Courts, prisons and gender-variant women

This post follows my previous post about Estate of DiMarco v. Wyo. Dept. of Corrections.

Why did Wyoming prison officials feel it was necessary to segregate Ms. DiMarco for 14 months in unusually harsh conditions? According to the district court, officials

had a legitimate reason to believe there was a potential, substantial risk of serious harm to either other WWC inmates or Plaintiff due to Plaintiff's physical characteristics [i.e., her penis].
DiMarco v. Wyoming Dept. of Corrections, 300 F.Supp.2d 1183, 1193 (D.Wyo. 2004)

This statement is at once refreshing and frustrating. Refreshing, because it shows a move away from an exclusive concern with the alleged threat posed by gender-variant women to other women of gender-segregated spaces, which has dominated legal and policy discussions in the contexts of prisons, homeless shelters, and bathrooms alike.

Here, the district court took notice of the Supreme Court's decision in Farmer v. Brennan; best known for establishing an impossibly high standard for Eighth Amendment claims against prison officials, that case concerned a trans woman who suffered horrific physical and sexual abuse when housed with male inmates. The district court rightly viewed Farmer as a cautionary tale about the extreme vulnerability of trans women in segregated spaces, and recognized that this risks exists even in an all-female space. The appellate court approvingly noted this concern, as well.

But prison officials, and both reviewing courts, also viewed DiMarco as potentially as much of a threat to other inmates as they were to her. Both courts noted that a majority of the women housed in the facility where DiMarco was sent had been victims of rape at some point. The implication, of course, was that anyone with a penis represents a threat of sexual violence -- a particularly bizarre conclusion when the person at issue not only lives and identifies as a woman, but (as both courts noted) is incapable of an erection. And while both courts emphasized DiMarco's "limited and unreliable background information" in this context -- she had changed her identity more than once, apparently in response to the stigma of her unusual anatomy -- neither considered that she had been convicted of a financial crime and had no history of violence.

Such fears are, of course, widespread, and therefore institutions -- be they prisons, shelters or workplaces -- must address them. But well-founded fears deserve one sort of response, and widespread but baseless ones another. Simply not revealing the information that would be likely to cause baseless fear is one possible response, while reassuring those concerned that they have nothing to fear is another. This is a delicate matter, to be sure, but punishing an individual for other people's fears is not a reasonable response.

As one anti-violence advocate has noted in the context of trans woman in women's shelters:

Stereotypes of transgender people attacking women come from movies and television shows that inaccurately portray transgender people as dangerous and abusive. This is far from the truth. When it comes to transgender people, the more serious risk is that violence will be committed against transgender people by others. Also, shelters need to learn that it is a myth that woman-only space is always safe. The occurrence of woman-to-woman abuse by both straight and lesbian women is real, and shelters need clear rules against it. By enforcing these rules for all residents, transgender and non-transgender, these spaces can become truly safe.
From Transitioning Our Shelters: A guide to making homeless shelters safe for transgender people

Still, DiMarco's case was treated more sensitively by the courts (if not, of course, the prison) than one have expected given the history of these issues when trans women are involved. Was the courts' sensitivity because they were convinced DiMarco had a congenital condition and was not transsexual? Certainly, the body of jurisprudence involving trans people -- wherein hypothetical intersex individuals are often discussed by way of contrast -- suggests as much. And yet the actual issues would have been no different had DiMarco been transsexual rather than intersexual.

For more information on intersex-related issues generally, see the Intersex Society of North America'. On the contested term "intersex" -- disfavored of late by doctors -- see this page.