Sometimes, in corrections, we have to balance seemingly contradictory rules and policies mandated by conflicting laws intended to protect the rights of different groups. A perfect example can be seen in a recent Wisconsin case involving laws intended to protect gender identity and those that safeguard the religious liberties of prisoners.
In an article in the ABA Journal, “Strip search by transgender guard violated inmate’s religious rights, 7th Circuit says,” Debra Cassens Weiss writes, “The 7th U.S. Circuit Court of Appeals at Chicago ruled Sept. 16 for Rufus West, an inmate at the Green Bay Correctional Institution in Wisconsin.”
According to court records, West filed a lawsuit against Dylon Radtke, warden of the Green Bay Correctional Institution, asserting that Isaac Buhle, a corrections officer who is a transgender man (assigned female at birth) participated as the observing officer in a strip search of West in July 2016. According to the complaint, a cisgender male (assigned male at birth) guard actually conducted the physical strip search while the transgender corrections officer observed from nearby.
In the lawsuit, West claimed that “strip searches by prison guards who were female at birth conflict with his religious faith, which bars him from exposing his body to a woman other than his wife.”
Weiss noted, “The 7th Circuit ruled that the prison violated West’s rights under the Religious Land Use and Institutionalized Persons Act of 2000” (RLUIPA), a federal law preventing prisons from “substantially burdening a prisoner’s exercise of religion unless doing so is the least restrictive means to further a compelling governmental interest.”
According to Weiss, the “appeals court also said exempting West from strip searches involving the transgender guard isn’t an adverse employment action that would violate the guard’s rights under Title VII of the Civil Rights Act of 1964. Nor is there a violation of the transgender corrections officer’s rights under the equal protection clause of the 14th Amendment.” Part of the justification for the decision was the prison’s assertion to West that he would be disciplined if he refused to agree to future strip searches conducted by the same transgender corrections officer.
This lawsuit stems from an incident that occurred in July 2016. After a visit from a friend from outside the prison, inmate Rufus West was ordered by Officer Buhle to submit to a standard post-visit strip search. As a transgender man, Buhle had been assigned by prison administrators to work in the state’s male correctional facility.
As noted in the decision, according to Wisconsin Department of Corrections policy, a strip search involves “the examination of [an] inmate’s clothing and body and a visual inspection of his or her body, so as to permit a visual inspection of the person’s breasts, buttocks or genitalia.” State policy mandates that strip searches to be “conducted in several circumstances, including when an inmate leaves or enters the prison, before certain movements within the prison, before and after visits with those outside the prison, during periodic lockdowns, or at any time as directed by a prison supervisor.” In addition, the rules require the presence of two staff members during a strip search: one to conduct the search, who observes the inmate directly, while another who witnesses the search to make certain it is conducted properly. Strip searches at this particular facility are done in three-sided stalls with a privacy curtain at one end.
Knowing Officer Buhle’s status as a transgender man, West objected to having Buhle conduct the strip search, citing religious reasons. West requested that the search be conducted by one of the other officers in the area, who were all cisgender males.
One of the other officers agreed to this request, but according to West, Buhle still observed the search and “saw him naked from the observation position.” According to the inmate, Officer Buhle stood in the curtained opening while the other officer conducted the search within the designated stall. Prison officials did not dispute this claim during the trial.
Following the search, West filed a complaint with the warden in which he asked to be exempted from future “cross-sex strip searches.” His request was denied, with the further comment that “[T]he officer in question is a male and is qualified to complete these duties. If in the future you are directed to submit to a strip search by this individual or any other male staff member[,] it is my expectation that you will comply.”
The policies of the Wisconsin Department of Corrections in place at the time of the incident categorically state that “Except in emergencies, a person of the same sex as the inmate being searched shall conduct the strip search.” This is in line with the federal Prisons and Jail Standards rule 28 C.F.R. Part 115, the National Standards to Prevent, Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act (PREA), which states, “The facility shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.”
According to the West v. Radke opinion, neither federal guidelines nor Wisconsin Department of Corrections policies define whether “gender” is the same thing as “sex,” so there is no official agreement on whether searches conducted by someone of the inmate’s gender (but who was assigned a different sex at birth) would constitute a “cross-gender” strip search.
This leads to the question of how should those working in correctional facilities determine whether a strip search of a cisgender male inmate by a transgender man (or a cisgender female inmate by a transgender woman) constitutes a “cross-gender” or “cross-sex” strip search, as defined in 28 C.F.R. § 115.15.
Consideration should be given to the correctional staff member involved. The National PREA Resource Center provided guidance for facilities in its Frequently Asked Questions (April 23, 2014) noting that “Facilities should verify whether there are any specific legal authorities, statutes, or personnel policies that may be relevant to this determination. Absent any specific authorities, facilities should make an individualized determination based on the identified gender of the staff member, and not solely on the basis of the biological gender. This decision should be made at the request of, and in conjunction with, the transgender staff member. The determination may also change during the course of employment, as part of an on-going adjustment process, or as the staff member gains real-life experience living as a person of the identified gender.”
To protect inmates, agencies should review the facility policy to make certain it specifically prohibits cross-gender or cross-sex strip searches “except in exigent circumstances.” The policy should require that there be supporting documentation as to what specific exigent circumstances would justify a cross-gender or cross-sex strip search taking place. Threatening to discipline an inmate or prisoner for failing to comply with a cross-gender strip search, while asserting their rights under RLUIPA, is never acceptable, and it can be costly for the organization. For example, during West’s appeal, the 7th circuit court noted in its decision that it was irrelevant that the transgender corrections officer had not participated in any other searches after the 2016 search. The court held that under RLUIPA “a substantial burden can exist even if it is uncertain when a prisoner will next be put to the choice of violating their religious beliefs or facing discipline.”
The court also saw a potential Fourth Amendment violation under a 7th Circuit 2020 decision, Henry v. Hulett, which protects a prisoner’s right to bodily privacy, “albeit in a significantly limited way.” The appeals court remanded, so West could develop that claim.
Chief Judge Diane S. Sykes wrote the opinion in West v. Radtke.
- Weiss, Debra Cassens. “Strip search by transgender guard violated inmate’s religious rights, 7th Circuit says.” ABA Journal, September 21, 2022: https://www.abajournal.com/web/article/strip-search-by-transgender-guard-violated-violated-inmates-religious-rights-7th-circuit-says
- Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): https://www.justice.gov/crt/religious-land-use-and-institutionalized-persons-act
- Title VII of the Civil Rights Act of 1964: https://www.law.cornell.edu/wex/title_vii
- Rufus West v. Dylon Radtke, Warden, et al. U.S. Court Appeals for the Seventh Circuit, September 16, 2022: https://www.govinfo.gov/content/pkg/USCOURTS-ca7-20-01570/pdf/USCOURTS-ca7-20-01570-0.pdf
- Prison Rape Elimination Act, Prisons and Jail Standards: United States Department of Justice Final Rule, May 17, 2012: https://www.prearesourcecenter.org/sites/default/files/content/prisonsandjailsfinalstandards_0.pdf
- National PREA Resource Center, Prisons and Jail Standards: https://www.prearesourcecenter.org/implementation/prea-standards/prisons-and-jail-standards
- National PREA Resource Center, Frequently Asked Questions: https://www.prearesourcecenter.org/frequently-asked-questions/what-gender-should-transgender-staff-be-considered-purposes-complying