by Jayson Hawkins

As of June 29, 2021, the New Jersey Department of Corrections (DOC) has changed its policy of housing prisoners according to their gender assignment at birth, regardless of whether they are transgendered or of any non-binary sexual orientation. The policy change is part of an agreement settling a lawsuit brought in 2019 by a state prisoner, who will also receive $125,000 in damages plus $45,000 in attorney’s fees.

When Sonia Doe (not her real name) was sentenced in 2018, she was sent to a male prison, even though she had publicly lived as a woman since 2003. From March 2018 to August 2019, Doe was housed in four different men’s prisons, subjected to strip searches by male guards, living constantly under the threat of sexual assault by other prisoners and with repeated ridicule and harassment by correctional staff.

DOC had a policy for transgender and intersex prisoners based on the mandates of the federal Prison Rape Elimination Act (PREA) and state legislation to identify prisoners in these categories, assess their risk level, address them with proper pronouns, and house them in a manner consistent with their safety and the general security of the institution.

What Doe encountered when she was processed into DOC was not at all consistent with that policy. She was asked questions related to gender identity, but DOC still housed her with male prisoners. On multiple occasions she was harassed and ridiculed, forced to strip in front of male prisoners and threatened with sexual assault. Despite the department’s policy, Doe found that housing was based solely upon a prisoner’s genitalia. Hormone medications like those Doe had been taking since 2003 were routinely curtailed or denied.

After making a request for transfer to a women’s prison on April 30, 2019, she filed a grievance the following May 12, reporting she felt threatened in the housing unit she shared with men. On May 24, 2019, she was taken to an interview room by male guards who allegedly fondled her breasts during a pat-down. When she complained, they decided to show “him” how they treat complaints, allegedly beating her before charging her with assaulting them, leading to a disciplinary sentence of 271 days solitary confinement.

Doe filed suit in Superior Court of New Jersey, Appellate Division, on July 25, 2019, challenging that disciplinary decision and sentence. The following month, on August 18, 2019, she filed a civil suit in Superior Court of New Jersey, Law Division, seeking to enjoin DOC from discriminating against her on the basis of gender and asking for compensation and punitive damages for the more than seventeen months of “verbal and sexual harassment, physical assault, and continuous discrimination, including being housed in conditions of prolonged solitary confinement.”

On June 3, 2020, the Appellate Division issued its ruling on Doe’s disciplinary appeal. Citing Malacow v. N.J. Dep’t of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018), it said that “[o]ur review of final administrative agency decisions is limited” and affirmed the finding of guilt. But the sanctions were stayed for review after August 1, 2020, when a new law regarding the use of solitary confinement—N.J. Stat. § 30:4-82.10—was set to take effect. See: Doe v. N.J. Dep’t of Corr., 2020 N.J. Super. Unpub. LEXIS 1052 (Super. Ct. App. Div.).

The following year, the parties reached their settlement agreement in the civil suit, which includes a new DOC policy on transgender, intersex, and non-binary prisoners; monetary damages; and the restoration of lost commutation time that stemmed from the disciplinary case.

The changes significantly amend existing DOC procedures for transgender prisoners regarding housing, searches, medical care and personal respect. In housing, a multi-stage review will determine if a prisoner’s gender identity deviates from that assigned at birth, and if so, whether the deviation presents a health or safety risk were the prisoner assigned housing based on presumptive gender classification. If special considerations must be made, a PREA Accommodation Committee will:

• review the prisoner’s situation based on a dozen criteria;

• provide the transgender prisoner with a hearing to determine appropriate housing;

• allow the prisoner an opportunity to present the committee with additional information; and

• provide a written record of the subsequent decision and rationale.

If the prisoner does not agree with the decision, he or she may appeal to the commissioner.

Additional elements of the settlement include guarantees that gender non-conforming prisoners will not be compelled to shower with prisoners of a different sex, nor will they be strip-searched by guards of the opposite sex. Guards and other staff will also be required to use pronouns consistent with a prisoner’s gender identity.

The $170,000 total monetary award includes $45,000 for Doe’s attorneys, Jeanne LoCicero, Tess Borden and Alexander Shalom of the state chapter of the American Civil Liberties Union, along with Robyn B. Gigl of Gluck Walrath LLP in Trenton. See: Doe v. N.J. Dep’t of Corr., N.J. Super. Ct. Law Div. (Mercer Cty.), Case No. MER-L-001586-19.

Sonia Doe says she is still haunted by her time as a prisoner, but she said in a statement announcing the settlement, “It’s a relief to know that as a result of my experience the NJDOC has adopted a substantial policy change so no person should be subjected to the horrors I survived.”  

Additional sources: Insider NJ, NPR, DOC Internal Management Procedure

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