When Kesha Williams went to jail in Fairfax County, Virginia, in November 2018, she had been living as a woman for two decades. At first, she was put with female inmates and given women’s underwear.
But when she asked about getting the hormone treatments she had been taking for 15 years, jail officials learned she was transgender and had not had genital surgery.
From then on, she said in a federal lawsuit, she was housed with men, harassed by deputies during searches, and ogled and groped by inmates when she was showering or walking through the jail.
Her bras were taken away, she said, and she was told she couldn’t buy one at the commissary. Her hormone treatments were not provided for weeks at a time.
When she spoke to a counsellor, she said, she was told “boys will be boys” and to wait out her time.
Instead, before even leaving the jail, she contacted a lawyer. “I have to fight for the next girl, every other girl who has to go through this,” Williams, 41, said in an interview. “You’re being physically, mentally abused.”
Williams, who lives in Silver Spring, Maryland, is suing under a relatively new interpretation of disability law that has been embraced in some federal courts and met with scepticism in others. The US Court of Appeals for the fourth circuit is now weighing the case after a panel heard arguments for it in March.
It’s part of a national legal push for trans rights to be considered under the Americans With Disabilities Act (ADA) and for trans women in prison to be housed with other women.
Amy Whelan, a senior staff attorney with the National Centre for Lesbian Rights, said genitalia still determines housing in most prisons despite federal regulations and research showing the high risk of sexual abuse trans women face in men’s prisons.
“Jails are still very behind in terms of understanding how important it is to move people, and understanding the medical issues involved,” she said. “It’s putting the safety and security of these institutions at risk.”
Lawsuits have led to changes in Washington DC and Massachusetts; some states have proactively mandated inmates be housed according to their gender identity. But there has also been pushback against those policies, including a lawsuit in California arguing that they violate cisgender women’s rights.
The US Court of Appeals for the ninth circuit has ruled that an Idaho prisoner was entitled to gender confirmation surgery under the constitution, but the fourth circuit is the first appellate panel to specifically consider the disability question.
When the ADA became law in 1990, “gender identity disorders not resulting from physical impairments” were explicitly excluded from protection from discrimination. Courts – including the first federal judge to review Williams’s case – have pointed to that language in dismissing cases alleging discrimination against trans people.
Through attorneys, Fairfax officials said the same. “To say that circumstances alleged by Ms Williams are far from ideal would minimise the struggles she and other trans people face,” they wrote, but “her allegations are insufficient to show that she is a qualified individual with a disability”.
A spokesman for the Fairfax sheriff’s office, which runs the jail, said it would be inappropriate to comment while the case is pending.
Williams and others argue the law’s authors misunderstood trans identity so thoroughly that the law’s exception does not describe it. Added at the urging of conservatives, the exclusions to the law also included paedophilia, voyeurism and exhibitionism under “sexual behaviour disorders”.
The desire to live as the opposite sex is no longer labelled by psychiatrists as a disorder to be treated; instead, the mental problem is the stress of being born in a body that does not align with one’s gender identity. “The disorder that my client now has did not exist, at least diagnostically” in 1990, her attorney Joshua Erlich said. “We must apply a modern understanding.”
Determined to file a lawsuit, Williams connected with Erlich before leaving Fairfax custody. She had done brief stints in jails before. But she had never had an experience as she did in Fairfax, which she said arose from agreeing to help a drug-dealing boyfriend who turned out to be working a sting operation.
“I did what I did, I’ll go to jail – but I’m being penalised for who I am, as well,” she said. “They need to change their system; they have to understand we’re in a different time.”
The Washington Post
