Settlement of NJ Civil Rights Suit Promises Necessary Reform Affirming Transgender, Intersex, and Non-Binary People in Prison

June 29, 2021

TRENTON ­­– New Jersey agreed to adopt major policy reforms regarding transgender, intersex, and non-binary people in state prisons, the result of an agreement settling a civil rights suit brought by a woman who was forced to live in men’s prisons for a year and a half. A woman going by the pseudonym Sonia Doe, represented by the ACLU of New Jersey and attorney Robyn Gigl of Gluck Walrath LLP, sued the New Jersey Department of Corrections and its officers in August 2019. As part of the settlement announced today, New Jersey has adopted a system-wide policy that includes housing in line with gender identity, and not sex assigned at birth. Only a few other states in the nation have such protections in place.

“The settlement of this lawsuit puts in place systemic, far-reaching policy changes to recognize and respect the gender identity of people in prison – with housing based on gender identity, use of appropriate pronouns, access to gender-affirming property, and much more,” said Tess Borden, ACLU-NJ Staff Attorney. “This policy places New Jersey in the vanguard of states committed to protecting transgender, intersex, and non-binary people in prison housing determinations and continues its path toward eliminating discrimination based on gender identity.”

Between the time Ms. Doe entered prison in March 2018 and filing her lawsuit in August 2019, she was confined in four different men’s prisons, despite the NJDOC’s knowledge that she is a woman. NJDOC staff tried to force Ms. Doe to live as a man and discriminated against her because she is transgender. Within weeks of the filing, which included ten counts for violations of New Jersey’s Law Against Discrimination and State Constitution, the NJDOC transferred Sonia Doe to Edna Mahan Correctional Facility for Women, a move that her lawyers had asked the Court to order.

“When I was forced to live in men’s prisons, I was terrified I wouldn’t make it out alive. Those memories still haunt me,” said Sonia Doe. “Though I still have nightmares about that time, it’s a relief to know that as a result of my experience the NJDOC has adopted substantial policy changes so no person should be subjected to the horrors I survived.”

Under the terms of the settlement announced today, the NJDOC adopts an agency-wide policy that implements protections for people in state custody who are transgender, intersex, and non-binary. The policy establishes:

  • A presumption that all people in state custody will be housed in line with their gender identity, not their sex assigned at birth, and a commitment that placement in line with gender identity will never be considered a management or security problem solely due to the person’s gender identity
  • Intake and identification procedures that include questions about gender identity and pronouns, recognizing self-attestation
  • A prohibition on harassment and discrimination by staff based on a person’s actual or perceived gender identity and a requirement that staff use appropriate pronouns (she/her, he/him, they/them) and honorifics (Mr., Ms., Mx.)
  • Guarantees regarding gender-affirming undergarments, clothing, and other personal property
  • Heightened privacy protections including the opportunity to shower separately and, as a general rule, prohibitions on cross-gender strip searches and on pat-down searches of transgender women by male officers
  • An acknowledgment that medical and mental health treatment, including gender-affirming care, will be provided as medically appropriate
  • A plan for distribution of the new policy to all custody staff and additional training on the policy for certain high-level staff members

“Having a policy that now explicitly recognizes the dignity of transgender, intersex, and non-binary people begins a new chapter at the DOC. While we know trans, intersex, and non-binary people still face extraordinary risk of harm, it is our hope that this policy will shepherd in a new era in New Jersey prisons of protecting and affirming transgender, intersex, and non-binary people’s lives,” said attorney Robyn Gigl of Gluck Walrath LLP, who represented Sonia Doe with the ACLU-NJ.

Sonia Doe was not the only transgender person who faced extraordinary risk of emotional and physical harm in New Jersey prisons. According to the lawsuit, the NJDOC’s prior practices had been to house all people in state custody according to their genitalia. In a national survey by the National Center for Transgender Equality, 21 percent of transgender women confined in men’s facilities reported suffering physical abuse while in prison, and 20 percent reported sexual violence.

As part of the settlement, all NJDOC corrections officers, regardless of rank or facility, will have to sign an acknowledgement that they have read the policy, and the NJDOC will provide additional targeted training on its provisions.

The settlement comes as New Jersey grapples with years of officer-perpetrated abuse at Edna Mahan Correctional Facility for Women, the state’s only women’s prison. The systemic abuses resulted in a U.S. Department of Justice investigation, Governor-directed internal investigation, and criminal probe by the Attorney General. It also comes as New Jersey reaffirms its commitment to meaningful corrections oversight and searches for a new corrections ombudsperson. Attorneys for Sonia Doe said they hope the policy changes help create a culture shift within correctional staff and renewed attention to the safety and well-being of all people incarcerated, especially those who are most vulnerable.

“This settlement comes at a time of heightened scrutiny of New Jersey’s prison system, and the state needs to commit fully to ensuring the dignity, health, and safety of people in their custody. This policy is a start and addresses the needs of some of the most vulnerable people in state prisons,” said Jeanne LoCicero, ACLU-NJ Legal Director. “Communities across the state are paying attention to this moment in NJDOC’s history, and in partnership with them, we will continue working to reduce the number of people in prisons and jail, and advocating for the human rights of those who are incarcerated.”

In addition to the policy change, the NJDOC will pay Sonia Doe $125,000 in damages as well as attorneys’ fees. The lawsuit, entitled Sonia Doe v. New Jersey Department of Corrections et al., was filed in Mercer County.

The settlement agreement and initial case documents can be read here.

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