State prison officials told a federal judge Wednesday that they are refusing to transfer a transgender inmate to the state women’s prison because they believe they have already made reasonable accommodations for her in a men’s prison and are concerned she would disrupt the prison climate if she were housed with women inmates.
Richard C. McFarland, a lawyer for the Massachusetts Department of Correction, said the 53-year-old transgender woman has been provided with hormone therapy, mental health counseling, a mammogram, a single cell, facial hair removal products, and a separate shower time at MCI-Norfolk, an all-male, medium-security facility.
“We believe we have many plans in place that address the concerns of the plaintiff,’’ he told Judge Richard G. Stearns. McFarland added that if the department agreed to the inmate’s request to be transferred to MCI-Framingham, the state women’s prison, “there may be problems with other inmates.’’
“It may not be smooth sailing,’’ he said.
But the prisoner, who sat with her lawyers and listened quietly during Wednesday’s hearing, argues the accommodations she has been given have failed to protect her from groping and taunting by male prisoners and male correctional officers who routinely harass her because she identifies as a woman.
The prisoner, who has lived as a woman and received hormone therapy for nearly 40 years before being incarcerated, says that, when she showers, male prisoners can easily watch her from an upper tier, where they “verbally taunt me with comments about my ‘boobs’ and my female body, and shout out what they would like to do to me sexually,’’ she wrote in a sworn statement to the court.
Once, when she was strip-searched, male guards forced her to stand, cuffed and naked, for 30 minutes in front of the open door to her cell, exposing her body to at least a dozen male prisoners who gawked and made crude sexual remarks about her breasts, she says.
“The humiliation, shame, degradation and fear I frequently experience has led to extreme anxiety, depression, nightmares, sleeplessness, and a constant fear of being harassed and physically harmed or raped,’’ the inmate wrote.
She has been subjected to the mistreatment, she wrote, “despite living socially and legally as a woman outside prison walls and having a longstanding gender dysphoria diagnosis that is recognized by the DOC.’’
Gender dysphoria is a medical diagnosis that describes the disconnect felt between one’s sex at birth and one’s gender identity.
Jennifer L. Levi, the woman’s lawyer, asked Stearns to immediately order the prisoner’s transfer to MCI-Framingham, saying her mental and emotional health are deteriorating from the constant degradation she suffers in an all-male prison.
“The harm she is experiencing is real and serious and devastating,’’ said Levi, who is director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders.
Stearns did not immediately rule from the bench but said he would take the request under advisement. The prisoner is serving a four-year sentence for a nonviolent drug offense and is due to be released in September 2019.
The woman’s lawsuit, which she filed in November, accused the state of violating the Americans with Disabilities Act by refusing to transfer her to a women’s prison, calling the transfer a required part of her treatment for gender dysphoria.
The lawsuit also claims prison officials are discriminating against her because she is transgender, in violation of her constitutional right to equal protection.
The Department of Correction argues the inmate is not protected by the 1990 Americans with Disabilities Act because Congress specifically exempted people with “gender identity disorders not resulting from physical impairments.’’
Even if she did have a claim under the ADA, the department says the law would only require it to provide “reasonable accommodation,’’ which “does not mean that prison officials must accede to every demand of an inmate.’’
A group of mental health, disability rights, and transgender advocates have firmly rejected that argument, writing in a court brief that Congress’ decision to exclude transgender people from the 1990 law is a throwback to a less enlightened time, “a regrettable snapshot, not a blank check for bias in perpetuity.’’
“There is absolutely no reason why Congress would systematically exclude any and every medical condition ever associated with transgender people other than to harm them,’’ wrote the advocates, who include lawyers from of the Disability Rights Education & Defense Fund and the Bazelon Center for Mental Health Law.
Levi also blasted the state’s argument that a transgender prisoner would cause problems if she were housed with other female prisoners, calling that “exactly the kind of biased, generalized objections which are rejected under the ADA.’’
“The ADA is premised on the idea that some people might cause discomfort in other people,’’ Levi said, and so Congress passed the law to ensure that such biases do not prevent them from fully integrating in society.
Levenson can be reached at michael.levenson@globe.com. Follow him on Twitter @mlevenson.
