When Sunday Hinton, a transgender woman, came into the custody of the D.C. Department of Corrections in late April 2021, DOC housed her in a men’s unit at the D.C. Jail, because DOC’s housing policy for transgender individuals contained a default presumption in favor of housing individuals based on their anatomy, rather than their gender identity. DOC’s Transgender Housing Committee can change transgender individuals’ housing assignments, but that committee has not met in over a year. And declarations from criminal defense attorneys report that the committee, even when operational, does not override the DOC default of housing transgender individuals based on anatomy.

When Ms. Hinton’s public defender asked for her to be moved to a women’s unit, DOC refused and said her only other “option” was protective custody—essentially, solitary confinement. In effect, DOC’s policy subjects Ms. Hinton and all transgender individuals in their custody to an impossible choice: be held in a unit inconsistent with their gender identity, or be held in solitary confinement.

DOC’s demeaning policy discriminates against transgender individuals and subjects them to a high risk of physical harm, violating Ms. Hinton’s constitutional rights to equal protection and due process, as well as her statutory rights under the D.C. Human Rights Act. DOC’s policy also conflicts with federal regulations under the Prison Rape Elimination Act.

On May 11, 2021, Ms. Hinton, represented by the ACLU-DC and the Public Defender Service for the District of Columbia, filed a class action lawsuit on behalf of current and future transgender individuals in DOC custody. Ms. Hinton sought emergency relief: her immediate transfer to a women’s unit and an injunction against the use of transgender individuals’ anatomy as the default or sole criterion in making their housing assignments.

The day after we filed our case, four DOC officials met with Ms. Hinton. She explained again, in detail, why she wanted to be housed in the women’s unit. DOC officials stated that they would not place her in the women’s unit. Ms. Hinton then asked to be housed with another trans woman in a men’s unit because it would be slightly better than her current situation. DOC agreed to do so if she agreed to sign a waiver stating she wanted to be in a men’s unit. When she asked to speak to her lawyers before signing anything, DOC refused. But she signed the waiver because, in her words, “[t]hey were essentially saying: you have to sign this to go be with your friend, but if you don’t, you have to stay here ... . So I signed the paper because I thought it would be a little safer to have another girl on the unit with me than to stay with all men at the Jail.” In court papers, DOC argued on the basis of the waiver that the request for emergency relief was moot. We responded that the court should disregard all of DOC’s assertions about Ms. Hinton’s wishes because they are tainted evidence procured unethically through a coercive meeting with a represented party to make an end run around her lawyers.

The court set a hearing for the morning of May 14. At 10 pm on May 13, we were informed by DOC’s lawyers that they would provide Ms. Hinton an internal hearing the next morning at 9:30 am, at which her lawyers could listen but not speak. At the hearing, Ms. Hinton strongly reiterated her desire to be transferred to the women’s unit. The jail officials reversed themselves and decided to recommend that Ms. Hinton be transferred to a women’s unit. Fifteen minutes before the hearing in federal court, DOC notified us that it would, in fact, grant the transfer. Ms. Hinton was moved to a women’s unit later that day.

On June 17, DOC adopted a revised policy that eliminated the “anatomy” presumption and purported to take account of individuals’ preferences through individualized hearings, but we learned that, as of mid-July, at least three transgender individuals in DOC custody received no hearings and were not reassigned housing even after the new policy was issued. Even worse, the new policy introduces a new discriminatory measure: placing all transgender individuals into “protective custody” – which our evidence reveals is essentially solitary confinement – for the duration of intake, which may last a week or more, simply because they are transgender. We continue to seek classwide relief against DOC’s discriminatory policies; DOC cannot comply with the Constitution by replacing one form of discrimination with another.

The court heard argument on the preliminary injunction and class certification motions in August, and denied them both in September. Because Ms. Hinton was no longer in custody at the time of the ruling and DOC had changed its original policy, the court could not be sure there were enough people in the proposed class to certify it as a class action, and Ms. Hinton no longer needed injunctive relief for herself. However, the court ruled that the challenge to the new protective-custody policy was still live, and the court indicated that if more trans residents are identified as the case proceeds, class certification could be appropriate.

Pro Bono Law Firm(s)

Public Defender Service for the District of Columbia

Date filed

May 11, 2021