On Tuesday, a federal judge heard oral arguments in a lawsuit brought by a transgender female inmate challenging the D.C. Department of Corrections’ policy for housing transgender inmates, saying that the policy is discriminatory and relies too heavily on a person’s anatomical makeup.

Judge John Bates, of the U.S. District Court for the District of Columbia, heard arguments in the lawsuit brought by Sunday Hinton, who was placed in a men’s unit in the D.C. Jail based on her genitalia, because she had not undergone gender confirmation surgery, despite having socially transitioned and being identified as female in Superior Court documents.

With the help of the American Civil Liberties Union of the District of Columbia, Hinton filed a class-action lawsuit to overturn the Department of Corrections’ policy, claiming it violated her Fifth Amendment rights, as well as prohibitions on discrimination based on a person’s gender identity contained in the DC Human Rights Act and the Prison Rape Elimination Act. She demanded that she be transferred to a women’s housing unit and that the department change its policy to better accommodate transgender individuals based on their gender identity.

Under the department’s previous housing policy, inmates were placed based on their anatomy, unless they were able to obtain a recommendation for alternative housing from DOC’s Transgender Housing Committee, comprised of corrections staffers, a doctor, a social worker, a mental health clinician, and members of the local transgender community.

Without the recommendation — and even sometimes with one, if the warden objected to it — prisoners were either forced to be housed based on their genitalia or their assigned sex at birth, or placed in “protective custody,” also known as solitary confinement.

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Although Hinton has since been moved to a women’s unit, she and her lawyers have maintained that housing transgender women in men’s units puts them at higher risk of sexual assault, rape, and abuse. It also has argued in legal briefs that forcing trans prisoners into solitary confinement puts them at greater risk of mental health problems if they are kept isolated for an extended period of time.

In June, DOC issued a new policy requiring all transgender prisoners to be held in protective custody upon intake until they receive their regular housing assignment, which ostensibly will take into account an inmate’s gender identity. But opponents of the new policy change say it still does not eliminate the problems raised in Hinton’s initial lawsuit.

The ACLU of DC and the Public Defender Service have since identified three additional transgender prisoners who never received hearings before the Transgender Housing Committee and were never reassigned to gender-affirming housing, even after the new policy was instituted.

In addition, prior to her transfer, Hinton’s lawyers previously alleged that DOC officials held a meeting with Hinton, without her attorney present, to discuss her desire to be housed in a women’s unit. DOC officials refused her request, at which point Hinton requested to be placed with another trans woman if she was to remain in the men’s unit, based on her belief that it would be safer than being housed with a cisgender male cellmate.

DOC officials then forced Hinton to sign a waiver stating that it was her preference to be housed in a men’s unit, and allegedly tried to use that waiver to justify their decision to keep her in a men’s unit. Hinton’s lawyers later filed a motion with the court explaining how DOC officials had pressured Hinton into signing the form, arguing that the court should disregard DOC’s claims about her housing preference because they were “tainted evidence procured unethically through a coercive meeting with a represented party to make an end run around her lawyers.”

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On Tuesday, the Scott Michelman, the legal director of the ACLU of the District of Columbia, argued on behalf of Hinton and other trans individuals negatively impacted by DOC’s housing policy.

“I tried to express to the court that the DOC has engaged in a series of policies that show a real disregard for the rights and identities of trans people and a determination not to treat them as they would cisgender inmates. They are just either placing them in protective custody based on their status or not assigning them to housing in accord with their gender identity,” Michelman told Metro Weekly in an interview.

“None of that would happen to Miss Hinton or the class members if they were cisgender. And so I think there’s a real hostility to trans people on the part of DOC, which can also be seen through their efforts to coerce trans individuals into waiving their rights,” he added, referring to DOC’s previous efforts to compel Hinton to say she preferred being housed in a men’s unit.

Regarding the new policy, Michelman said that placing transgender individuals in solitary confinement upon intake were “of a piece with its general hostility toward the rights of trans inmates and toward treating them as they would similarly-situated cisgender inmates.”

He declined to speculate on the motives behind DOC’s previous insistence on housing trans inmates based primarily on their genitalia.

“What I can say is that the policies speak for themselves and the the hostility, wherever it comes from, is manifest in the treatment of transgender inmates, as we’ve extensively documented in our evidence and court declarations from from several transgender individuals who have been in DOC custody this spring or summer or in the past year and who report a complete unwillingness, on the part of the DOC, to consider assigning them [to housing] in accordance with their gender identity,” Michelman said.

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A spokeswoman for the D.C. Department of Corrections did not respond to a request seeking comment as of press time.

In addition to leadership at the DOC, Michelman also cast D.C. Mayor Muriel Bowser as culpable in allowing the policy to continue.

“I think the Bowser administration has exhibited a profound disregard for constitutional rights in the criminal justice sphere, from the police to the Department of Corrections,” he said. “And we have sued the mayor repeatedly for her agency’s refusal to take seriously the rights of individuals in the criminal justice system, from trans individuals in custody to people detained in a variety of settings facing COVID to community members who are stopped and frisked without cause on the street.

“And that is one of the most troubling failings of the Bowser administration. It’s astonishing, in a city that professes to have such progressive values, that we seem to have a chief executive who does not share those values and will not implement them.”

A spokeswoman for the mayor’s office declined comment, saying the office has a policy of not commenting on pending litigation.

Michelman said he was particularly impressed with how Judge Bates handled the case, and is eagerly awaiting his ruling.

“Judge Bates held a thorough hearing and obviously had clearly read and digested all of the factual material in the record. And obviously, it’s a pleasure as an advocate when a judge engages seriously with your case, as befits the seriousness of the problem that we’re confronting here,” he said. “Judge Bates expressed a desire to get a decision out quickly, and we hope he’ll do that.”

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