Doe v. Massachusetts Department of Correction

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-12255-RGS

JANE DOE

v.

MASSACHUSETTS DEPARTMENT OF CORRECTION, et al.

MEMORANDUM AND ORDER

ON DEFENDANTS’ MOTION TO DISMISS

June 14, 2018

STEARNS, D.J.

Plaintiff Jane Doe is a transgender woman, currently housed at MCI-

Norfolk, a men’s prison overseen by the Massachusetts Department of

Correction (DOC). Doe brought this Complaint against the DOC and several

of its officials1, alleging that she has been discriminated against in violation

of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.

(ADA), and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. The

Complaint alleges that defendants have failed to make reasonable

1 The individual defendants, who are sued in their official capacities,

are: Thomas A. Turco III, DOC Commissioner; Sean Medeiros,

Superintendent of MCI-Norfolk; Stephanie Collins, DOC Assistant Deputy

Commissioner of Clinical Services; and James M. O’Gara Jr., DOC ADA

Coordinator.

accommodations of her Gender Dysphoria (GD) disability. It also alleges

violations of the Equal Protection and Due Process Clauses of the Fourteenth

Amendment, and violations of the Federal Civil Rights Act, 42 U.S.C. § 1983.

The defendants moved to dismiss the Complaint pursuant to Fed. R.

Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

Doe countered with a Motion for a Preliminary Injunction, seeking among

other forms of relief a transfer to MCI-Framingham, a Massachusetts

women’s prison. The court heard oral argument on both motions on

February 28, 2018. At that hearing, a principal issue was whether Doe’s GD

fits within the ADA’s exclusion of “transvestism, transsexualism, pedophilia,

gender identity disorders not resulting from physical impairments, or other

sexual behavioral disorders” from the definition of “disability,” 42 U.S.C. §

12211(b)(1), and if so, whether the exclusion is constitutional as applied to

Doe.

The court, deeming the constitutional question to be substantial,

certified a question to the U.S. Attorney General pursuant to Fed. R. Civ. P.

5.1(b), and 28 U.S.C. § 2403, see Dkt #57, and reserved ruling on the

defendants’ Motion to Dismiss. However, recognizing the exigencies

underlying Doe’s claim, the court granted her Motion for a Preliminary

Injunction in part, ordering the defendants – whenever feasible and

consistent with the DOC’s applicable collective bargaining agreements and

staffing availability – to: (1) utilize female corrections officers when

conducting strip searches of Doe; (2) to make permanent the arrangement

permitting Doe to shower at different times than male inmates; and (3) to

station a corrections officer as a privacy guard while Doe showered. See Dkt

#59.

On the DOC’s Motion for Clarification, the court agreed to two minor

adjustments of its order: first, that Doe be allowed shower time during prison

lockdowns; and second, that in those instances where two female guards

were not available to strip search Doe, that a male guard be permitted to

search Doe’s lower body, while a female guard searched her torso. See Dkt

#s 63 & 64. The court recognized Doe’s contention that the bifurcated strip

search risked exacerbating her GD, see Dkt #66, but explained that its

purpose was to provide Doe with the broadest relief possible while

maintaining the status quo ante to the extent possible while awaiting a full

resolution of the DOC’s Motion to Dismiss and the consideration of any

intervention by the Department of Justice (DOJ).

On May 30, 2018, the DOJ, after requesting and receiving an extension

of time to respond, see Dkt #71, informed the court that it would not

intervene in Doe’s case, see Dkt #77. The court therefore considers the DOC’s

Motion to Dismiss to be ripe and will proceed on the merits.2 For the reasons

to be explained, the Motion to Dismiss will be denied.

2 The court takes judicial notice that the Criminal Justice Reform Act,

signed into law by Governor Baker on April 13, 2018, provides as follows.

A prisoner of a correctional institution, jail or house of correction

that has a gender identity, as defined in section 7 of chapter 4,

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, 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.

Mass. Acts of 2018, c. 69, § 91 (amending Chapter 127 of Mass. Gen. Laws by

inserting a new Section 32A) (emphasis supplied). This provision of the Act

does not take effect until December 31, 2018, and is subject to possible

revision in the interim. While Section 32A will likely provide relief to

inmates in the future who are similarly situated to Doe, absent voluntary

compliance now by the DOC it will not provide full relief to Doe, who is

scheduled for parole in September of 2018.

FACTUAL BACKGROUND

The following facts are taken from the Doe’s well-pleaded Complaint.3

Jane Doe4 is a 53-year old transgender woman serving a three- to four-year

sentence at MCI-Norfolk for a nonviolent drug offense. Compl. ¶¶ 24, 30.

Although anatomically born a male – and assigned that gender at birth – Doe

experienced serious emotional and mental health issues as a child caused by

tension between her assigned gender and her gender identity. Id. ¶ 25.

As a teenager, Doe was diagnosed as suffering from Gender Identity

Disorder (GID). Id. ¶ 26. At her doctor’s recommendation, she began gender

transition therapy, id. ¶ 27, including a course of hormone treatment, which

she has continued to this day. Id. ¶¶ 27, 46. Prior to her incarceration, Doe

lived her life as a female, with her friends and family referring to her by her

preferred female name. Id. ¶¶ 24, 28. Doe’s Massachusetts Identity Card lists

her as a woman, and she is in the process of obtaining a court order legalizing

a change of her birth name to her chosen female name. Id. ¶ 29. The DOC

in its pleadings does not dispute the sincerity of Doe’s belief that she is, in

fact, a woman.

3 These facts are deemed true for purposes of evaluating the Motion to

Dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

4 On November 15, 2017, the court approved plaintiff’s Motion to

Proceed Under Pseudonym and for a Protective Order. See Dkt #s 13, 16.

A growing consensus in the medical and psychiatric community now

regards Doe’s condition, although diagnosed in her teenage years as GID, as

more accurately classified as GD, a rare but serious medical condition. Id.

¶ 2. GD supplanted GID in the American Psychiatric Association’s (APA)

Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders

(DSM-V).5 GD is defined in DSM-V as follows:

A. A marked incongruence between one’s experienced /

expressed gender and assigned gender, of at least six months’

duration, as manifested by at least two of the following:

1. A marked incongruence between one’s experienced /

expressed gender and primary and/or secondary sex

characteristics (or in young adolescents, the

anticipated secondary sex characteristics).

2. A strong desire to be rid of one’s primary and / or

secondary sex characteristics because of a marked

incongruence with one’s experienced / expressed

gender (or in young adolescents, a desire to prevent the

development of the anticipated sex characteristics).

3. A strong desire for the primary and / or secondary sex

characteristics of the other gender.

4. A strong desire to be of the other gender (or some

alternative gender different from one’s assigned

gender).

5. A strong desire to be treated as the other gender (or

some alternative gender different from one’s assigned

gender).

5 Both parties treat the DSM-V as authoritative. For example, in its

Opposition to Doe’s Motion for a Preliminary Injunction, the DOC attached

the Department’s Policy on the Identification, Treatment and Correctional

Management of Inmates Diagnosed with Gender Dysphoria (GD Policy),

which cites the DSM-V definition verbatim. See Dkt #45-2.

6. A strong conviction that one has the typical feelings and

reactions of the other gender (or some alternative

gender different from one’s assigned gender).

B. The condition is associated with clinically significant distress or

impairment in social, occupational or other important areas of

functioning.

Persons diagnosed with GD often experience bouts of negative self-

esteem, which manifests itself in anxiety, depression, and suicidality. Compl.

¶¶ 2o, 21. They also face an increased risk of other mental disorders, as well

as a sense of stigmatization and victimization. Id. The APA treatment

protocol for GD recommends “counseling, cross-sex hormones, gender

reassignment surgery, and social and legal transition” from a patient’s sex as

assigned at birth to the sex associated with his or her gender identification.

Compl. ¶ 23. As part of her treatment regime, Doe began wearing girls’

clothing as a youngster in school, used her chosen female name, and started

a life-long course of hormonal treatment. Id. ¶ 47. As a result of the hormone

injections, Doe exhibits clear signs of female breast development, which

according to the Complaint, invites unwanted attention from male inmates.

Although Doe’s GD diagnosis is not disputed, the DOC has housed Doe

at MCI-Norfolk, a men’s prison, since October 31, 2016. Compl. ¶ 10. The

Complaint relates a litany of humiliations and trauma caused by this

placement. Doe alleges that, at least prior to this court’s injunctive order,

strip searches, which took place with some regularity, were conducted by

male guards, who frequently groped her breasts. Compl. ¶ 33. She also

alleges that during a facility-wide lockdown in June of 2017, she was forced

to strip naked in the presence of male DOC staff and in plain view of other

prisoners, many of whom made audible sexually suggestive comments about

her body. Id. ¶ 34.

Doe further alleges that she was forced to shower, on several occasions,

in the presence of, or in a place where she could be seen by male inmates. Id.

¶ 35. She claims that these experiences have instilled in her a fear of falling

victim to sexual violence, and that she began experiencing difficulty sleeping

after “men gawked at her from the [prison] tier above her as she showered.”

Id. ¶ 36; see also id. ¶ 44 (alleging that “prisoners often harass her sexually

in the bathrooms, with the knowledge and tacit approval of DOC staff”). She

complains that while the DOC often provides separate shower facilities or

shower times to transgender inmates – an accommodation she enjoyed when

placed for a time in a housing area with access to a transgender-specific

shower facility – “[o]n more than one occasion . . . Defendants have denied

Jane Doe the right to use this shower and forced her to shower along with

male prisoners while these prisoners snickered and made demeaning,

hurtful, and denigrating comments about her.” Id. ¶ 39. While the DOC

makes available to transgender prisoners a shower curtain with an opaque

middle section designed to obscure an inmate’s torso, the Complaint alleges

that the opaque section “does not line up with Jane Doe’s body, so male

prisoners can see most of her naked body, including her breasts.” Id. ¶ 40.

Other factual allegations in the Complaint fault various corrections

officers for refusing to call Doe by her chosen female name or to otherwise

treat her as a woman. The Complaint asserts that “certain DOC correctional

officers make a point of asserting that Jane Doe’s anatomy is different than

any other woman and repeatedly state that she is still a man,” while others

deride Doe and other transgender prisoners as “chicks with dicks” and

“wannabe women.” Id. ¶ 42. Doe complains that she is subjected to similar

taunts and harassment from other inmates, leading her to frequently skip

meals in the prison mess hall and to avoid group activities made available to

other prisoners. Id. ¶ 44. She also alleges that prisoners have on occasion

entered her cell and attempted to physically force themselves on her. Id.

Doe’s lawsuit was filed on November 15, 2017.6 In response to the

DOC’s 12(b)(6) Motion to Dismiss, as previously noted, Doe filed a Motion

6 In addition to the ADA, Rehabilitation Act, Fourteenth Amendment

and § 1983 claims, Doe’s original Complaint contained various state

constitutional claims. However, Doe agreed in her Opposition to the Motion

to Dismiss to the dismissal, without prejudice, of the state-law claims. See

Doe Opp’n, Dkt #33, at 1 n.1. In any event, the Eleventh Amendment’s grant

for a Preliminary Injunction, see Dkt #34, praying that the court order the

DOC to:

(1) transfer Doe to MCI-Framingham [a DOC facility for women];

(2) enjoin Defendants from using male correctional officers to

conduct strip searches of Jane Doe, except in exigent

circumstances; (3) enjoin Defendants from forcing Jane Doe to

shower in the presence of men and with a shower curtain that

does not adequately cover her; (4) enjoin Defendants from

treating Jane Doe differently than other women held by the DOC;

(5) train all staff on how to appropriately accommodate, treat and

communicate with individuals with Gender Dysphoria within 60

days of this order; (6) enjoin Defendants from using male

pronouns when speaking to or about Jane Does; (7) enjoin

Defendants from referring to Jane Doe by her former male name

(or any abbreviated version thereof); (8) refer to Jane Doe by her

chosen female name; and (9) award such other relief as is just

and proper.

Dkt #35 at 3.7

DISCUSSION

A. LEGAL STANDARD

To survive a motion to dismiss, a plaintiff must state a claim to relief

“that is plausible on its face.” Twombly, 550 U.S. at 570. This burden

“requires more than labels and conclusions, and a formulaic recitation of the

of sovereign immunity would have likely barred her state-law claims for

injunctive relief in a federal court. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 106 (1984).

7 The DOC filed an opposition to Doe’s Motion for a Preliminary

Injunction on February 21, 2018, see Dkt #45, to which it attached the

aforementioned copy of the DOC’s GD Policy.

elements of a cause of action will not do.” Id. at 555. However, in evaluating

a motion to dismiss, the court takes the “factual allegations in the complaint

as true and make[s] all reasonable inferences” in favor of the non-moving

party. See Mississippi Pub. Employees’ Ret. Sys. v. Boston Sci. Corp., 523

F.3d 75, 85 (1st Cir. 2008).

B. THE ADA AND REHABILITATION ACT CLAIMS

1. Statutory Framework

The ADA was crafted to “provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1). To state a claim under the ADA, a

plaintiff must show “(1) that he is a qualified individual with a disability; (2)

that he was either excluded from participation in or denied the benefits of

some public entity’s services, programs, or activities, or was otherwise

discriminated against; and (3) that such an exclusion, denial of benefits, or

discrimination was by reason of his disability.” Parker v. Universidad de

Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000). The Rehabilitation Act provides

that “[n]o otherwise qualified individual with a disability . . . shall, solely by

reason of his or her disability, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).

The definition of “disability” in both statutes is virtually identical. See

42 U.S.C. § 12101(1) (ADA) (defining disability as “a physical or mental

impairment that substantially limits one or more major life activities.”);

29 U.S.C. § 705(9) (Rehabilitation Act) (defining a disability as “a physical or

mental impairment that constitutes or results in a substantial impediment to

employment”). In light of the twinned definitions, courts routinely apply the

same legal analysis in interpreting claims under both statutes. See Nunes v.

Massachusetts Dep’t of Corr., 766 F.3d 136, 144 (1st Cir. 2014) (noting that

the court “need make no distinction between the two statutes for purposes of

our analysis”).

In addition to demonstrating that she has “a physical or mental

impairment that substantially limits one or more major life activities,” Doe

must also establish “a record of such an impairment,”8 or “being regarded as

having such an impairment” by representatives of the public entity in

question, generally in the form of an adverse action or actions. See 42 U.S.C.

12102(3)(A) (“An individual meets the requirement of ‘being regarded as

8 It is beyond peradventure that if Doe is able to successfully

demonstrate that she meets the statutory definition of “disability” under the

ADA, she has an adequate “record” of her diagnosis, which dates over four

decades. She has been continually treated for GD by the DOC’s health care

providers and contractors during her period of incarceration. See Compl.

¶¶ 45-53.

having such an impairment’ if the individual establishes that he or she has

been subjected to an action prohibited under this chapter because of an

actual or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.”).

Both of the statutory claims advanced by Doe rest on the premise that

her GD qualifies as a disability, in turn imposing an obligation on the DOC

to afford her reasonable accommodations. Doe maintains that the “major

life activity” impaired by GD is her ability to reproduce, and that GD meets

the regulatory definition of disability because it is a “physiological disorder

or condition . . . affecting . . . [the] endocrine” system. 28 C.F.R. §

35.108(b)(1)(i). Because “a person born with Gender Dysphoria is born with

circulating hormones inconsistent with their gender identity,” Doe Opp’n at

6, and “because [she] requires lifelong treatment for Gender Dysphoria,

including the administration of female hormones, which leaves her incapable

of reproduction,” id. at 6-7, Doe contends that GD meets the ADA’s definition

of a disability. See 42 U.S.C. § 12102(2)(B) (providing that a disability is a

physical or mental impairment that substantially limits a major life activity,

notably “the operation of a major bodily function, including . . . endocrine,

and reproductive functions”); see also Bragdon v. Abbott, 524 U.S. 624, 639

(1998) (“[W]e agree . . . that reproduction is a major life activity for the

purposes of the ADA.”).

2. The ADA’s Exclusion for Gender Identity Disorders

The court does not understand the DOC to contest that reproduction

qualifies as a major life activity, nor do I read the DOC as disputing that Doe’s

GD diagnosis meets the ADA’s statutory definition of a disability. However,

the DOC identifies an exclusionary provision of the statute, 42 U.S.C.

§ 12211(b)(1). The exclusion lists “(1) transvestism, transsexualism,

pedophilia, gender identity disorders not resulting from physical

impairments, or other sexual behavioral disorders” as conditions which are

outside the scope of the statute’s definition of “disability.”9 The DOC

contends that because GD for all practical purposes is equivalent to “gender

identity disorder,” it is categorically outside the ADA’s protections.10

Doe counters with three arguments. First, she argues that the decision

to treat “Gender Dysphoria” in DSM-V as a freestanding diagnosis is more

9 The other exclusions in Section 12111 are “(2) compulsive gambling,

kleptomania, or pyromania; or (3) psychoactive substance use disorders

resulting from current illegal use of drugs.”

10 In an aside, the DOC notes that Doe is in fact a biological parent,

having fathered a child prior to beginning her hormone treatment. See

Peterson Aff., Dkt #45-3 at ¶ 17.

than a semantic refinement. Rather, it reflects an evolving re-evaluation by

the medical community of transgender issues and the recognition that GD

involves far more than a person’s gender identification. She argues that GD

is now understood to reflect the clinically significant distress that an affected

person experiences as a result of the “marked incongruence” between an

experienced/expressed sex and a person’s birth sex. Because it has

independent clinical significance, Doe contends that GD is not a “gender

identity disorder” as that term was meant in crafting the ADA exclusions.

Second, she maintains that even if the statutory exclusion encompasses GD,

it is limited to “gender identity disorders not resulting from physical

impairments,” and because Doe’s GD does result from physical impairments,

the statutory exclusion as applied to her does not preclude her claim. Third,

she argues that if the exclusion applies categorically to all diagnoses of GD,

it violates the Fourteenth Amendment because the legislative history of the

exclusion demonstrates that it was driven by animus towards transgender

persons. If either or both of the first two arguments is correct, Doe notes that

the court need not reach the constitutional question at all.

While reasonable minds might differ, the court is of the view that Doe

has the better of the arguments. The ADA’s exclusion applies only to “gender

identity disorders not resulting from physical impairments,” 42 U.S.C.

§ 12211(b)(1) (emphasis supplied), and Doe has raised a dispute of fact that

her GD may result from physical causes. While medical research in this area

remains in its initial phases, Doe points to recent studies demonstrating that

GD diagnoses have a physical etiology, namely hormonal and genetic drivers

contributing to the in utero development of dysphoria. See Doe Opp’n, Dkt

#33 at 15 (citing Christine Michelle Duffy, The Americans With Disabilities

Act of 1990 and the Rehabilitation Act of 1973, in GENDER IDENTITY AND

SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE

(Christine Michelle Duffy ed., Bloomberg BNA 2014)).11 A further distinction

can be made between the definition given in DSM-IV of “gender identity

11 One final point with respect to the distinction between GID and GD

is the treatment of this issue by other courts. The one case cited by the

defendants in which a court found that GD and GID were simply different

labels for an identical diagnosis predated the publication of DSM-V. See

Michaels v. Akal Security, Inc., 2010 WL 2573988 at *6 (D. Colo. June 24,

2010) (“Gender dysphoria, as a gender identity disorder, is specifically

exempted as a disability by the Rehabilitation Act.”). By contrast, a more

recent case has recognized that the distinction between GID and GD is a

meaningful one for purposes of a prima facie ADA claim. See Blatt v.

Cabela’s Retail, Inc., 2017 WL 2178123, at *4 (E.D. Pa. May 18, 2017)

(concluding that “it is fairly possible to interpret the term gender identity

disorders narrowly to refer to simply the condition of identifying with a

different gender, not to exclude from ADA coverage disabling conditions that

persons who identify with a different gender may have — such as [plaintiff’s]

gender dysphoria, which substantially limits her major life activities of

interacting with others, reproducing, and social and occupational

functioning.”).

disorders,” and that now given in DSM-V of “gender dysphoria.” In contrast

to DSM-IV, which had defined “gender identity disorder” as characterized by

a “strong and persistent cross gender-identification” and a “persistent

discomfort” with one’s sex or “sense of inappropriateness” in a given gender

role, the diagnosis of GD in DSM-V requires attendant disabling physical

symptoms, in addition to manifestations of clinically significant emotional

distress.

While the court need not take a position on whether GD may

definitively be found to have a physical etiology – nor would it be confident

doing so without the aid of expert testimony – the continuing re-evaluation

of GD underway in the relevant sectors of the medical community is

sufficient, for present purposes, to raise a dispute of fact as to whether Doe’s

GD falls outside the ADA’s exclusion of gender identity-based disorders as

they were understood by Congress twenty-eight years ago.

3. Constitutional Avoidance

A second reason to deny the Motion to Dismiss lies in the prudential

doctrine of constitutional avoidance. Under this doctrine, a court has a duty

where “a serious doubt of constitutionality is raised” with respect to a

statutory provision to “first ascertain whether a construction of the statute is

fairly possible by which [a constitutional] question may be avoided.”

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J.,

concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).

As the Supreme Court has cautioned, the doctrine should not be read

as permission for a court to “adopt[] implausible constructions” of a statute

or to otherwise “rewrite it.” Jennings v. Rodriguez, 138 S. Ct. 830, 836

(2018). Here, however, in light of the court’s finding that Doe has made a

plausible case that GD arises from physical impairments and is not merely

another term for “gender identity disorder,” the constitutional avoidance

canon “permits a court to ‘choos[e] between competing plausible

interpretations of a statutory text.’” Id. at 843 (quoting Clark v. Martinez,

543 U.S. 371, 381 (2005)). See also United States v. Dwinells, 508 F.3d 63,

70 (1st Cir. 2007) (“Congress is presumed to legislate in accordance with the

Constitution and . . . therefore, as between two plausible constructions of a

statute, an inquiring court should avoid a constitutionally suspect one in

favor of a constitutionally uncontroversial alternative.”).

The source of constitutional concern over a reading of the ADA’s

exclusionary provision that would bar Doe’s claim is located in the Equal

Protection Clause of the Fourteenth Amendment. It has long been

recognized that where the government draws a distinction “against

a historically disadvantaged group and [where that distinction] has no other

basis, Supreme Court precedent marks this as a reason undermining rather

than bolstering the distinction.” Massachusetts v. U.S. Dep’t of Health &

Human Servs., 682 F.3d 1, 14 (1st Cir. 2012) (citing Plyler v. Doe, 457 U.S.

202, 227 (1982), and Romer v. Evans, 517 U.S. 620, 635 (1996)). The reason

for heightened judicial sensitivity in this context lies in the painful lessons

taught by our history, that “discrete and insular minorities” have often been

unable to rely upon the political process to provide them with protection, see

United States v. Carolene Prods Co., 304 U.S. 144, 152 n.4 (1938); see

generally John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL

REVIEW (1980).

Consider the company that “gender identity disorders not resulting

from physical impairments” keeps within the same subsection of the statute:

pedophilia, exhibitionism, and voyeurism. The pairing of gender identity

disorders with conduct that is criminal or viewed by society as immoral or

lewd raises a serious question as to the light in which the drafters of this

exclusion viewed transgender persons. Also excluded are “(2) compulsive

gambling, kleptomania, or pyromania” and “(3) psychoactive substance use

disorders resulting from current illegal use of drugs.” Here, again, the statute

excludes from a possible ADA claim activities that are illegal, dangerous to

society, or the result of harmful vices.

It is virtually impossible to square the exclusion of otherwise bona fide

disabilities with the remedial purpose of the ADA, which is to redress

discrimination against individuals with disabilities based on antiquated or

prejudicial conceptions of how they came to their station in life. See

Tennessee v. Lane, 541 U.S. 509, 536 (2004) (Ginsburg, J., concurring) (“The

ADA ‘guarantee[s] a baseline of equal citizenship by protecting against

stigma and systematic exclusion from public and private opportunities . . .’”.)

(citation omitted). The court is of the view that, to the extent that the statute

may be read as excluding an entire category of people from its protections

because of their gender status, such a reading is best avoided. See Plessy v.

Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (arguing that the

Constitution, properly interpreted, “neither knows nor tolerates classes

among citizens”).

4. Remaining Elements of Doe’s ADA and Rehabilitation Act Claims

Finding for present purposes that Doe has established a prima facie

claim to being a qualified individual with a disability under the ADA, the

court is also of the view that the remaining two requirements for a viable

ADA claim – that Doe has been denied some benefit or excluded from some

public program or otherwise discriminated against by a public entity, and

that the exclusion, denial, or discrimination has a causal connection to her

GD – are satisfied by the factual allegations of the Complaint. The DOC’s

argument that Doe’s “ADA claim cannot stand because she is not

complaining of her exclusion or denial from services, programming, or

activities available at MCI-Norfolk,” see Dkt #28 at 14, suffers from a

categorization error: Doe’s Complaint is not about being denied services at

MCI-Norfolk, but about being housed there in the first place. Compl. ¶ 6.

Moreover, as Doe correctly points out, although the language of the

statute speaks of “services, programs, or activities” denied to an individual

with disabilities, in reality this provision “has been interpreted to be a catch-

all phrase that prohibits all discrimination by a public entity.” Noel v. N.Y.C.

Taxi & Limousine Comm’n, 687 F.3d 63, 68 (2d Cir. 2012) (internal

quotation marks and citation omitted); see also Hason v. Med. Bd. of

California, 279 F.3d 1167, 1172-1173 (9th Cir. 2002) (“[T]he ADA’s broad

language brings within its scope anything a public entity does.”). Here, Doe’s

Complaint adequately states that, unlike other female inmates, she was

assigned to a men’s prison by virtue of her gender assignment at birth and

denied access to facilities and programs that would correspond with her

gender identification.

Doe also has made out a claim that the DOC’s biological sex-based

assignment policy has a disparate impact on inmates with GD because it

injects them into a prison environment that is contrary to a critical aspect of

their prescribed treatment (that they be allowed to live as, in Doe’s case, a

woman). See Wisconsin Cmty. Services v. City of Milwaukee, 465 F.3d 737,

753 (7th Cir. 2006) (en banc) (noting that an ADA claim can be sustained

where a “defendant’s rule disproportionately impacts disabled people.”).

Both of these theories are sufficiently viable at this stage to defeat the Motion

to Dismiss.

Finally, while the ADA does not require that accommodations to a

disability be “optimal” or “finely tuned to [the inmate’s] preferences,” Nunes,

766 F.3d at 146, Doe has adequately pled that she has been denied the

reasonable accommodation of a transfer to a woman’s prison12, as well as

that she be addressed by prison personnel in a manner consistent with her

gender identity. Because Doe has adequately stated a claim under the ADA,

it follows that her Rehabilitation Act claim is equally viable.

12 At least one Circuit Court has held that “a prisoner’s transfer from or

to a particular prison may become relevant when prison officials attempt to

determine what constitutes a ‘reasonable accommodation’” to a disability,

and “whether the prison’s interests outweigh the Plaintiff’s” interest in a

transfer “is not appropriate for resolution on the pleadings.” Lonergan v.

Fla. Dep’t of Corr., 623 F. App’x 990, 993-994 (11th Cir. 2015) (finding a

viable ADA claim where, despite a dermatologist’s order that an inmate with

a serious skin condition be provided a hat and kept out of the sun, prison

officials denied plaintiff’s request to be transferred to a prison where no

activities were conducted outdoors).

C. CONSTITUTIONAL CLAIMS

While Doe raises equal protection arguments with respect to any

reading of the ADA’s exclusionary clause that would bar individuals with GD

from seeking ADA protection, she also raises constitutional challenges under

the Fourteenth Amendment and § 1983 to the DOC’s inmate housing

assignment policy, which she alleges is based solely on birth sex. The

Fourteenth Amendment provides that: “No State shall . . . deprive any person

of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV. The Federal Civil Rights Act, 42 U.S.C. § 1983, authorizes a

cause of action against state officers, acting under color of state law, who are

alleged to have deprived a plaintiff of rights secured by the U.S.

Constitution.13

In framing the Equal Protection claim, Count Three of Doe’s Complaint

alleges that the defendants “have violated Jane Doe’s rights by . . .

impermissibly discriminating against Jane Doe on the basis of her sex,

gender identity, transgender status, and disability.” Compl. ¶ 81. The court

13 A § 1983 suit, however, may be brought only against a state official

in his personal capacity. A suit against a state government official in his or

her official capacity is the same as a suit against the entity [the state] of which

the officer is an agent and is therefore barred by the Eleventh Amendment.

See Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).

agrees to this extent: where a State creates a classification based on

transgender status, the classification is tantamount to discrimination based

on sex and is therefore subject to heightened judicial scrutiny above the

normal “rational basis” test that courts apply when reviewing a governmental

policy that “does not employ suspect classifications or impinge on

fundamental rights.” Hodel v. Indiana, 452 U.S. 314, 331 (1981).

The trend in recent cases is to apply heightened scrutiny to

classifications based on transgender status. See, e.g., Equal Emp’t

Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL

1177669, at *5 (6th Cir. Mar. 7, 2018) (“[D]iscrimination on the basis of

transgender . . . status is necessarily discrimination on the basis of sex.”);

Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017) (holding that distinctions

drawn on the basis of transgender status warrant heighted review); cf.

Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa.

2017) (holding that “gender identity is entirely akin to ‘sex’ as that term has

been customarily used in the Equal Protection analysis” and therefore

intermediate scrutiny applies). As with other sex-based classifications, the

court will apply the category of “intermediate scrutiny,” a level of review

“between the[] extremes of rational basis review and strict scrutiny . . . which

generally has been applied to discriminatory classifications based on sex or

illegitimacy.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under intermediate

scrutiny, “classifications by gender must serve important governmental

objectives and must be substantially related to achievement of those

objectives” in order to be upheld. Craig v. Boren, 429 U.S. 190, 197 (1976).

The “burden of justification” for the classification “is demanding and it rests

entirely on the State,” United States v. Virginia, 518 U.S. 515, 531 (1996), and

“the reviewing court must determine whether the proffered justification is

‘exceedingly persuasive.’” Id.

As a general rule, a party “claiming an equal protection violation must

first ‘identify and relate specific instances where persons similarly situated

in all relevant aspects were treated differently, instances which have the

capacity to demonstrate that [plaintiffs] were singled . . . out for unlawful

oppression.’” Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995)

(emphasis in original) (quoting Dartmouth Review v. Dartmouth Coll., 889

F.2d 13, 19 (1st Cir. 1989). The crux, of course, is how one defines “similarly

situated” individuals. The First Circuit has opined that “[a]n individual is

‘similarly situated’ to others for equal protection purposes when ‘a prudent

person, looking objectively at the incidents, would think them roughly

equivalent and the protagonists similarly situated.’” Davis v. Coakley, 802

F.3d 128, 133 (1st Cir. 2015) (quoting Barrington Cove Ltd. P’ship v. Rhode

Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001)). The DOC,

in its Motion to Dismiss, argues that the pertinent category of “similarly

situated” individuals is “other inmates at MCI-Norfolk diagnosed with

gender dysphoria,” see Dkt #28 at 17, while Doe contends that the court

should look at how she has been treated relative to other female inmates in

Massachusetts prisons.

Taking Doe’s well-pled allegations as true, the court accepts that Doe’s

assignment to MCI-Norfolk resulted from her biological sex assignment at

birth and an ensuing categorical determination that she was ineligible to be

assigned to a women’s prison.14 In this sense, compulsory assignment to a

men’s prison caused Doe to be treated differently from other female

prisoners in the Massachusetts penal system. For purposes of the Motion to

Dismiss, the court concludes that Doe has met her burden of demonstrating

that the DOC’s unmitigated prison assignment policy as it applies to

transgender inmates is a sex-based classification that warrants heightened,

intermediate scrutiny, and it will only survive review if the “classification

14 The Complaint alleges that with respect to the request for a transfer,

prison officials told Jane Doe that she would be required to undergo genital

surgery before they would consider a transfer, but then refused to allow her

access to such surgery. Compl. ¶ 62. This issue, as with the question of the

DOC’s GD policy for evaluating transgender inmates for purposes of

determining prison assignments, cannot be definitively adjudicated without

further factual development, discovery, and expert testimony.

serves ‘important governmental objectives and that the discriminatory

means employed’ are ‘substantially related to the achievement of those

objectives.’” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724

(1982) (quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150

(1980)).

The court agrees with Doe that for present purposes the DOC has not

met its burden of demonstrating that housing her and other similarly-

situated transgender prisoners in facilities that correspond to their birth sex

serves an important governmental interest. It is true, as the defendants point

out, that prison systems give priority to inmate safety and security and that

this imperative will frequently warrant an interference with fundamental

rights of inmates. See Washington v. Harper, 494 U.S. 210, 223 (1990). It

is also true that courts are instructed to afford deference to state prison

officials in formulating policies that facilitate order, discipline, and safety in

the prison system. See Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Prison

administrators . . . should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain

institutional security,” the means of which “are peculiarly within the

province and professional expertise of corrections officials, and, in the

absence of substantial evidence in the record to indicate that the officials

have exaggerated their response to these considerations, courts should

ordinarily defer to their expert judgment in such matters.”) (internal

citations omitted).

That said, generalized concerns for prison security are insufficient to

meet the “demanding” burden placed on the State to justify sex-based

classifications. Virginia, 518 U.S. at 531. Certainly one can imagine a

particularized scenario in which a transgender inmate might pose a safety

risk to other inmates, say, for example, where the inmate has a past history

of crimes involving violence or sexual assault.15 Here, however, the

allegations in the Complaint are that the DOC houses inmates according to

their biological sex without regard to such particularized considerations.

Indeed, the Complaint points out that “Doe has had no disciplinary problems

at MCI-Norfolk and does not present a security risk,” Compl. ¶ 71(a), and that

she is currently serving a sentence for a nonviolent drug offense.

15 Subsection IV, Section 32A of the Mass. Gen. Laws taking effect on

December 31, 2018, contains just such a provision, allowing the DOC

“commissioner, the sheriff or a designee of the commissioner or sheriff” to

certify in writing that housing an inmate in the prison that corresponds to

his or her gender identity “would not ensure the prisoner’s health or safety

or that the placement would present management or security problems.”

The DOC in its Opposition to Doe’s Motion for a Preliminary

Injunction, see Dkt #45, argued that Doe’s continued confinement at MCI-

Norfolk, as with all inmates with GD, is the product of a case-by-case

assessment that “include[d] security level, criminal and discipline history,

medical and mental assessment of needs, vulnerability to sexual

victimization and potential of perpetrating abuse based on prior history.” Id.

at 24 (quoting the DOC GD Policy). The defendants maintain that “the

DOC’s GD policy does not provide a blanket requirement that all GD inmates

are placed in a facility which matches their assigned birth sex.” Id. at 25.

While a copy of the purported GD policy was tacked to the DOC’s

Opposition to Doe’s Motion for a Preliminary Injunction, Doe does not

concede its authenticity. As the policy is not attached to or incorporated by

reference in the Complaint, it cannot be considered in evaluating the Motion

to Dismiss. See Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131,

135 (1st Cir. 2017) (consideration of documents outside the pleadings is

permitted on a motion to dismiss only “for documents the authenticity of

which are not disputed by the parties; for official public records; for

documents central to plaintiffs’ claim; or for documents sufficiently referred

to in the complaint.”).

Discovery may ultimately establish that Doe was the beneficiary of a

periodic review process and that the DOC made a particularized

determination to continue to house her at MCI-Norfolk (and that it did so

when initially deciding her housing assignment). For present purposes,

however, the allegations in the Complaint, supplemented by Doe’s

Opposition to the Motion to Dismiss, allege that her housing classification

and the rejection of her transfer requests were based solely on her biological

sex. See Doe Opp’n, Dkt #33 at 20 (alleging that she is a transgender inmate

“housed exclusively based on [her] birth sex or genitals without regard to

[her] gender identity or the fact of having undergone gender transition”).

Because the classification as alleged is sex-based, and because the DOC has

not at this point met its burden of demonstrating a sufficiently persuasive

justification for the policy to meet the requirements of intermediate scrutiny,

the Motion to Dismiss Count Three will be denied.

Finally, Doe’s Due Process Claim (Count Four) rests on a line of cases

associated with Sandin v. Conner, 515 U.S. 472, 484 (1995), in which the

Supreme Court held that prison housing classifications give rise to a

protected liberty interest only if the classification creates an “atypical and

significant hardship on the inmate in relation to the normal incidents of

prison life.” Where such an “atypical and significant hardship” is imposed,

the State must make available a procedure by which the aggrieved inmate

can challenge the assignment. See Brathwaite v. Phelps, 2018 WL 2149771,

at *2 (3d Cir. May 10, 2018) (“To establish his due process

claim, [prisoner] was required to show that (1) the state, through the

duration and conditions of his confinement, imposed ‘atypical and

significant hardship’ on him giving rise to a protected liberty interest; and

(2) the state deprived him of the process he was due to protect that

interest.”).

The Complaint clearly sets out allegations that meet the requirement

of demonstrating an “atypical and significant hardship” imposed on Doe in

relation to the normal incidents of prison life as compared to other inmates

in the Massachusetts prison system.16 As discussed earlier in this opinion,

Doe’s hardships include fears for her physical safety, the potential for sexual

violence and assault, the trauma and stigmatization instilled by undergoing

regular strip-searches by male guards and, on occasion, being forced to

shower in the presence of male inmates. Doe has alleged that these fears do

16 Whether the Commonwealth has provided adequate procedural due

process for Doe may well present a different issue, as the DOC has provided

Doe with a treatment plan for her GD and at least occasional review of her

housing classification. See Compl. ¶ 62. The court, however, cannot on this

record resolve the dispute of fact between the defendants’ contention that

Doe has received all of the process to which she is due and Doe’s claims that

her housing requests have received no individualized consideration.

not present themselves in the same degree to male inmates at MCI-Norfolk,

and that inmates with GD housed at MCI-Norfolk are more likely to

experience affronts to their rights to bodily autonomy and privacy.

The Court will deny the DOC’s Motion to Dismiss Count Four.17

ORDER

For the foregoing reasons, the Motion to Dismiss is DENIED. As may

be apparent from this decision, the court is of the view that Doe may very

well prevail on her ADA and Equal Protection claims. On the assumption

that Doe will renew the motion for broad injunctive relief that she sought on

February 2, 2018, the parties are directed to meet and confer as to which

aspects of injunctive relief can be agreed to without the court’s intervention.

The parties will report the results of their conferral no later than July 13,

2018.

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE

17 Because the § 1983 count is predicated on alleged violations of Doe’s

constitutional rights to both equal protection and due process, Count Eight,

also, survives the Motion to Dismiss.