S.G. v. New Jersey Department of Corrections

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2123-23

S.G.,1

APPROVED FOR PUBLICATION

Appellant,

March 4, 2026

APPELLATE DIVISION

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

Argued January 21, 2026 – Decided March 4, 2026

Before Judges Sumners,2 Susswein, and Chase.

On appeal from the New Jersey Department of

Corrections.

Ruth O'Herron argued the cause for appellant

(Gibbons PC and Jennifer N. Sellitti, Public Defender,

attorneys; Michael R. Noveck, of counsel and on the

briefs).

Justine Longa, Deputy Attorney General, argued the

cause for respondent (Jennifer Davenport, Acting

1

Records relating to civil commitment proceedings are confidential, thus we

refer to S.G. by initials to comply with our Court Rules. R. 1:38-3(f)(2).

2

Judge Sumners was added to the panel after oral argument with the consent

of all counsel.

Attorney General, attorney; Janet Greenberg Cohen,

Assistant Attorney General, of counsel; Andrew D.

Spevak, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

CHASE, J.A.D.

Resident, S.G., who identifies as female, is civilly committed to the

Special Treatment Unit ("STU") under the Sexually Violent Predator Act

("SVPA"), N.J.S.A. 30:4-27.24 to -27.38.3 She appeals from the Department

of Correction's ("DOC") January 4, 2024 final agency decision denying her

request to transfer from the STU to a women's-only correctional facility.

S.G. alleges discrimination, invoking both the Law Against

Discrimination ("LAD"), N.J.S.A. 10:5-1 to 14.1, and the Equal Protection

Clause. She asserts gender-based indignities, claims to have suffered

harassment, and argues the DOC failed in its duty to protect her dignity and

identity.

Careful review of the record, in light of the legislative intent and

established principles, yields the following: The DOC is bound by law to

house sexually violent predators separately from inmates serving criminal

sentences and designates the STU as the sole treatment facility for all

3

Individuals who are committed to the STU are referred to as residents.

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2

adjudicated SVPs. This classification is not arbitrary, capricious, or

unreasonable. It serves the statutory purpose—protection of society and

provision of treatment.

The LAD prohibits exclusion and indignity yet does not compel sex-

segregated facilities for civilly committed persons. The Equal Protection

Clause is not offended where legitimate, nondiscriminatory reasons govern

placement. The record shows S.G. is not denied equal dignity, nor uniquely

burdened on account of her gender identity. Thus, we affirm the DOC final

agency decision.

I.

In December 2010, S.G. sexually assaulted a four-year-old girl. In 2011,

S.G. pled guilty to aggravated sexual assault of a minor and was sentenced to

ten years' imprisonment, Megan's Law registration, and parole supervision for

life. After serving her sentence at the Adult Diagnostic and Treatment Center

("ADTC"), the court civilly committed her to the STU in 2019.

Since S.G. has been a resident at the STU, she has consistently identified

as a woman, expressed a desire to transition, and presented accordingly.

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3

Medical professionals diagnosed her with gender dysphoria 4 and prescribed

hormone therapy, in addition to off-site treatment.

The SVPA requires the DOC to operate a "secure facility" in which

persons who are civilly committed under the Act "shall be housed and

managed separately . . . and segregated" from "offenders" who are

incarcerated. N.J.S.A. 30:4-27.34(a). The SVPA assigns to the Department of

Health ("DOH"), the primary responsibility for the treatment of SVP's while

the DOC operates the STU. See N.J.A.C. 10A:35-1.1; 50 N.J.R. 1517(a).

At the STU, residents can be placed in either of two housing areas

known as "Main" and "Annex." The core difference between the two is that

"Main" residents are assigned individual rooms, while in the "Annex" they are

housed for the most part in a dormitory setting (excluding certain residents

with medical needs).

Upon her arrival at the STU, S.G. was placed into the Main North Unit.

On Main North, S.G. has her own room, with access to single occupancy

showers, all the programming available to STU residents, as well as the ability

to purchase any personal items, including any healthcare items. Like most

4

See Sacklow v. Betts, 450 N.J. Super. 425, 431 n.3 (Ch. Div. 2017)

("According to the American Psychiatric Association, gender dysphoria

'involves a conflict between a person's physical or assigned gender and the

gender with which he/she/they identify.'").

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4

other residents on Main, she can freely move between and access the common

spaces and treatment rooms within Main.

In July 2023, S.G. indicated to her treatment provider that her attorney

was going to apply for her transfer to the female-only Edna Mahan

Correctional Facility. During this time, the DOC and DOH had drafted, but

not finalized, a Joint Transgender Policy to "create inter agency policy,

procedure, and guidance to provide best practices for mental health, medical

needs, and care and custody for STU Residents who identify as transgender." 5

Upon learning of S.G.'s pending transfer request, the STU Clinical

Director, Doreen Stanzione, Ed.D., scheduled a meeting with S.G. and a DOH

treatment team to provide a housing recommendation to DOC in the spirit of

honoring the draft Transgender Housing Policy. Multiple meetings with S.G.

occurred over the next couple of weeks. In those meetings, S.G. claimed to

have been subject to gender-based discrimination and mistreatment by staff

and other residents.

At the conclusion of those meetings, Dr. Stanzione drafted a DOH

Transgender Housing Committee Statement which stated that S.G. identified

four reasons underlying her transfer request: (1) a resident previously

"pushing up" on her for sexual favors; (2) inappropriate comments from

5

At oral argument, we were informed that the policy is still in draft form.

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5

residents; (3) stolen and damaged undergarments from the laundry department;

and (4) anticipated increasing risk with her anticipated gender-affirming

surgery.

The statement also detailed that S.G. and treatment staff agreed that

while there was an absence of "off-site" options for STU residents, her current

housing arrangement was appropriate. It also stated that the assessment team

found that they believed that her risk of recidivating would not be negatively

impacted by an off-site placement. The treatment and assessment teams

recommended that she remain in her current housing with the caveat that "off -

site" or separate housing should be made available as S.G. continued to

develop secondary feminine sex characteristics.

Additionally, Dr. Stanzione indicated that the DOH and DOC had begun

working on installing cameras in the laundry area and addressed the

appropriate standards for laundry work with the current laundry worker. Dr.

Stanzione also documented that she had relayed S.G.'s concerns regarding

other resident's inappropriate behavior to the DOC Special Investigations

Division ("SID").

In November, S.G. submitted a Gender Identity Information Form to the

DOC to officially designate her gender identity as female for the first time.

She then filed a grievance citing DOC Policy PCS.001. TGI.01, which applies

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to transgender, intersex, and non-binary incarcerated persons in custody at

correctional facilities. S.G. alleged that she was being subjected to

"discriminatory treatment and harassment from other residents," including one

instance of physical assault, and denial of gender affirming care. She

requested that the DOC "identify a female-only residence" where she may be

transferred and allow her to "submit a formal request for transfer to this

female-only site." S.G.'s counsel then sent a letter to DOC alleging that a STU

staff member had harassed S.G. by watching her, on one occasion, while she

was in her undergarments, get dressed.

Upon receipt of the grievance, ADTC Administrator Patricia Nah

notified the SID of a potential violation of the Prison Rape Elimination Act

("PREA"), 34 U.S.C. §§ 30301 to 30309, and the SID team continued to

investigate the allegations. Nah also informed S.G.'s doctors of her

complaints. After not hearing back from Nah, and assuming this silence meant

the request had been denied, S.G. filed an internal appeal of the grievance's

closure.

SID investigated S.G.'s claims. SID took a taped statement from S.G.,

but she could not provide specific dates or times of her allegations, other than

that these incidents occur daily. SID investigators conducted interviews with

eight other residents to further investigate S.G.'s claims. For the few incidents

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that S.G. provided the names of residents, each alleged assailant denied the

allegation of harassment. SID also reviewed videotapes but could find no

evidence of harassment.

On January 4, 2024, the DOC closed S.G.'s appeal and informed S.G.:

Please be advised that the policy referenced (PCS.001.

TGI.01.) is applicable to incarcerated persons, not

residents. As you know, there are a number of

differences between the two populations, so that

would make it impractical to have the same policy for

both. Additionally, the DOC does not maintain a

separate facility for female STU residents at this time.

In any event, we are working internally to

appropriately address your needs. Moreover, you

were interviewed for safety concerns on 12/4/2023.

At which time, you stated that you were assaulted . . .

a few months ago, but the issue was already addressed

and that you have not been assaulted since. Lastly,

feel free to advise of any future issues via JPAY.

Thank You[.]

This appeal followed.

During the pendency of this appeal, the DOC requested a remand so that

the record could be supplemented to adequately reflect the Department's full

decision-making process. We granted a temporary remand. Following the

remand, the DOC provided S.G. with three additional documents: the draft

"Transgender Policy" for the STU; the October 3, 2023 "DOH Transgender

Housing Committee Statement" from Dr. Stanzione; and a supplemental letter

from Patricia Nah, dated January 9, 2025.

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Nah's supplemental letter stated that "DOC has determined that [S.G.]

cannot be placed into alternative housing outside the STU at this time." Nah

explained that the DOH staff discussed options and ultimately found that her

current placement—a room with her own sleeping arrangements and

bathroom—remained the best option for her, as off-site housing would

increase her risk of sexual recidivism. The DOC also reasoned that it "does

not have a separate facility or housing unit for transgender residents." The

letter also stated, "[p]lacement outside the STU jeopardizes [S.G.'s] treatment

and poses management and security issues with regard to her safety . . . and the

safety of the public."

II.

"[A] 'strong presumption of reasonableness attaches to the actions of the

administrative agencies.'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.

2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)).

"[D]ecisions made by an administrative agency entrusted to apply and enforce

a statutory scheme" are reviewed "under an enhanced deferential standard."

East Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493

(2022).

Therefore, our role in reviewing a final decision of the DOC is limited.

Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010).

A-2123-23

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Indeed, "[w]ide discretion is afforded to administrative decisions because of an

agency's specialized knowledge." Matter of Request to Modify Prison

Sentences, 242 N.J. 357, 390 (2020). The decision will not be disturbed on

appeal unless it was "arbitrary, capricious, or unreasonable or it [was] not

supported by substantial credible evidence in the record as a whole." Mejia v.

N.J. Dep't of Corr., 446 N.J. Super. 369, 376 (App. Div. 2016) (quoting Henry

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

"Basic to the resolution of any proceeding seeking review of prison

administrative action is the legal principle that courts will not interfere with

the internal administration of the institution, absent action by the prison

authorities which deprives an inmate of [their] constitutional rights or is

clearly capricious or arbitrary." State v. Rydzewski, 112 N.J. Super. 517, 521

(App. Div. 1970). Thus, the arbitrary and capricious standard focuses on four

questions:

(1) whether the agency's decision offends the State or

Federal Constitution; (2) whether the agency's action

violates express or implied legislative policies; (3)

whether the record contains substantial evidence to

support the findings on which the agency based its

action; and (4) whether in applying the legislative

policies to the facts, the agency clearly erred in

reaching a conclusion that could not reasonably have

been made on a showing of the relevant factors.

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[Karins v. City of Atl. City, 152 N.J. 532, 540 (1998)

(quoting George Harms Constr. Co. v. New Jersey

Turnpike Auth., 137 N.J. 8, 27 (1994)).]

III.

We begin with S.G.'s contention that the DOC's decision is arbitrary,

capricious, or unreasonable because it violates "express . . . legislative

policies" enshrined in the LAD. S.G. further asserts that because of this

violation, her allegations amounted to a prima facie case of unlawful

discrimination on the basis of her sex, gender identity, and/or gender

expression. We are not persuaded.

The LAD protects against discrimination in the workplace, housing, and

places of public accommodation. 6 N.J.S.A. 10:5-4. It prohibits discrimination

based on sex, gender identity, and gender expression, and demands that

managers of places of public accommodation, which are "in [their] nature

reasonably restricted exclusively to individuals of one sex[,]" must nonetheless

admit "individuals . . . based on their gender identity or expression." N.J.S.A.

10:5-12(f)(1).

When analyzing LAD claims, we follow the "'procedural burden-shifting

methodology' set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

6

For the purposes of this appeal, the DOC did not challenge that the STU is a

place of public accommodation.

A-2123-23

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802-04 (1973)." Meade v. Tp. of Livingston, 249 N.J. 310, 328 (2021)

(quoting Zive Stanley Roberts, Inc., 182 N.J. 436, 447 (2005)) (internal

citation reformatted). Under this burden-shifting framework:

(1) the plaintiff must come forward with sufficient

evidence to constitute a prima facie case of

discrimination; (2) the defendant must then show a

legitimate nondiscriminatory reason for its decision;

and (3) the plaintiff must then be given the

opportunity to show that defendant's stated reason was

merely a pretext or discriminatory in its application.

[Ibid. (quoting Henry v. Dep't of Hum. Servs., 204

N.J. 320, 331 (2010)).]

First, S.G. fails to state a prima facie claim under the LAD. S.G.

mistakenly believes that N.J.S.A. 10:5-12(f)(1) requires facilities to be sex-

segregated and that people's assignments in these sex-segregated facilities will

be aligned with their gender expression or identity. But that is not what the

LAD says. N.J.S.A. 10:5-12(f)(1) clarifies that the LAD does not bar—but

also does not compel—the creation of "any place of public accommodation

which is in its nature reasonably restricted exclusively to individuals of one

sex." Moreover, even the caselaw that S.G. cites in an attempt to show that

public facilities must be sex-segregated itself is permissive, stating that

"facilities or activities which may to a significant degree involve at times an

occasion for breach of bodily privacy may reasonably be confined to one

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sex[.]" National Organization for Women v. Little League Baseball, Inc., 127

N.J. Super. 522, 532 (App. Div. 1974) (emphasis added).

The SVPA requires the DOC to operate a facility for those civilly

committed under the Act. Those SVP residents "must be housed and managed

separately . . . and segregated" from prisoners. N.J.S.A. 30:4-27.34(a). The

STU is the only treatment facility currently designated for housing persons

adjudicated as SVPs. Because DOC has designated a single facility to hold all

persons adjudicated as SVPs, regardless of their sex assigned at birth or gender

identity, the obligations that fall upon sex-restricted facilities under N.J.S.A.

10:5-12(f)(1) are not applicable.

IV.

S.G. also argues that the DOC created a hostile environment through the

discriminatory actions of DOC employees and the ongoing harassment of other

STU residents that the DOC has failed to address. Thus, we must determine

when the DOC was made aware of the harassment, and whether they took

adequate action to end the harassment. L.W. ex rel. L.G. v. Toms River

Regional Schools Bd. of Educ., 189 N.J. 381, 407 (2007). We conclude that

they did.

Days after hearing S.G.'s complaints, the DOC began an investigation of

each of S.G.'s claims. This included interviewing S.G. and eight other

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residents as well as trying to obtain video evidence. The DOC was limited in

investigating these claims because S.G. could not provide specific dates and

times for each incident; stating that the physical assault happened "several

months ago." S.G. also had trouble identifying the specific harassing residents

and stated that the comments were made when she was "by herself" and that

"the comments were not loud enough for the officers or other residents to

hear."

Although SIDs attempted to investigate these incidents by reviewing the

surveillance videos that existed during the time range that S.G. provided them,

they did not find any evidence affirming her claims. The few residents who

she named denied the alleged incidents. When some residents identified others

as who they believed made harassing comments, DOC interviewed the

identified residents, and each of these residents denied doing so. Meanwhile,

when S.G. was asked about her safety by investigators, she stated that she "was

not specifically threatened by any resident inside the STU" and that "her only

concern was that she is a transgender[] woman housed in an institution

amongst sexually violent persons."

The incident with the unnamed DOC staff member watching her change

also cannot be considered to have created a prima facie LAD claim because

she was not being treated differently than other residents in STU. S.G.'s claim

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that there was an inadequate response to this claim is meritless because she

failed to name the DOC staff member, failed to give a date or time of the

incident's occurrence, and failed to formally report the incident to the DOC;

thereby giving the DOC almost no conceivable way to investigate the claim.

Furthermore, although STU residents have rights, these rights, including the

right to privacy and the right to dignity, can be denied if deemed "necessary to

protect the resident, other residents, staff, general public, or property, or to

ensure the safe, secure, and orderly operation of the facility, or for other good

cause." N.J.A.C. 8:131-2.3(a).

Second, even if S.G. did state a prima facie claim, the DOC has

legitimate, nondiscriminatory reasons for its decision, which S.G. has failed to

disprove. A reason is considered legitimate and nondiscriminatory if the

defendant can show that they "would have made the same decision even in the

absence of the impermissible consideration." Bergen Commer. Bank v. Sisler,

157 N.J. 188, 209 (1999). DOC's legitimate reasons included: currently the

STU is not a male-only facility and there is no female-only facility; that SVPs

are legally required to be housed separately from incarcerated people; and

individualized concerns regarding S.G.'s treatment.

Third, S.G. cannot show that DOC's reason for the decision was merely a

pretext or discriminatory in its application. Zive, 182 N.J. at 449. In enacting

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the SVPA, the Legislature intended "to broaden the reach of New Jersey law to

afford protection to society from those sexually violent predators who pose a

danger as a result of a mental abnormality or personality disorder which makes

them likely to engage in repeated acts of predatory sexual violence." State v.

Mumin, 361 N.J. Super. 370, 381 (App. Div. 2003) (quoting In re Civil

Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002)). The aim is

also to "provide treatment to sexually violent predators." Id. at 385.

Therefore, the law has set out the treatment of SVPs to be distinctly different

from those of other incarcerated persons and legally mandates that their

treatment and housing is not the same.

The SPVA makes abundantly clear that STU residents are not inmates,

and DOC is required to house these two populations separately. This

difference is pointedly shown through the way STU treats its residents by

addressing "the level of risk and specific criminogenic needs for each Resident

while attending to factors that might prove to be barriers to learning and

amenability." Therefore, DOC's reasoning is nondiscriminatory and not

pretextual; rather, it has been determined to be the best way for S.G. to receive

the treatment she needs and is the only legal option.

Notably, S.G. is not precluded from requesting future transfers based on

new circumstances if she feels her current placement at the STU is not

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suitable. In fact, the DOC agreed to continue to periodically review her

housing, consistent with its obligations.

V.

We next analyze S.G.'s contention that the DOC violated her equal

protection rights. S.G. argues by providing transgender people incarcerated in

prisons a procedure whereby they may seek transfer to a secure facility that

reflects their gender identity and expression, while denying access to the same

or a similar procedure to her because she is a STU resident, the DOC subjected

her to unfair differential treatment on the basis of her civil commitment status. 7

We are not convinced.

The New Jersey Constitution guarantees equal protection of the laws

under Article I, Paragraph 1. Lewis v. Harris, 188 N.J. 415, 442 (2006). The

Equal Protection Clause "is essentially a direction that all persons similarly

situated should be treated alike." State v. Chun, 194 N.J. 54, 100 (2008)

(quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

(1985)). In New Jersey, a balancing test considers a three-factor analysis to

determine if a person's equal protection rights have been violated, weighing

"'[1] [the] nature of the affected right, [2] the extent to which the governmental

7

At oral argument it was conveyed to us that there are currently four other

transgender women at the STU.

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restriction intrudes upon it, and [3] the public need for the restriction.'"

Caviglia v. Royal Tours of Am., 178 N.J. 460, 473 (2004) (quoting Greenberg

v. Kimmelman, 99 N.J. 552, 567 (1985)).

DOC was not treating S.G. differently due to her gender identity or

expression; rather, she was being treated differently because the law requires

SVPs to be housed separately from incarcerated persons and this placement

was best for her treatment as an SVP. The DOC relied on numerous valid

factors in denying S.G.'s claim that are unrelated to her status as a transgender

woman—such as safety concerns, S.G.'s need for treatment, her need to learn

how to navigate and avoid situations that may trigger a relapse, loneliness, and

her need to learn how to integrate into society on a practical level. The

decision was an individualized determination of S.G.'s needs, including the

management and safety concerns by her STU placement. Because the

differential treatment between SVPs and incarcerated persons serves New

Jersey's legitimate and important interests, we find her Equal Protection

argument to be without merit.

Although incarcerated persons who are transgender may be able to

transfer to female-only facilities, this is not differential treatment, as not only

do STU residents receive specific treatment for their respective conditions, but

they also can receive support from DOC staff to aid in their medical transition.

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Therefore, rejecting S.G.'s transfer is not an intrusion on her right to be free

from discrimination based on her status as an SVP.

In weighing the Greenberg factors, we recognize the right for

transgender individuals to be free from discrimination based on their gender

identity is highly valued as shown through the fact that it is explicitly included

as a protected class under N.J.S.A. 10:5-12. 99 N.J. at 567. However, the

rejection of her transfer request does not significantly intrude on her rights.

The DOC staff actively affirms S.G.'s gender identity, she participates in twice

weekly process groups where her gender identity is clinically addressed, she

has a supportive group of transgender peers, and DOC staff escort her to

medical transition appointments and ensure that she has proper treatment for

her transition.

"The public need for the restriction" also weighs in DOC's favor.

Caviglia, 178 N.J. at 473. The goals of STU, in contrast to that of typical

incarceration, are not punitive and aim "to protect other members of society

from the danger posed by sexually violent predators." In re Commitment of

J.M.B., 197 N.J. 563, 571 (2009) (citing N.J.S.A. 30:4-27.25); In re Civil

Commitment of W.X.C., 204 N.J. 179, 201 (2010). Thus, STU does not intend

to punish, but rather to provide "[a] secure environment for involuntarily

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civilly committed sexually violent predators which encourages participation in

sex offender treatment." N.J.A.C. 10A:35-1.2(a)(2).

When weighing the factors it is important to differentiate that while

inmates and STU residents both are in involuntary detention, they are not

similarly situated. Of most significance, inmates are subject to a finite term of

imprisonment based on the imposition of a set period of incarceration at the

discretion of a judge. The goals of incarceration include punishing past

behavior and trying to prevent future crimes through rehabilitation and the

deterrence prospect of future incarceration. N.J.A.C. 10A:1-1.1(a) (1-7). In

sharp contrast, civil commitment is permitted, not to punish past behavior, but

instead because of a determination that the person in question qualifies as an

SVP—defined as someone who "suffers from a mental abnormality or

personality disorder that makes the person likely to engage in acts of sexual

violence if not confined in a secure facility for control, care and treatment."

N.J.S.A. 30:4-27.26. Therefore, given the unique interests protected by the

SVPA and the Legislature's undeniably significant interest in effectively

treating SVPs for their own safety and for the safety of the public, the factors

balance in favor of the DOC.

Lastly, we briefly address S.G.'s contention that the DOC violated her

rights by housing her in a men's facility while two cisgender women who were

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civilly committed pursuant to the SVPA were housed in a women's prison. In

support of this argument, S.G. submits certifications, in her reply brief, from

two attorneys who represented civilly committed cisgender women who were

allegedly housed at Edna Mahan Correctional Facility. This argument is

unavailing for several reasons. First, it is well settled that a party may not

raise new or expanded arguments in a reply brief. See State v. Smith, 55 N.J.

476, 488 (1970); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J.

Super. 590, 596 (App. Div. 2001). Moreover, addressing this issue at this

stage would require us to speculate as to the circumstances under which a non -

incarcerated person might be placed in a facility with individuals serving

criminal sentences, potentially in violation of the law. Accordingly, we

decline to consider this claim in the absence of a complete record. Second, the

STU is not designated as a male-only facility; rather, it houses SVPs of any

gender identity, including male, female, transgender, or otherwise.

To the extent we have not addressed any of appellant's arguments, we

are satisfied they lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(D) and (E).

Affirmed.

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