Tuesday, March 10, 2020

Muslim Inmate Objects to Strip Search with Transgender Female-to-Male Guard Watching

By Eugene Volokh - March 10, 2020 at 08:02AM

In West v. Kind, Muslim convert Rufus West objected to being seen by prison guard Isaac Buhle when being strip-searched. "Although Buhle was assigned female at birth, he identifies as a man," but "[West] asserts that Islamic law prohibits the plaintiff from exposing his nakedness to anybody, but especially to females, as defined by genitalia at birth." He sued under RLUIPA (the Religious Land Use and Institutionalized Persons Act), under which religious prisoners are generally entitled to exemptions from generally applicable rules unless denying the exemption is the least restrictive means of serving a compelling government interest. Yesterday, Judge Pamela Pepper (E.D. Wisc.) rejected West's claim for various reasons, but chiefly this:

Prior to July 2, 2016, there were federal courts within the Seventh Circuit which had concluded that a transgender person who argued that he or she was treated differently than others based on their transgender status had a colorable equal protection claim. The Department of Corrections may have been aware in the summer of 2016 that treating transgender staff differently than non-transgender staff could give rise to claims under the equal protection clause.

It is very likely that by July 2, 2016, the defendants were aware of the DOJ guidance on treatment of transgender staff in conducting cross-views and searches in a way that would not violate PREA. The DOJ guidance is dated in 2014. When Buhle was hired in January 2016, Eckstein and others asked the human resources department (presumably of the DOC) about the assignment of gender-specific duties to Buhle. The human resources department responded that if an employee identified as a certain gender, institution management "should respect that and assign duties accordingly."

In Holt v. Hobbs, the Supreme Court stated that application of the compelling interest test "contemplates a '"more focused"' inquiry and '"required the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened."'" A court must look at the harm that the defendants allege would be caused by giving an exemption to the plaintiff and balance it against the interest in enforcing the challenged government action—the defendants' assignment of Buhle to conduct searches—in the plaintiff's context.

The court concludes that the defendants could have met their burden of showing that they had a compelling government interest in not violating employees' equal protection rights and in respecting employees' gender identification, even in the plaintiff's specific context. Buhle was hired as a male corrections officer and was told that he'd be performing the same duties as other male corrections officers. He was told that his duties would include all the duties of a male corrections officer, including performing strip searches. For the defendants to then prohibit Buhle from performing strip searches would have put the defendants at risk for a claim that they were discriminating against Buhle based on his transgender status, even if requiring Buhle to perform those duties ended up imposing a burden on the plaintiff's exercise of his religion on one occasion….

The defendants [also] argue that … to make sure that strip searches are conducted in a consistent and timely way, certain "positions" are assigned to conduct the searches. They argue that if inmates were able to decline a search based on their perception of the searching staff member's gender, it would be "logistically impossible" for them to post assignments.

Buhle is a corrections officer. Corrections officers are required to perform strip searches as needed. Presumably there are many occasions when strip searches are needed—when officers suspect inmates have contraband on (or in) their persons, when new inmates arrive at the institution, after inmates have met with outside visitors. The only way for the defendants to avoid the possibility of Buhle strip searching an inmate whose religious beliefs might be offended, or acting as the observing officer when someone else strip searched an inmate whose religious beliefs might be offended, would be to assign Buhle to a position where he never would be required to participate in strip searches, or to assign him to an area of the prison in which there were no inmates whose religious beliefs might be offended. Even if either of these options were possible, the logistics would constitute more than an effort to save a few dollars and

more than a "bureaucratic desire to follow the prison system's rules."

The court acknowledges that RLUIPA "requires prison to change their rules to accommodate religious practices," and that the existence of a rule, in and of itself, "is not a compelling obstacle to change." But the degree of interference with the prison's ability to assign its staff to prevent the possibility that at some point, there might be a need to strip search the plaintiff and Bruhle might be one of the assigned officers in that place at that time, indicates to this court that assigning Bruhle to the same duties as other male officers was the least restrictive means of serving the prison's need for effective management….

Finally, the defendants argue that they have a compelling government interest in protecting the privacy of employee medical information. They say that "[i]f specific duties were dependent on the staff's private medical information, inmates are likely to be able to determine personal information

about staff that should remain confidential." They say that if inmates could learn about a staff member's medical information, it could put that staff member at risk for harassment and abuse, make staff vulnerable to

threats of blackmail and could create the potential that inmates could "try to take advantage of a situation in which they can control which staff are permitted to strip search them based on any nuance found in their stated

religious beliefs." In their reply brief, the defendants point out that even though the plaintiff claims Buhle was candid with inmates about his transition, the plaintiff had demanded discovery relating to whether Buhle was born with a female physiology.

Most of this argument is unpersuasive. The defendants seem to believe that the only way an inmate might find out about a staff member's medical situation is if staff members with certain medical histories were assigned to certain tasks. Inmates can observe physical conditions. They likely can conclude that a staff member with a hacking, persistent cough is a smoker, or has lung cancer. They likely can conclude that a staff member with a black eye has been in a fight, or has fallen.

Inmates can look at a person who has physical characteristics traditionally associated with someone of the female gender and conclude—perhaps correctly, perhaps incorrectly—that that person may not always have identified himself as male. They can make those observations, and draw those conclusions, even without medical records, and even if they are wrong. Inmates likely are capable of finding reasons to harass or abuse or try to blackmail staff members even if they do not have access to the staff members' medical records.

This "medical privacy" argument is actually the defendants' argument that they have a compelling government interest in prison administration, stated in a different way. Prison staff members come in all shapes and sizes, like all humans. Some men may be short and slight and have little facial hair. Some may have visible breasts. Some may seem—to the plaintiff—to behave in what he considers to be "effeminate" ways.

The plaintiff himself admits that he objected to Buhle's participation in the search, not because he knew Buhle was transgender, but because having viewed Buhle's physical appearance, the plaintiff believed that Buhle was a woman. Taken to its logical conclusion, the plaintiff could argue that being strip searched, or seen naked, by someone who seems feminine to him substantially burdens his religious practice. He could argue that being seen naked or strip searched by someone whom he perceives to be homosexual imposes a substantial burden on his religious practice. He could, as the court has indicated, argue that being seen naked or strip searched by anyone who isn't his wife could substantially burden his religious practice. Such arguments would make it impossible for the defendants—or any other prison officials in any facilities where the plaintiff may be incarcerated between now and his release—to perform their jobs as members of a prison staff….


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