US District Court Judge Denise Cote ruled on August 1 that a transgender inmate could proceed with her discrimination claims against an in-patient substance abuse treatment center that denied her the opportunity to participate in a support group tailored to her gender identity.
Cote allowed Sabire Wilson to go forward with claims based on state law and on her right to equal protection of the laws under the US Constitution.
The opinion, published in the August 19 New York Law Journal, is interesting both because it applies the ban on housing discrimination in the New York State human rights law to a residential treatment facility and because Wilson’s claim under the human rights law is proceeding despite that statute’s lack of specific language regarding gender identity.
Brooklyn’s Phoenix House fails in motion to have housing bias, equal protection suit dismissed
According to Wilson’s complaint, she is a pre-operative male-to-female transsexual arrested for drug possession in 2008. Under a plea agreement, she entered New York’s Drug Treatment Alternative to Prison, voluntarily admitting herself to a residential facility instead of spending time in prison. She selected Phoenix House in Brooklyn, she said, because of its published policy of non-discrimination on the basis of sex or sexual orientation. When she was admitted to the facility in late 2008, she told the staff about her gender identity. Though she was required to sleep in male facilities and use male bathrooms, Wilson was allowed to dress as female.
In early 2009, a senior counselor at Phoenix House okayed Wilson’s participation in an all-female recovery group, but when meetings started, some members complained about her presence and she was asked to leave. When she appealed, she was told she shouldn’t have been given permission to participate in the first place. As she persisted in her demand to be admitted to the group, Phoenix House discharged her to the court, and she is now incarcerated at Southport Correctional Facility upstate.
Wilson acted as her own attorney in filing suit in federal court.
Phoenix House responded to the suit by asserting the case should be dismissed under the federal Prison Litigation Reform Act, which bans inmate suits unless administrative remedies are first exhausted; that as a private facility it was not subject to an equal protection constitutional claim; and that state human rights law housing protections did not apply to this situation.
Judge Cote rejected all three of these defenses.
On the question of Wilson exhausting other remedies, the judge found that the defendant has the burden of showing what procedures she did not use. She complained to her supervisor and then was rebuffed in taking that denial up the chain at Phoenix House. The facility presented no evidence Wilson had the right to pursue appeal within the state Department of Corrections for Phoenix House’s decision.
Because Phoenix House is compensated by the state for accepting criminal defendants under plea bargain arrangements, the judge found sufficient “nexus” with government obligations to apply constitutional standards to the facility’s action.
In response to Wilson’s claim that in failing to accommodate her gender identity, Phoenix House violated state human rights law provisions banning housing discrimination based on sex or sexual orientation, the facility argued those provisions were aimed at landlords, not residential treatment facilities. Cote concluded, however, that the facility had “not identified any support for their argument that Phoenix House is not the ‘owner, lessee, sub-lessee, assignee, or managing agent of’ a ‘housing accommodation’ under the statute.
Phoenix House apparently did not challenge the lack of specific language in New York State’s human rights law regarding gender identity, and in the nine years since the Legislature added sexual orientation to the statute, efforts to pass the Gender Expression Non-Discrimination Act (GENDA) have repeatedly faltered –– much to the consternation of transgender rights advocates. Several New York courts, however, have ruled that the human rights law’s provisions on sex and sexual orientation discrimination outlaw discrimination based on gender identity.
Despite such favorable rulings and Wilson’s success on this point, a more prudent course of action for a plaintiff in her position would be to raise a claim under New York City law, which explicitly bars discrimination based on gender identity and expression.
When Phoenix House first submitted its motion to dismiss, Wilson asked the court to dismiss her case without prejudice, explaining she had limited access to the prison law library and was not in a position to fully oppose the motion. Cote decided the case anyway, and then gave Wilson three weeks to consider whether she still wishes to have it dismissed.
Given that she has defeated Phoenix House’s motion on most points, Wilson may want to move forward should she find a pro bono attorney. It’s unfortunate that Cote’s ruling was not published until Wilson’s three-week window for deciding how to proceed was almost up. An LGBT legal advocacy group could have been helpful in guiding her thinking.