by Douglas Ankney

In consolidated cases, the Massachusetts Superior Court for Suffolk County ordered preliminary injunctive relief on December 30, 2022, for a pair of transgender women incarcerated at the state’s Souza Baranowski Correctional Center (SBCC).

Each woman filed a suit, which the Court consolidated. In the lead case, Jerome “Nina Harmony” Tibbs sued officials with the state Department of Correction (DOC), including SBCC guards Sgt. Richard Morales, Marley Dixon, Johnathan Toloczko, Jamie Brousseau, Steven Kenneway and Michael Wetherbee. In the consolidated case, Tibbs and Darius Gibson filed a verified complaint against DOC Commissioner Carol Mici, SBCC Grievance Coordinator Thomas Tocci and Superintendent Dean Gray.

According to the lead case, Tibbs was issued two disciplinary reports in March 2019, the first resulting from her refusal to submit to a strip search. She had been placed in restraints and escorted to a strip cell, where she was told to remove all of her clothes and submit to a strip search. Tibbs observed a video camera in the cell and refused to submit to the strip search, explaining to guards that she is a transgender woman and would not consent to a search in front of the camera. Two of the guards told Sgt. Morales that Tibbs refused to be searched. Morales ordered Tibbs to submit, and when she refused, Morales and another officer threatened to use physical force and a chemical agent.

Tibbs ultimately complied with the strip search and alleged that, after the search, Morales and two other officers called her homophobic and transphobic slurs. Tibbs also alleged that particular allegations made in connection with the disciplinary reports and disciplinary hearing were in furtherance of a conspiracy to violate her rights as a transgender woman.

In the consolidated case, Tibbs and Gibson alleged that “for one reason or another” they were “without diagnosis of gender dysphoria or any other physical or mental health gender identity diagnosis, but [they] identify as a gender that differs from the sex assigned at birth.” Tibbs declared in an affidavit that she had consistently informed DOC and SBCC personnel that she is transgender/gender nonconforming since 2016. Gibson swore in her affidavit that SBCC officials had “continuously refused to acknowledge me as being transgender, referring to me in male pronouns, they are refusing to permit me to purchase female hygiene/ health care/ hair products and [they] permit male prison guards to strip search me under threat of physical and chemical use of force.”

Both Tibbs and Gibson alleged that Defendants refused to change their identification cards to reflect their gender identity; refused to address them orally by their proper gender identity; refused them access to commissary items consistent with their gender identities; and routinely permitted male guards to strip search them. They moved for a preliminary injunction ordering DOC to treat them as transgender women pursuant to subsections (i), (ii), and (iii) of Mass. General Law ch.127, § 32A.

Defendants moved for dismissal, arguing that in compliance with policy 103 DOC 653 governing the Identification, Treatment, and Correctional Management of Gender Non-Conforming Inmates, Tibbs and Gibson underwent a clinical evaluation and were determined not to meet the criteria for diagnosis, presumably as transgender women.

The Court observed that the cited law provides that: “A prisoner of a correctional institution, jail or house of correction that has a gender identity … that differs from the prisoner’s sex assigned at birth, with or without a diagnosis of gender dysphoria or any other physical or mental health diagnosis, shall be: (i) addressed in a manner consistent with the prisoner’s gender identity; (ii) provided with access to commissary items, clothing, programming, educational materials and personal property that is consistent with the prisoner’s gender identity; (iii) searched by an officer of the same gender identity if the search requires an inmate to remove all clothing or includes a visual inspection of the anal cavity or genitals; provided, however, that the officer’s gender identity shall be consistent with the prisoner’s request; and provided further, that such search shall not be conducted for the sole purpose of determining genital status; and (iv) housed in a correctional facility with inmates with the same gender identity; provided further, that the placement shall be consistent with the prisoner’s request, unless the commissioner, the sheriff or a designee of the commissioner or sheriff certifies in writing that the particular placement would not ensure the prisoner’s health or safety or that the placement would present management or security problems.”

The Court concluded that DOC’s policy appeared to be in conflict with the statute because the statute clearly stated that no diagnosis of any sort was required for a prisoner to benefit from the provisions of the law. Moreover, Mass. General Law ch. 4, § 7 provided, in pertinent part, that “[g]ender identity may be shown by providing evidence [of] ... consistent and uniform assertion of the gender-related identity or any other evidence that the gender related identity is sincerely held as part of a person’s core identity ....”

Accordingly, the Court ordered DOC to treat Tibbs and Gibson as transgender women pursuant to the statute. However, regarding that statute, the Court observed that no injunction had been requested or was appropriate. A motion to dismiss by Defendants was also denied. See: Tibbs v. Morales, Mass. Super. (Suffolk Cty.), Case No. 1984CV01506 (2022); and Tibbs v. Mici, Mass. Super. (Suffolk Cty.), Case No. 2184CV00384 (2022).  

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