape in the prison system is beyond the scope of this paper,
Vetstein’s article discusses rape and HIV in the context of recent Eighth
Amendment decisions. See id.

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155

much of the sexual behavior has become more covert.”
While prostitution also decreased, Donaldson predicted that
156
rape would increase under such circumstances.
Although
157
most inmates become infected outside of prison, a transgender inmate has increased risk of exposure while incarcerated, because of the high risk of rape, coerced sex, and coerced
158
prostitution.

D. Civil Remedies for Victims of Prison Rape
1. The Hands-off Doctrine
159

Prior to the enactment of 42 U.S.C. § 1983 in the mid1960s, the judiciary took a “hands-off” approach to any issues
of cruel or unusual punishment that might arise from the
160
conditions of confinement.
Concern for the separation of
powers justified the hands-off doctrine; the belief ran that intervention by the judiciary would constitute an encroachment
161
on a function of the executive branch. The federal judiciary
was also reluctant to encroach on state sovereignty by intrud162
In 1976, however, the Suing into state prison policies.
preme Court departed from this doctrine and recognized that
post-sentencing conditions of confinement could violate the
155. Donaldson, supra note 76, at 123.
156. See id. In transsexual inmate Dee Farmer’s case, discussed infra Part
II.D.2, the possibility that Farmer might have been HIV positive apparently did
not deter her attacker, and in fact, she was HIV positive when the other inmate
beat and raped her. See United States v. Farmer, No. 95-7414, 1997 U.S. App.
LEXIS 9699, at 1-2 (4th Cir. 1997) (regarding Farmer’s AIDS status at the time
of her sentencing); Farmer v. Brennan, 511 U.S. 825, 830 (1994) (regarding
Farmer’s allegations of rape).
157. See Vetstein, supra note 151, at 876.
158. See discussion supra Part II.C.2 (discussing the risks facing transgender
prisoners).
159. 42 U.S.C. § 1983 (West 1994).
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory of the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
Id.
160. Jason D. Sanabria, Farmer v. Brennan: Do Prisoners Have Any Rights
Left Under the Eighth Amendment?, 16 WHITTIER L. REV. 1113, 1134-35 (1995).
161. Id. at 1134.
162. Id.

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Eighth Amendment’s prohibition on cruel and unusual pun163
ishment.

2. Modern Eighth Amendment Jurisprudence: Farmer
v. Brennan and “Deliberate Indifference”
Section 1983 gives prisoners the opportunity to pursue
164
civil remedies for violations of federal constitutional rights.
To state a claim under § 1983, prisoners who have been raped
while incarcerated usually allege a violation of the Eighth
Amendment, on the theory that the conditions of their confinement were objectively severe and that prison authorities
165
were indifferent to them.
When a prisoner sues federal
166
prison authorities, the suit is called a Bivens action. In addition to suits for damages, prisoners may also file for injunctive relief, if it appears that prison authorities are “knowingly
and unreasonably disregarding an objectively intolerable risk
167
of harm” and will continue to do so.
In Helling v. McKin168
ney, the Court expanded its definition of the objective component by holding that the Eighth Amendment protected
prisoners from unreasonable risks of damage to their future
169
Thus, prisoners need not wait until serious injury
health.
170
happens before seeking relief in the courts.
In the case that established the current legal standard
for Eighth Amendment complaints based on conditions of confinement, the plaintiff Dee Farmer brought a Bivens complaint against a number of prison authorities for transferring
or placing her in general population at a federal penitentiary,
despite knowledge that she was a transsexual and would be
particularly vulnerable to sexual attack in that environ-

163. Id. at 1136-37 (citing Estelle v. Gamble, 429 U.S. 97 (1976)). The first
use of the term “deliberate indifference” in the context of the Eighth Amendment can be traced back to Estelle. Id. at 1136.
164. HANSON & DALEY, supra note 12, at 1.
165. Vetstein, supra note 151, at 883, 891.
166. See BLACK’S LAW DICTIONARY 162 (7th ed. 1999). “A lawsuit brought to
redress a federal official’s violation of a constitutional right. . . . A Bivens action
allows federal officials to be sued in a manner similar to that set forth at 42
USCA § 1983 for state officials who violate a person’s constitutional rights under color of state law.” Id. (citation omitted).
167. Farmer v. Brennan, 511 U.S. 825, 845-46 (1994).
168. 509 U.S. 25 (1993).
169. Id. at 35.
170. See id.

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171

Farmer wore women’s clothing, took estrogen, and
ment.
had silicon breast implants, but the surgery to remove her
172
testicles was unsuccessful.
Because federal prison authorities typically place MTF transsexuals without genital surgery
with male prisoners, Farmer was housed accordingly, usually
173
in segregation.
Within two weeks of her transfer to the
United States Penitentiary in Terre Haute, another inmate
174
sexually assaulted Farmer in her cell. Brandishing a homemade knife, he tore off her clothes, held her down, and
175
forcibly raped her.

a. The Standard Before Farmer
A summary of the pre-Farmer standard will help the
reader understand the significance of the Farmer decision. In
Wilson v. Seiter,176 the United States Supreme Court determined that the “deliberate indifference” standard would apply
to all Eighth Amendment claims challenging conditions of
177
confinement in prisons.
Under Wilson, prisoners cannot
state an Eighth Amendment claim for harms not formally
identified as “punishment” by the statute or sentencing judge,
unless they demonstrate that the offending prison official
178
subjectively intended the harm as punishment.
Thus, all
Eighth Amendment claims must satisfy a two-prong test for
“deliberate indifference”: an objective component relating to
the seriousness of the prisoner’s deprivation and a subjective
179
component relating to the prison official’s state of mind.
The Wilson court reasoned that the subjective requirement
followed from the principle that “only the unnecessary and
wanton infliction of pain implicates the Eighth Amend180
ment.” Concurring, Justice White wrote that the subjective
171. Farmer, 511 U.S. at 830-31.
172. Id. at 831.
173. Id. at 829-30. Although Farmer had sometimes been segregated for violating prison rules, in at least one penitentiary she was segregated out of concern for her safety. Id. at 830.
174. Id.
175. John Boston et al., Farmer v. Brennan: Defining Deliberate Indifference
Under the Eighth Amendment, ST. LOUIS U. PUB. L. REV. 83, 85 (1994) (citing
Farmer’s declaration).
176. 501 U.S. 294 (1991).
177. Id. at 303.
178. Id. at 300.
179. See id. at 298, 300; Farmer, 511. U.S. at 834.
180. See Wilson, 501 U.S. at 296-97.

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requirement was inconsistent with the idea that the conditions of confinement are themselves part of the punishment,
even if they are not specified as such by the sentencing
181
judge.

b. “Deliberate Indifference” Under Farmer
In evaluating § 1983 claims, the Seventh Circuit interpreted the subjective prong of the deliberate indifference test
to require proof that (1) the prison official actually knew of
impending harm that was easily preventable, and (2) the official exposed the plaintiff to the risk because of this knowl182
edge, rather than in spite of it.
When the Seventh Circuit
affirmed the dismissal of Farmer’s claim on summary judgment, Farmer appealed, and the Supreme Court granted certiorari to determine what level of culpability the deliberate
183
indifference test should require. Farmer argued that, under
Canton v. Harris,184 the plaintiff should only have to show
that the risk was so obvious that a reasonable person should
have known of it, a standard comparable to civil law reck185
186
lessness.
The Court rejected this argument and held instead:
[A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be

drawn that a substantial risk of harm exists, and he must
187
also draw the inference.
Although Farmer repudiated much of the Seventh Cir188
cuit’s language that favored the officials, it retained the
181. Id. at 306 (White, J., concurring).
182. See Boston, supra note 175, at 95 (quoting Jackson v. Duckworth, 955
F.2d 21, 22 (7th Cir. 1992); McGill v. Duckworth, 944 F.2d 244, 350 (7th Cir.
1991)).
183. See Farmer, 511 U.S. at 832.
184. 489 U.S. 378 (1989) (holding that municipality could be liable for failure
to train its employees if the need for more or different training was so obvious,
and the inadequacy so likely to result in the violation of constitutional rights
that policymakers can reasonably be said to have been deliberately indifferent
to the need), quoted in Farmer, 511 U.S. at 840-41.
185. See Farmer, 511 U.S. at 836-37.
186. See id. at 837.
187. Id. (emphasis added).
188. See Boston, supra note 175, at 95.

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subjective prong, fashioning a standard more akin to criminal
189
The Court softened the effect of this harsher
recklessness.
standard by allowing plaintiffs to prove through circumstan190
tial evidence that officials knew a substantial risk existed.
Thus, if the plaintiff can show a risk “longstanding, pervasive, well-documented, or expressly noted by prison officials
in the past, and circumstances suggest that the defendantofficial being sued had been exposed to information concerning the risk,” this could be enough to permit an inference by
191
the trier of fact that the official did have actual knowledge.
The Court also expressly stated that officials could not escape
liability simply by failing to verify facts strongly suspected to
be true or declining to confirm inferences strongly suspected
192
to exist.

c. Defenses Under Farmer
Farmer left four main defenses available to prison offi193

First, prison officials may
cials seeking to escape liability.
claim that they had no knowledge of the facts underlying the
risk of harm, or that they knew of the facts but believed the
194
risk was insignificant.
Second, they may assert that they
“responded reasonably to the risk, even if the harm was not
195
196
averted.”
Third, they may claim qualified immunity;
however, the Ninth Circuit has stated that under Farmer,
“the shield that qualified immunity provides is limited to
those officials who are either unaware of the risk or who take
197
reasonable measures to counter it.”
Furthermore, it is not
available when the guards themselves are responsible for the
189. See Farmer, 511 U.S. at 836-37.
The civil law generally calls a person reckless who acts or (if the
person has a duty to act) fails to act in the face of an unjustifiably
high risk of harm that is either known or so obvious that it should
be known. The criminal law, however, generally permits a finding
of recklessness only when a person disregards a risk of harm of
which he is aware.
Id. (citations omitted).
190. See id. at 842.
191. Id. at 842-43.
192. Farmer, 511 U.S. at 843, 843 n.8.
193. Marjorie Rifkin, Farmer v. Brennan: Spotlight on an Obvious Risk of
Rape in a Hidden World, 26 COLUM. HUM. RTS. L. REV. 273, 302 (1995).
194. Farmer, 511 U.S. at 844.
195. Id.
196. Rifkin, supra note 193, at 304.
197. Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000).

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198

Finally, in the case of injunctive relief, prison offiabuse.
cials may argue that the claim is moot, because at some point
during the litigation, they took remedial steps and ceased
“unreasonably disregarding an objectively intolerable risk of
199
harm . . . .”
From an evidentiary standpoint, prisoner plaintiffs often
have a difficult time refuting the first defense, because prison
records that may help prove their case are not under their
control and because violence in the prison system is underre200
ported.
In similar cases involving women prisoners, class
action suits have proved effective in overcoming this barrier
and obtaining injunctive relief by increasing the plaintiffs’
credibility and allowing the court to view the threat of violence in the context of the sexualized prison environment,
201
rather than as a series of isolated occurrences.
Transgender prisoners have also attempted to use class actions as a
202
tool for obtaining relief, sometimes even filing pro se. When
prison rape is systemic throughout a particular institution,
class actions may prove effective in attacking polices and pro203
cedures (or the lack thereof) that facilitate rape.

3. Farmer on Remand
Once Farmer’s case returned to the trial court on remand, she continued to encounter difficulty gathering evidence necessary to support her assertion that the prison officials knew she was a transsexual and that she would be at

198. See id.
199. Farmer, 511 U.S. at 846 n.9.
200. See Farmer v. Brennan, 81 F.3d 1444, 1446-49 (7th Cir. 1996) (discussing Farmer’s difficulty in obtaining her prison records) [hereinafter Farmer II];
Amy Laderberg, Note, The “Dirty Little Secret”: Why Class Actions Have

Emerged as the Only Viable Option for Women’s Inmates Attempting to Satisfy
the Subjective Prong of the Eighth Amendment in Suits for Custodial Sexual
Abuse, 40 WM. & MARY L. REV. 323, 360 (1998) (noting the problem of underreporting).
201. See Laderberg, supra note 200, at 326-28, 356.
202. Interview with Dean Spade, staff attorney, Silvia Rivera Law Project
(Apr. 16, 2004). The Prison Litigation Reform Act of 1995 imposes limitations
on attorney’s fees in § 1983 cases, which may explain why inmates are filing pro
se. 42 U.S.C. § 1997e(d); see also Margo Schlanger, Inmate Litigation, 116
HARV. L. REV. 1555, 1654-55 (2003) (discussing fee limitations and noting that
“[s]ome portion of the cases that once would have been counseled are now either
not being filed at all, or more likely, are litigated pro se”).
203. Interview with Dean Spade, supra note 202.

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204

A series of delays in response to
risk at Terre Haute.
Farmer’s document requests and unfavorable rulings on her
discovery motions caused the district court to find that the defendants did not have knowledge of underlying facts from
which they could have inferred that she was at substantial
205
risk.
Accordingly, the court granted summary judgment in
206
favor of the officials a second time.
Reversing, the Seventh Circuit chastised the district
court for its “refusal to allow Farmer’s lawyer to develop the
record on the defendants’ summary judgment motion so that
an informed decision on the existence of genuinely disputed
207
facts . . . would be possible.”
It also noted that the court’s
tolerance of defendants’ delays “resulted in the destruction of
208
evidence that might have been helpful to Farmer[’s case,]”
specifically, “records of all administrative remedies filed with
the Bureau of Prisons by inmates at USP-Terre Haute that
‘allege assaultive behavior, sexual misconduct, sexual proposals or threats, . . . transfer for danger or protection filed during . . . the time leading up to and just after her alleged rape
209
and assault.’”
Farmer’s continuing difficulties may implicate the general sentiment among some in the legal community that pris210
oners’ claims lack merit and waste the courts’ time. Inmate
petitions have been blamed for increasing the number of federal judges and the size of clerks’ office staff, and for the re211
sulting costs to the federal government.
Restrictive deci204. Farmer II, 81 F.3d at 1446-49.
205. Id.
206. Id.
207. Id. at 1449.
208. Id. at 145.
209. Id. at 1451-52.
210. See Farmer II, 81 F.3d at 1450-51 (concluding that the district court
abused its discretion in denying Farmer’s Rule 56(f) motion and noting that it
failed to explain why it found some discovery requests relevant and others irrelevant); Robert G. Doumar, Prisoner Grievances: Prisoner Cases: Feeding the
Monster in the Judicial Closet, 14 ST. LOUIS U. PUB. L. REV. 21, 21 (1994) (“The
cost to the federal government of this bureaucratic monster is staggering, especially considering that the vast majority of these prisoner civil rights complaints
are small claims complaints at best, and completely groundless and frivolous at
worst.”). Although Farmer’s lawsuits have been referred to as “numerous and
diverse,” it is also significant that “she has raised colorable constitutional claims
at every facility at which she has been incarcerated. See Tedeschi, supra note
23, at 42.
211. See Doumar, supra note 210, at 21.

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sions, partial filing fees, and exhaustion requirements serve
212
to reduce the number of prisoner civil rights cases. In 1996,
213
Congress amended 42 U.S.C. § 1997e to require exhaustion
of state administrative remedies before prisoners may file
214
Prior to the amendment, the Civil Rights of
§ 1983 claims.
Institutionalized Persons Act (CRIPA) had required exhaustion only when the administrative remedy system had been
215
certified as “plain, speedy, and effective.” The Farmer court
reiterated the exhaustion requirement with respect to claims
216
for injunctive relief.
The circuits are split on whether
§ 1997e applies to claims for money damages when administrative procedures do not provide for monetary compensa217
tion.
III. IDENTIFICATION OF THE PROBLEM
As long as the Bureau of Prisons and state prison administrators maintain the practice of genitalia-based placement,
the likelihood of sexual assault upon transgender prisoners is
218
Consequently, the likelihood that such
extremely high.
212. See id. at 31-33.
213. Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321, 1321-66 to –77 (Apr. 26, 1996) (amending 42 U.S.C. 1997e).
(a) Applicability of administrative remedies. No action shall be brought
with respect to prison conditions under section 1979 of the Revised
Statutes of the United States (42 U.S.C. 1983), or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a).
214. 42 U.S.C. § 1997e(a).
215. Schlanger, supra note 202, at 1695-96 (quoting 42 U.S.C.A.
§ 1997e(b)(1)).
216. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (“When a prison inmate seeks injunctive relief, a court need not ignore the inmate’s failure to take
advantage of adequate prison procedures, and an inmate who needlessly bypasses such procedures may properly be compelled to pursue them.”).
217. See Noguera v. Hasty, 99 Civ. 8786 (KMW) (AJP), 2000 U.S. Dist.
LEXIS 11956, at *31-33, 32 n.21 (S.D.N.Y. 2000) (noting the split and an unpublished Second Circuit decision stating exhaustion was not required because
the Bureau of Prisons Administrative Remedy Program does not provide financial compensation). The Noguera court concluded that the plaintiff had exhausted the administrative remedies even if they were required. Id. at 41.
218. See Edward S. David, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 CONN. L. REV. 288, 298 (1975) (“The preoperative patient who has been on hormonal therapy is almost as likely to be subjected to sexual abuse in prison as the postoperative patient.”), quoted in
Tedeschi, supra note 23, at 35.

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prisoners will be able to raise colorable § 1983 claims is also
219
It is fundamentally unfair for the practices of one
high.
branch of the government to create a safety risk for a particular class of people, for which other branches of the government have made obtaining relief difficult, on the ground that
too many prisoners file civil rights claims. The need to stem
the tide of prisoner litigation must give way to concern for
safety when certain prisoners face a heightened risk of rape
or coercion because of the institution’s placement policies.
Genitalia-based placement, exhaustion requirements, and the
subjective prong of the deliberate indifference analysis reinforce the prison hierarchy’s subjugation of MTF transgender
220
prisoners based on their feminine characteristics.
IV. ANALYSIS

A. The Problem of Genitalia-Based Placement
Genitalia-based placement draws an arbitrary line over
221
the complex issue of gender identity.
Although it offers
prison officials the short-term benefit of not having to deal
with the question of what makes someone male or female, in
the long run, it creates serious safety issues and increases the
222
prison’s liability. As long as genitalia-based placement continues, the government has adopted a de facto policy of put223
ting transgender people at risk of physical harm.
Unfortunately, most civil case law involving transgender
litigants provides little help to prison authorities in formulat224
ing a better system of classification. The ultimate outcomes
in the Littleton and Gardiner cases represent bad precedent
in terms of the deference courts have given to transgender

219. See Tedeschi, supra note 23, at 34 (“The cases then begin where this
‘practice’ leaves off—once a pre-operative, male-to-female transsexual is placed
in an all-male prison population, problems ensue and constitutional claims are
raised.”).
220. See discussion infra Part IV.
221. See generally Rosenblum, supra note 8 (discussing the difficulties inherent in a system that recognizes only two genders).
222. See id. at 522-26 (discussing the dangers of genitalia-based placement).
223. See generally Tedeschi, supra note 23. “The problems encountered by
these prisoners stem from the insistence of the prison system on defining their
sex by their pre-operative state rather than accepting their psychological gender
identity as the factor determinative of sex.” Id. at 47.
224. See infra Part II.B.2.

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225

Both courts came to
persons’ subjective gender identities.
the conclusion that they could not call a transsexual woman a
“woman” for the purposes of marriage unless the legislature
226
explicitly gave them permission. Similarly, the courts have
been reluctant to require that prison authorities change their
227
system of classification in the interests of prisoner safety.
Just as the courts have professed deference to the legislature
in transgender marriage cases, they have shown deference to
the executive branch where prison placement policies are con228
cerned.
Nevertheless, alternatives to genitalia-based
placement exist, and will be explored in this section. Such alternatives would reduce the risks that the prison system currently allocates to transgender prisoners as a class.

1. Segregation of Transgender Inmates
a. Administrative Segregation
Although segregation of all transgender inmates may reduce the risk of sexual assault, there are many reasons to reject segregation as a long-term solution to the problems cre229
ated by genitalia-based classification.
Often, conditions in
protective custody units do not differ significantly from those
230
in disciplinary segregation units.
For nonpunitive reasons,
segregation denies transgender inmates the privileges af231
forded the general population and shifts responsibility for
232
the attacks onto them. Furthermore, even if segregation effectively prevented attacks by other prisoners, it does nothing
225. See discussion infra Part II.B.2.
226. See In re Estate of Gardiner, 42 P.3d 120, 137 (Kan. 2002); Littleton v.
Prange, 9 S.W.3d 223, 230 (Tex. App. 1999).
227. See supra Part II.B.1 (discussing Meriwether v. Faulkner, 821 F.2d 408,
415 n.7 (7th Cir. 1987)).
228. See Gardiner II, 42 P.3d at 137; Littleton, 9 S.W.3d at 230; Meriwether,
821 F.2d at 415 n.7.
229. See Rosenblum, supra note 8, at 529-31. Although it may seem paradoxical to argue simultaneously (1) that perpetual administrative segregation of
transgender inmates is inappropriate, and (2) that placing transgender prisoners in the general population subjects them to an unreasonable risk of harm, it
is conceivable that “under certain circumstances, [both situations] may amount
to an unconstitutional infliction of cruel and unusual punishment for the transsexual prisoner.” Tedeschi, supra note 23, at 44.
230. See HUMAN RIGHTS WATCH, supra note 116, at 11.
231. See Rosenblum, supra note 8, at 530.
232. See id. (noting that segregation punishes transgender inmates for the
general populations’ intolerance).

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to prevent attacks and harassment by guards, a significant
233
source of the violence perpetrated on transgender prisoners.
Segregation reinforces the view that transgender prisoners
should face special consequences or restrictions because of
their gender non-conformity. Ironically, segregation often
234
burdens the victims more than the aggressors.

b. Transgender-only Wards
Some commentators have suggested that transgender
prisoners be housed in their own special wards, modeled after
235
the “gay” wards that already exist in some institutions.
Such a solution would doubtless impose greater financial
hardship upon smaller institutions with fewer transgender
236
prisoners.
Rosenblum counters this argument by suggesting that if the transgender population in a given jurisdiction
were too small, “the state could pool resources with other ju237
risdictions.”
Although such an approach would likely reduce the risk
of sexual assault and avoid problems of isolation associated
with administrative segregation, it is uncertain who would
qualify for placement in such wards. Rosenblum also notes
that gay and transgender prisoners were lumped together in
the New York prison system, and prison authorities often con233. See Schwenk v. Hartford, 204 F.3d 1187, 1192 (9th Cir. 2000) (transsexual plaintiff alleged attempted rape by a Washington state prison guard);
Rosenblum, supra note 8, at 525 (citing Meriwether, 821 F.2d at 410). Many
prison officials consider gay inmates legitimate targets for sexual violence. See
Robertson, supra note 101, at 446. Because transsexuality and homosexuality
are often conflated, officials may also consider transgender inmates appropriate
targets.
234. See HUMAN RIGHTS WATCH, supra note 116, at 11.
In nearly every instance Human Rights Watch has encountered, the
authorities have imposed light disciplinary sanctions against the perpetrator—perhaps thirty days in disciplinary segregation—if that. Often rapists are simply transferred to another facility, or are not moved
at all. Their victims, in contrast, may end up spending the rest of their
prison terms in protective custody units whose conditions are often
similar to those in disciplinary segregation: twenty-three hours per day
in a cell, restricted privileges, and no educational or vocational opportunities.

Id.
235. Rosenblum, supra note 8, at 535; see also Tedeschi, supra note 23, at 44
(“A ‘gender dysphoric’ wing . . . would reduce the risk of sexual assault that is
especially high for transsexual prisoners.”).
236. Rosenblum, supra note 8, at 535.
237. Id.

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238

flated transgenderism and homosexuality. Given the preva239
lence of such attitudes and the scarcity of prison resources,
it seems unlikely that “transgender-only” wards would remain “transgender-only” for long. Further, it is unclear
whether such a solution would be as cost-effective as placing
240
prisoners according to their subjective gender identity.

2. Placement According to Subjective Gender Identity
As an alternative to segregation, prison administrators
could place transgender prisoners according to their subjec241
tive gender identity. Such placement would reduce the risk
of sexual assault and thereby reduce the prison’s potential liability for § 1983 claims resulting from male prisoners’ vio242
lence against transgender prisoners.
However, even if subjective gender identity were allowed
to determine placement, advocates for transgender prisoners
still face the problem of having to rely on increasingly disfavored medical definitions of transsexuality to demonstrate
243
that their client’s gender identity is “genuine.” Without this
threshold determination, courts may not even entertain the
notion that the prisoners’ subjective gender identity should be
244
credited.
Further, such definitions may be used to exclude
non-transsexual transgender inmates from consideration for
placement based on gender identity.
Notwithstanding the difficulty in determining who would
qualify for placement according to subjective gender identity,
such placements would also pose other problems. For example, women’s prisons often lack resources to deal with prison245
ers’ basic needs.
As a result, a MTF transgender prisoner
238. Id. at 534.
239. Id.
240. But see id. at 535. Rosenblum asserts that transgender-only wards
would be more cost-effective than either genitalia-based placement or placement
according to subjective gender identity, because “the prison would not have to
manage the interaction between the transgendered and traditionally gendered
prisoners.” Id. But since placement according to gender identity is currently
rare, the costs associated with managing prisoners have yet to be determined.
Thus, it is difficult to estimate those costs, or compare them with the costs of
other solutions that have yet to be attempted.
241. See Tedeschi, supra note 23, at 44-46.
242. See id. at 45.
243. See supra Part II.A.2.
244. See supra Part II.A.2.
245. See Katherine A. Parker, Female Inmates Living in Fear: Sexual Abuse

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may be forced to choose between a facility with higher risk
and more resources, and one with lower risk and fewer resources. Although placing MTF transgender prisoners in
women’s prisons may reduce the risk of sexual assault, such
246
In
placement would not necessarily eliminate the risk.
Struckman-Johnson’s 1996 and 1999 studies, other female
inmates perpetrated half of all incidents of sexual abuse upon
247
female inmates.
In addition, the fear that a MTF transgender inmate
might have sex (consensual or non-consensual) with female
248
inmates could create additional problems,
regardless of
whether those fears have any basis in reality. These fears
parallel the prejudices transgender women face outside the
prison context with regard to sex-segregated bathrooms.
When attempting to use women’s restrooms, transgender
women often face irrational fear from others who view them
249
as a threat to the safety of non-transgender women.
Based
on false notions that transgender people are somehow inher250
ently predatory or voyeuristic, this fear fuels the argument
251
in favor of sex-segregated facilities.
Similarly, prison officials may argue that their failure to
house MTF transgender inmates in accordance with their
gender identity is justified by the threat they pose to the
252
safety of female inmates.
In an attempt to dispel concerns
about sexual assault, some commentators have noted that if
prison authorities administer hormones in appropriate
by Correctional Officers in the District of Columbia, 10 AM. U.J. GENDER SOC.
POL’Y & L. 443, 447-51 (2002) (discussing poor conditions in women’s prisons in
the District of Columbia).
246. See The Prison Rape Reduction Act of 2002: Hearing for S. 2619 Before
the S. Comm. on the Judiciary, 107th Cong. (2002) (statement of Robert W.
Dumond, Member, Board of Advisors, Stop Prison Rape, Inc.), 2002 WL
25098227.
247. See id.
248. See Rosenblum, supra note 8, at 531-33 (discussing problems with
placement of transgender inmates in women’s prisons).
249. See CURRAH & MINTER, supra note 49, at 58. “[T]he bathroom objection
tends to be voiced in gender-specific terms—the fear that transgender inclusive
laws will lead to ‘men in dresses’ invading the women’s bathrooms and posing a
threat to the security of the women using them.” Id.
250. See id. at 58-59.
251. See id. For more information on problems created by sex-segregated
bathrooms, see the web site of People in Search of Safe Restrooms at
http://www.pissr.org.
252. See Rosenblum, supra note 8, at 531.

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amounts, a pre-operative transsexual woman’s penis would
253
However, whether or not a transgender
not be functional.
inmate’s penis is functional should not be the determinative
factor. MTF transgender prisoners should not be presumed
dangerous or violent simply because they have not had genital surgery or hormone treatment.
In a similar vein, transgender women may face prejudice
from women who do not wish to share a cell or other prison
254
facilities with a transgender woman.
These prisoners may
argue that placement according to gender identity violates
255
Courts have been relatively generous
their privacy rights.
256
towards women prisoners’ privacy claims.
Such conflicts
may not prove fatal to a policy of placement according to gen257
In at least one case, Crosby v. Reyder-identity, however.
nolds, the court declined to hold that housing a pre-operative
transsexual in a women’s prison violated another female pris258
However, the court did not hold that
oner’s privacy rights.
prison authorities had unquestionable authority to house a
transgender inmate with female prisoners or that transgender inmates had a right to be housed where they felt safest; it merely found the officials not liable because the contours of the right to privacy were unclear as regarded housing
259
of transsexuals.
Thus, the question of whether housing a
MTF transgender prisoner in a women’s prison might violate
the privacy rights of female prisoners remains open. In addressing this question, courts should give great weight to the
idea that personal discomfort based on bias against transgender people is not a valid basis for determining where
260
transgender prisoners should be housed. Rather, legitimate
concern for transgender prisoners’ safety ought to trump
253. See id. at 531 (noting that a transgender inmate had undergone hormone treatment and lost penile function); Tedeschi, supra note 23, at 45 (noting
that the use of estrogen chemically castrates men).
254. See Rosenblum, supra note 8, at 531-33.
255. E.g., Crosby v. Reynolds, 763 F. Supp. 666 (D. Me. 1991).
256. See Bell et al., supra note 94, at 216 (describing the outcome of class action suits against male guards). See generally Rebecca Jurado, The Essence of

Her Womanhood: Defining the Privacy Rights of Women Prisoners and the Employment Rights of Women Guards, 7 AM. U. J. GENDER SOC. POL’Y & L. 1
(1999).
257.
258.
259.
260.

See Crosby, 763 F. Supp. at 666-70.
Id. at 670.
See id. at 669-70.
Interview with Dean Spade, supra note 202.

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261

Consequently,
complaints grounded in personal prejudice.
advocates for transgender prisoners have suggested that
transgender prisoners be housed “according to their gender
262
identity, or wherever they feel safest.”

B. Problems with the Subjective Prong of the Deliberate
Indifference Test
The requirement that the plaintiff show the officials had
knowledge of a substantial risk to his or her safety burdens
plaintiffs with the problems inherent in the prison hierar263
chy.
By virtue of their feminine appearance, transgender
264
Writing
prisoners face an increased risk of sexual assault.
a formal complaint in response to such an assault labels the
265
speaker a “snitch,” putting his or her life at risk.
Studies
like that by Alan Davis suggest that rape is drastically un266
derreported.
Courts nonetheless require that prisoner
plaintiffs present evidence indicating officials knew of facts
underlying a substantial risk, even though such evidence may
not be in their control, or may be destroyed by the time prison
267
authorities finally decide to produce it.
The fact that plaintiffs bear this burden creates an incen268
tive for guards to ignore problems.
If guards do not know
specific details, incidents of sexual assault and exploitation
cannot be documented. If they are not documented, guards
and higher prison authorities have a stronger argument that
they were unaware of the risk. Even if a guard could be held
liable for failure to investigate facts underlying a substantial

261. Id.
262. Id. For example, a FTM transgender inmate may prefer to be housed in
a women’s prison even though he does not identify as female, because he feels
unsafe in a men’s prison. Id.
263. See supra Part II.C.2 (discussing the effect of the prison hierarchy on
feminine inmates); see also Robertson, supra note 101, at 452 (arguing that the
victim of prison rape does not assume the risk of a prison environment that constructs some inmates as surrogate women, and therefore should not be held to
the deliberate indifference test).
264. See supra Part II.C.2.
265. Kupers, supra note 76, at 112.
266. See BROWNMILLER, supra note 113, at 264-65.
267. See Laderberg, supra note 200, at 359 (noting the difficulty of collecting
documentary proof that would constitute circumstantial evidence of deliberate
indifference); supra Part II.D.3 (discussing Farmer’s difficulties in conducting
discovery).
268. See HUMAN RIGHTS WATCH, supra note 116, at 11.

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269

risk, as Justice Souter seems to suggest, higher prison officials would still be insulated on the ground that they had no
270
knowledge of the omission. Because the deliberate indifference analysis focuses on the defendant’s state of mind,
higher-level officials can argue that they lacked first-hand
271
knowledge of the underlying facts.
Although the subjective prong of the deliberate indifference test may succeed in reducing the amounts of prisoner
civil rights claims, it also eliminates the possibility of adjudi272
cating some meritorious claims.
Prison authorities tend to
273
In
receive the benefit of the doubt on issues of credibility.
other contexts, class action suits have helped to overcome this
274
problem,
and have made prisoner litigation more costeffective. The cumulative effect of the class members’ complaints undercuts the potential defense that prison authorities had no knowledge of multiple rapes or threats of rape
275
within their prison. However, class action suits may not be
a viable option for transgender prisoners if the attack were an
isolated incident or not enough plaintiffs existed to certify a
class.

C. Exhaustion Requirements
Farmer’s approval of the exhaustion requirement in rape
276

First, internal
cases denies the realities of prison rape.
grievance processes are too slow to deal with the immediate
277
threat to safety rape or the threat of rape poses.
Once sex-

269. See Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994).
270. See James J. Park, Redefining Eighth Amendment Punishments: A New

Standard for Determining the Liability of Prison Officials for Failing to Protect
Inmates from Serious Harm, 20 QUINNIPAC L. REV. 407, 413-14 (2001).
271. Id. at 452-53. There is no respondeat superior liability for supervisors
under § 1983 or in Bivens actions. See Gossmeyer v. McDonald, 128 F.3d 481,
495 (7th Cir.1997) (regarding § 1983 claims); Noll v. Petrovsky, 828 F.2d 461,
462 (8th Cir. 1987) (regarding Bivens actions).
272. See HUMAN RIGHTS WATCH, supra note 116, at 54.
273. See Laderberg, supra note 200, at 327 (noting that class actions increase
inmate credibility).
274. See generally id.
275. See Laderberg, supra note 200, at 356 (describing the outcome of
Women Prisoners v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995), remanded by 93
F.3d 910 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1552 (1997)).
276. See Vetstein, supra note 151, at 898.
277. See Boston, supra note 175, at 98.

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278

ual harassment begins, sexual assault is not far behind.
The Federal Bureau of Prisons’ Administrative Remedy Program (ARP) can take up to 160 days to finalize the appeals
279
process on a claim.
Furthermore, the first step in the procedure is known in prison slang as a “cop out,” implicating the
280
previously discussed rule against snitching. In many grievance systems, inmates serve in clerical or administrative capacities, making it highly unlikely that complaints about
281
other inmates would remain confidential.
Without an effective administrative remedy system, exhaustion requirements impose an obligatory period of continued victimization with no guarantee of resolving the prob282
lem.
At worst, they extend the period of victimization
indefinitely because of the risks attendant to being labeled a
283
snitch.
The failure to report also contributes to the difficulty of obtaining documentary evidence that officials knew of
the risk, creating a vicious cycle that grinds away at the
284
rights protected by the Eighth Amendment. Exhaustion requirements have been criticized particularly where the plaintiff fears he or she will contract AIDS after being threatened
with rape by someone who is or who claims to be HIV posi285
tive.

D. The Potential for Change in the Handling of Prisoner
Rape Claims
Despite heavy criticism of exhaustion requirements and
the deliberate indifference standard, neither the PLRA nor
the Farmer decision are likely to be abandoned anytime
286
soon. The studies and grants authorized by the Prison Rape
278. See Robertson, supra note 136, at 14-15.
279. See Noguera v. Hasty, 99 Civ. 8786 (KMW) (AJP), 2000 U.S. Dist.
LEXIS 11956, at *34-36, 32 n.21 (S.D.N.Y. 2000) (describing the Administrative
Remedies Program).
280. See id. at 34.
281. See Boston, supra note 175, at 98.
282. Cf. Schlanger, supra note 202, at 1653-54 (predicting that cases that
would have succeeded in court before the PLRA will now be dismissed for failure to exhaust), 1695-96 (opining that a good administrative remedy system
“can serve simultaneously to educate upper level officials about what is happening on the agency front lines and to resolve some disputes”).
283. See supra Part II.C.1 (noting the rule against snitching).
284. See id. (discussing underreporting).
285. See Vetstein, supra note 151, at 897-98.
286. Schlanger, supra note 202, at 1697 (asserting that the current political

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Elimination Act focus on prevention and investigation rather
287
than on increasing injured prisoners’ access to the courts. If
future efforts to address the issue of prison rape will center
on rape prevention and creation of more effective administrative remedies, those charged with drafting national standards
for reducing prison rape must consider the risks posed by
genitalia-based placement. The National Prison Rape Reduction Commission (“Commission”) has the opportunity to reduce the risk of sexual assault by condemning genitalia-based
placement policies.
V. PROPOSAL
Rather than viewing transgender inmates as “trouble288
makers,” and segregating them, prison officials must end
the practice of genitalia-based classification. Prison officials
should classify transgender inmates in accordance with their
289
gender identity, or wherever they feel safest.
In their review of existing federal, state, and local government policies
regarding prison rape, the members of the Commission
should devote attention to the risks to personal safety im290
posed by genitalia-based placement.
In accordance with its
291
authority to recommend national standards, it should recommend that the practice of genitalia-based placement be
abolished, and such recommendation should be adopted as
the final rule pursuant to 42 U.S.C. § 15607(a)(1). Institutions failing to adopt this standard should be sanctioned with
a reduction in federal funding, as provided for in

makes it unlikely that Congress will revisit the PLRA); see 42 U.S.C.
§ 15601(13) (2003) (incorporating the Farmer standard into the congressional
findings for the Prison Rape Elimination Act).
287. See 42 U.S.C. § 15605(a) (authorizing grants for the purpose of providing “funds for personnel, training, technical assistance, data collection, and
equipment to prevent and prosecute prison rape”); Id. § 15606(d)(2)(N) (requiring that the National Prison Rape Reduction Commission assess existing systems for reporting incidents of prison rape).
288. See Donaldson, supra note 76, at 119 (noting that “queens” are often
scapegoated and harassed).
289. Interview with Dean Spade, supra note 202; see also supra Part IV.A.
290. Cf. 42 U.S.C. § 15606(d)(2)(F) (directing that the Commission’s study
shall include “an assessment of the characteristics of inmates most likely to be
victims of prison rape and the effectiveness of various types of treatment or programs to reduce such likelihood”).
291. 42 U.S.C. § 15606(e)(A) requires the Commission to draft standards relating to the classification and assignment of prisoners.

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§ 15607(b)(2). Placement policies should privilege the safety
of inmates if Justice Souter’s assertion that “gratuitously allowing the beating and rape of one prisoner by another serves
292
‘no legitimate penological objectiv[e]’” is to have any practical meaning.
VI. CONCLUSION
There is no easy answer to the question of how to protect
transgender inmates. By virtue of their feminine appearance
and the nature of the prison hierarchy, MTF transgender inmates housed in men’s prisons are disproportionately tar293
geted for rape and other violence.
Many of them may be
able to raise colorable § 1983 claims under Farmer. Yet, the
government has limited resources to devote to processing inmate’s complaints, and has chosen to address this problem by
limiting prisoner-plaintiffs’ access to the courts and burden294
ing them with legal standards that are difficult to meet.
The solution cannot be that we simply obstruct the
means of obtaining relief in order to avoid the consequences of
our classification system. The suggestion offered in this
comment attacks the problem by changing the system of genitalia-based placement to reduce the risk of harm. MTF
transgender prisoners enter the prison system at a significant
disadvantage. The government’s classification system should
not reinforce this disadvantage; rather, it should take steps to
mitigate the risk.

292. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Hudson v.
Palmer, 468 U.S. 517, 548 (1984)).
293. See supra Part II.C.2.
294. See supra Part II.D.