Tenth Circuit Reverses Award for Intersex Inmate

Back in early 2005 I wrote about Miki Ann DiMarco's court victory against the Wyoming Department of Corrections- a victory the Tenth Circuit just reversed. DiMarco was a woman born with atypical sexaul anatomy.

The Plaintiff apparently was abandoned by her natural parents at birth and was raised in foster homes and institutions. According to the Plaintiff, her identity was often changed due to members of the community discovering her gender issue and her wanting the public to not judge her by her physical characteristics.

Dimarco v. Wyo. Dept. of Corr'ns, 300 F.Supp.2d 1183, 1189 (D.Wyo. 2004).

She eventually got into trouble for financial crimes. Prison authorities apparently flipped when, during processing, they discovered her condition. Curiously, the district and appellate courts would characterize that condition differently: both described her as intersexed and noted she had a small penis, but whereas the district court stated that she was born with no gonads at all, the appellate court stated in a footnote that she had had testicles that were removed in her youth. In any event, DiMarco had lived as a woman at least since puberty and had three ex-husbands, but prison authorities "determined [her] to be a male" and segregated her from other inmates.

Well, "segregated" looks to be a bit of a euphemism. According to the district court, she served 14 months "in segregated confinement which was at least as rigorous as the punishment reserved for seriously violent prisoners." The court contrasted the "almost dormitory style" of ordinary inmate housing with the "startling" and "almost dungeon-like" conditions in which DiMarco was kept. While the warden sought advice from higher-ups as to whether this situation risked legal liability and could better be addressed through a change of venue or sentence, the department bosses "apparently put their heads in the sand on this issue."

The court "reluctantly" concluded that DiMarco could not meet the very high bar for Eighth Amendment claims, it found a violation of her right to procedural due process. While segregation might have been a rational initial response to an unusual situation, continuing it for 438 days was "completely arbitrary and capricious." In addition to imposing nominal damages, the court scolded the authorities to developed a procedures for such uncommon situations in the future.

Last week, the Tenth Circuit, although "confident prison officials could have done better," held that the "petty deprivations" DiMarco faced did not present such an "atypical and significant hardship" as to violate due process. In other words, she'd been treated unfairly, but not unfairly enough.

While the appeal was pending, DiMarco died, and her estate must now deal with her legal expenses. While it may be too much to hope that prison officials elsewhere will take a lesson from a case in which the state ultimately prevailed, one can at least expect that Wyoming officials will now think twice before treating gender-variant people so carelessly. A more interesting question is what courts have, and haven't learned in cases like this -- and that will be the subject of my next post.