Applying Holt v. Hobbs To A Complex Case-- The Demands of a Transgender Native American Inmate

A fascinating decision handed down by an Idaho federal district court last week shows the complexity faced by prisons in attempting to applying the U.S. Supreme Court's January RLUIPA decision in Holt v. Hobbs.  In Stover v. Corrections Corporation of America, (D ID, Feb. 27, 2015), the court was faced with demands by a Native American male-to-female transgender prisoner for use of the prison's sweat lodge for religious purposes.  According to the court:

Although Plaintiff receives female hormone therapy and has developed feminine characteristics such as breasts, she is incarcerated in a men’s prison because she remains anatomically male—she has not had sex reassignment surgery.

Defendants conceded that under RLUIPA barring plaintiff from engaging in a sweating ceremony is a substantial burden on the exercise of her Native American religious beliefs. According to the court:

Defendants offer two explanations for their decision to prohibit Plaintiff from using the sweat lodge to practice her religion. First, they argue that prohibiting Plaintiff from using the lodge is necessary to ensure her safety. The Court does not doubt that prohibiting Plaintiff from using the sweat lodge in the company of male inmates is justified by the compelling governmental interest of keeping Plaintiff safe from physical or sexual assault..... [I]nmates are generally not fully clothed in the sweat lodge, and prison staff cannot observe the inside of the lodge. Plaintiff has already been a victim of several sexual assaults in prison. As a transgender prisoner with feminine characteristics such as breasts, Plaintiff would be in serious and immediate danger if she were to sweat with the male inmates in the sweat lodge at the men’s prison in which she is confined. Ensuring a vulnerable prisoner’s safety is obviously a compelling governmental interest.

However the court was not convinced that prison authorities had satisfied the least-restictive-alternative test as interpreted by the Supreme Court. A volunteer chaplain had apparently offered to escort Plaintiff to the sweat lodge when it was not in use by others so she could carry out the ritual.  While that may well seem to be the kind of less restrictive alternative that the Supreme Court required in Holt, here there was another complexity:

[Defendants] argue that the religious beliefs of the other inmates, who use the only sweat lodge... would be violated by allowing Plaintiff to enter the sweat lodge at any time, even by herself.... "[S]ome Native American tribes believe that allowing a two-spirited person (an individual suffering from gender identify disorder or gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would desecrate the religious sanctity of the lodge." ... 

After careful consideration, the Court concludes that Defendants have not establish[ed] that burdening one individual’s religious practice in an attempt to avoid burdening another’s religious practice is a compelling governmental interest under RLUIPA. .... The Court is persuaded that government officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious concerns, particularly where, as here, the asserted justification is based on mere speculation as to what some other inmates might find religiously objectionable. 

Israelis Bar Transgender Woman From Western Wall

YNet News  and Jerusalem Post  report that in Israel on Tuesday a transgender woman was turned away from the women's section of the Western Wall in Jerusalem. When Kay Long, who no longer identifies or dresses as a male, approached the women's section, she was turned away by an Orthodox Jewish woman patrolling the section who told her the section was for women only. When Long approached the men's section, Orthodox men yelled at her pointing her toward the women's section.

Religious Conservatives Oppose Proposal To Ban Transgender Discrimination

The Miami Herald reports that yesterday a Committee of the Miami Dade County (Florida) Commission by a vote of 3-1 approved a proposed Ordinance (full text) that would ban discrimination based on gender identity or gender expression in public accommodations, employment and housing. The Committee's 4-hour public hearing on the proposal was filled with testimony from religious conservatives opposing the proposal:

Raw emotion and invocations of biblical damnation over a proposed ban on discrimination against transgender people dominated Wednesday what was perhaps the fiercest debate Miami-Dade County Hall has seen this year.

Advocates of a more inclusive society, including transgender men and women who spoke of how difficult it can be to find public acceptance, were outnumbered by conservatives who, in a show of force, assailed the legislation as immoral and a threat to public safety. Two likened South Florida to Sodom and Gomorrah.

Malaysian Court Strikes Down Law Restricting Transgender Rights

BBC News reports today that a 3-judge appeals court panel in the Malaysian state of  Negeri Sembilan has struck down a state law barring Muslim men from wearing women's clothing. The appeal was brought by three transgender women who, a lower court had ruled, were required to wear men's clothing because they were born as males. In what is seen as a major victory for transgender rights, the court ruled that the law is "degrading, oppressive and inhumane."

Pastors Seek To Quash Subpoenas For Sermons, Communications On Houston's Equal Rights Ordinance

Opponents of Houston, Texas' Equal Rights Ordinance enacted in May have sued after the city ruled that they had insufficient signatures on their petitions to get a repeal referendum on the ballot. (See prior posting.) As part of discovery in the lawsuit in state court, the city issued broad subpoenas (full text) to a group of five pastors calling for them to produce, among other items:

All communications with members of your congregation regarding HERO [Houston Equal Rights Ordinance] or the Petition....

All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.

The pastors last week filed a motion to quash the subpoenas (full text) and a Memorandum in Support of the Motion (full text), arguing that the subpoenas are not "reasonably calculated to lead to the discovery of admissible, relevant evidence." In a Statement emphasizing opponents' objections to provisions in the Equal Rights Ordinance relating to transgender access to bathrooms, Alliance Defending Freedom said Monday that the subpoenas are designed to stifle social commentary.  Fox News yesterday reported on developments.

UPDATE: According to KTRH News:

City Attorney David Feldman argues the subpoenas are justified because the churches are where opponents of the ordinance met. "We're certainly entitled to enquire about the communications that took place in the churches regarding the ordinance and the petitions because that's where they chose to do it," Feldman tells KTRH News. "Its relevant to know what representations and instructions were given regarding these petitions," he says. [Thanks to Matthew Crawley for the lead.]

Appeals Court Approves Transgender Name Change Over Trial Judge's Religious Objections

In In the Matter of the Application of James Dean Ingram To Change His/Her Name, (OK App., March 21, 2014), the Oklahoma Court of Civil Appeals reversed a trial court judge's refusal to allow transgender petitioner, who was in the process of a sex transition from male to female, to change her name from from James Dean Ingram to Angela Renee Ingram.  The appeals court held that the trial judge abused his discretion when he concluded that the name change was sought for an illegal or fraudulent purpose.  According to AP, the trial court judge, Oklahoma County District Judge Bill Graves, citing Biblical passages, had said:   "[A] sex change cannot make a man a woman or a woman a man.... The DNA code shows God meant for them to stay male and female."  The Oklahoma ACLU issued a press release announcing the Court of Civil Appeals' decision. In 2012, the appeals court reversed a similar denial by the same judge. (See prior posting.)