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A transgender inmate at the D.C. Jail has filed a class action lawsuit against the District of Columbia for a D.C. Department of Corrections policy that has placed her in a men’s unit based on her genitalia.
According to the complaint, Hinton was detained in the D.C. Jail on April 26, following an initial court appearance on a charge of unarmed burglary with the intent of stealing $20.
Although Hinton is transgender and identifies as a female — and it even listed in Superior Court documents as female — she was placed in a men’s unit.
“By housing Sunday Hinton in the men’s unit, DOC has effectively erased her identity as a woman,” Rachel Cicurel, a staff attorney for the Public Defender Service for the District of Columbia, said in a statement. “This is unconscionable and must be rectified immediately.”
The D.C. arm of the American Civil Liberties Union and the Public Defender Service filed the lawsuit on behalf Sunday Hinton.
They allege that the Department of Corrections’ policy is unconstitutional, violating both her rights to equal protection and due process under the Fifth Amendment to the U.S. Constitution, as well as the DC Human Rights Act’s prohibition on discrimination based on gender identity and federal regulations under the Prison Rape Elimination Act.
Megan Yan, an attorney with the ACLU of the District of Columbia, told Metro Weekly that the DOC’s policy is both discriminatory and dangerous, placing transgender women at increased risk of sexual violence or forcing them into solitary confinement and potentially causing a host of mental health problems.
“Because the DOC policy essentially contains a presumption in favor of housing transgender individuals based on their anatomy and not gender identity, we think that is what’s causing results like what’s happening with Miss Hinton,” Yan said. “Miss Hinton feels strongly that she’s a transgender woman, and that means she’s a woman and she deserves to be treated as such. It’s very disappointing, harmful, and a denial of her personhood to house her in a men’s unit.”
Hinton’s lawsuit claims that Michelle Wilson, of the Department of Correction’s Office of the General Counsel reached out to Cicurel, Hinton’s public defender, informing her that DOC policy is to house inmates based on their anatomy, and asking if Hinton had “male parts,” which would require she be housed in the men’s general population or in protective custody within a men’s unit.
Transgender individuals may be reassigned based on a recommendation by DOC’s Transgender Housing Committee, which is comprised of DOC staffers, a doctor, a social worker, a mental health clinician, and members of the local transgender community.
However, when Cicurel reached out to question Hinton’s placement in a men’s unit, she was informed that the committee has not met since January 2020. As a result, Hinton has never received a hearing before the committee.
Furthermore, Cicurel claims she was told by DOC staff that when the committee does meet, it prioritizes criteria such as whether a person has had “full [gender] reassignment surgery” and whether the individual has ever been in a “heterosexual relationship.”
The complaint also alleges that Traci Outlaw, a member of the committee with whom Cicurel spoke, said that if a transgender woman had not undergone gender confirmation surgery but had been in a heterosexual relationship at any point in their lives, the DOC would be concerned about the presence of a trans woman in a women’s unit with a “working penis.”
And, Outlaw said, even if everybody on the committee believes the best placement for a trans woman is a women’s unit, the final decision is left up to the warden.
Yan told Metro Weekly that while the Transgender Housing Committee stopped meeting due to COVID-19, its failure to resume meetings virtually or telephonically amounts to an effective disbanding — and thus makes it more difficult for transgender individuals to be housed according to their gender identity.
“The policy is that individuals who come into DOC custody are automatically assigned housing based off of anatomy and not gender identity. And there’s no other criteria that’s taken into account. This is unconstitutional,” Yan said. “It violates the D.C. statutes which prohibit discrimination on the basis of gender identity or expression. And for that reason, we sued the District to get to get immediate relief for Miss Hinton, and on behalf of all of the transgender individuals who are detained in DOC custody in units that are inconsistent with their gender identity.”
Under the DOC’s genitalia-focused policy, the only option for Hinton, besides being housed in general population in the men’s unit, is “protective custody,” which Hinton’s lawyers argue is just another name for solitary confinement.
Hinton’s lawyers argue that protective custody will negatively impact her mental health, subjecting her to extreme isolation, intensifying her feelings of anxiety, and potentially even creating problems with her concentration, memory, and ability to perform simple, repetitive tasks.
Her lawyers have also noted that more than half of inmate suicides involve prisoners who were held in solitary confinement, despite the fact that they comprise only 3% to 6% of the total prisoner population.
In addition to a judgment in her favor, Hinton is asking for a temporary restraining order to stop the DOC from enforcing its policy, to be transferred to a women’s housing unit, an injunction prohibiting the department from housing other trans individuals based solely on their genitalia.
The lawsuit also asks that the Transgender Housing Committee be revived, meet regularly, and that every trans prisoner in the department’s custody be provided with at THC hearing within 72 hours of their intake.
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