Maybe you've heard about the Maryland State Police spying scandal. Basically, in 2005-06 the state police were spying on a number of peace, anti-death penalty and other progressive grassroots groups in the state, on the pretense that they were a security threat. Turns out that among those groups was Equality Maryland - yes, a bunch of LGBT lobbyists in suits were deemed a security threat.
And speaking of witchhunty goings-on, remember U.S. Attorney Leslie Hagen, who was fired from the Bush Justice Department for being a lesbian? Well, the DOJ has finally filled her position by hiring -- Leslie Hagen. How's that for change?
Colombia's highest court has held that the South American nation must provide government benefits to same-sex couples on the same footing as heterosexual married couples. No translation of the opinion is as yet available, but hunter of justice excerpts a statement on the ruling from Colombia's leading LGBT rights group. Leonard Link - which always has excellent coverage of LGBT and HIV issues in immigration and asylum law - has a thoughtful discussion of the ramifications of this decision for asylum seekers. The issue is an interesting one because, like South Africa, Colombia has seen robust recognition of constitutional rights for sexual and gender minorities, and at the same time continues to see persistent, widespread homophobic violence. Meanwhile, Constitutional Law Prof blog notes that this is not the trailblazing decision from this court on matters of gender and sexuality; in the 1990s the court rendered a series of decisions placing limits on genital reconstruction surgeries for children born with ambiguous genitalia.
[Yes, Colombia was initially misspelled as "Columbia." You would, of course, expect this sort of thing from Columbia.]
Meanwhile, Bolivian voters have endorsed a new constitution. The new document is most notable for seeking to give more rights to indigenous people, and for allowing President Evo Morales to run for another term. But it's also notable that unlike the former constitution, the new one does not contain bans on abortion or same-sex marriage - absences which angered some Catholics. Indeed, the new constitution apparently bans discrimination on the basis of sexual orientation, which some think could lead to rulings in favor of marriage equality. This looks like another case of LGB civil rights benefiting from broader political changes led by a coalition that happens to favor equality, even though there is far from a broad national consensus on equality issues.
Showing posts with label intersex. Show all posts
Showing posts with label intersex. Show all posts
Monday, February 2, 2009
Thursday, February 1, 2007
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
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:
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.
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.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.
From Transitioning Our Shelters: A guide to making homeless shelters safe for transgender people
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.
Wednesday, January 31, 2007
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.
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.
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.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).
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.
Subscribe to:
Posts (Atom)