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Muslim Male Inmate Objects to Strip Search by Apparently Anatomically Female Transgender Guard

An interesting case now being litigated in federal court in Wisconsin.

From West v. Kind (E.D. Wisc. July 31, 2018):

The plaintiff [Rufus West] alleges that in 1995 he embraced Islam. He states that Islamic law prohibits him from exposing his nakedness to anyone except his wife. The plaintiff also states that under Islamic law, "males and females are identified and determined by the sex that Allah (i.e., the Creator) created them with at birth." …

The plaintiff says that on July 2, 2016, after a visit with a friend, he went to the strip search area to be strip searched under a policy that requires all prisoners to submit to a strip-search after a contact visit. Several officers were conducting strip searches.

According to the plaintiff, when it was his turn to be strip searched, defendant Buhle, a female correctional officer, approached him and ordered him to strip. The plaintiff states that he asked defendant Buhle how she was able to do that and she responded, "I'm a dude." The plaintiff says he looked at the other correctional officers, "to see if this was a prank," but that they avoided eye contact with him. He alleges that at this point, he "started to panic because he knew that Officer Buhle was a female based on her female features (breasts, face, voice and demeanor) and that exposing his nakedness to her would be in violation of his Islamic beliefs ….

The plaintiff indicates that "[i]t was later brought to [his] attention that Officer Buhle is a female claiming to be a male and therefore is afforded all of the duties that the male officers perform without discrimination."

The plaintiff alleges that in anticipation of another encounter with defendant Buhle, he wrote defendants [GBCI Security Director John Kind and GBCI Warden Scott Eckstein] and requested an "[e]xemption from exposing my nakedness to the opposite sex ... because it is against Islam." On July 12, 2016, defendant Eckstein allegedly denied the plaintiff's request: "I have reviewed your correspondence and have also discussed your concerns with our Security Director. I have reviewed the situation and the officer in question is a male and is qualified to complete these duties. If in the future you are directed to submit to a strip search by this individual or any other male staff member it is my expectation that you will comply."

The plaintiff alleges that in his denial of the plaintiff's request, defendant Kind stated, "This person is a male and any further issues on this will result in discipline for you." …

"RLUIPA prohibits prisons receiving federal funds from imposing a substantial burden on an inmate's religious exercise unless prison officials can demonstrate `that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.'" Assuming that GBCI receives federal funds, the plaintiff has alleged that Buhle, Kind and Eckstein imposed a substantial burden on his First Amendment free exercise rights.

He has also alleged that there was no compelling government interest in having Buhle search him, or observe the search; there were male officers available in the strip search area. The plaintiff may proceed on his RLUIPA claim against Buhle, Kind and Eckstein.

Of course, this is not a finding that the plaintiff will win his claim, only that the case can go forward.

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  • Ghost of Patrick Henry||

    One does not get to declare ones own sex. That is a biological reality that exists in the real world.

    The guard may be transgendered, but (s)he is not male.

  • Scarecrow Repair & Chippering||

    That's what the case is all about, yes.

  • An Owl Named Dur||

    No, it's not. No judicial decree handed down by any court can change the fact that the guard in question is a woman.

  • NToJ||

    Yes it is. It's about the assertion by the inmate that is functionally the same as the comment by Ghost. That's the issue.

  • John Rohan||

    They can declare it legally. That has zero bearing on reality, or someone's biological sex.

  • perlchpr||

    Right. "Male" and "Female" are biological designations based on chromosomes.

    Irrespective of whether or not the person in question is a "man" or not, their gender, that is, there is no situation with current technology whereby they can actually become "male".

    Call me back when we get to Altered Carbon levels of med-tech.

  • A nerdy Fred||

    You did a good job paying attention in high school biology. They do kind of over-simplify things.

    Chromosomes aren't as definitive as you were taught. Just to blow your mind, Google "46 XY pregnancy" and look at multiple articles in the medical literature.

    Sexual development is complicated and error-prone. For one example, there's something called Androgen Insensitivity Syndrome. If a boy's body doesn't respond to testosterone during development, that boy's body is going to look female, and it still belongs to a boy.

    I am grateful I did not have a medical problem like that, and anybody who did I will treat with compassion and respect.

  • perlchpr||

    The existence of occasional birth defects does not refute the underlying basic point.

  • Rev. Arthur L. Kirkland||

    I am grateful I did not have a medical problem like that, and anybody who did I will treat with compassion and respect.

    You would be a lousy Republican, conservative, and bigot.

  • Rigelsen||

    You may not be a Repubican or conservative, but you demonstrate your reactionary bigotry every day.

  • OtisAH||

    You should look up the definition for "reactionary" some time if you're going to keep using it.

  • Ben of Houston||

    There are extremely rare exceptions. They make up a staggeringly small range of cases. To compare, there are technically three calls, "heads" "tails" and "edge". However, a coin flip is for all practical purposes binary.

    In any case, this is not one of those cases. The guard is anatomically female. A judge declared her to be a man, but this man states the plain and simple truth that she is still female and disrobing in front of this guard would be against his religion.

  • Zoe Brain||

    Extremely rare? 1 in 300 men don't have the 46,XY "male" chromosomes most men do.
    So that's about half a million men in the US alone.

    One of the problems Intersex people face is that there a common misconception that they must be "extremely rare" "one in a million" etc.

    If you count the majority of variations from the usual that only lab tests (such as karyotypes - chromosome tests) can detect, it's 1 in 60. More common than having red hair.

    That's not a particularly useful figure though in practical terms. More useful are figures of "one in a couple of hundred" where the variation is obvious. Or "one in about a thousand" where the body is so mixed, you can't really say whether it's more male than female, or the reverse.

    Transsexualism, where the neuro anatomy is largely of one sex, the genitalia and secondary sex characteristics mostly of the other, that's about 1 in 3000.

  • Lee Moore||

    According to Wikipedia. the prevalence of ovotesticular disorder of sexual development - ie where there is genuine ambiguity about the gonads, is about 1 in 20,000 births. That's not "one in a million" but it's pretty rare, say 15-20,000 in th US. I don't know how many times a coin comes down on "edge" but if it was 1 in 20,000 or so that wouldn't shock me.

    Other disorders which do not involve any actual ambiguity about sex - ie where the gonads are unambiguous - and which concern genitals, skeleton, musculature and other secondary sexual characteristics are more common. But it's certainly not the case that everyone with such an abnormality wishes to be behave and be accepted contrary to their actual sex.

  • Krayt||

    1. As far as anyone knows, geneic or developmental disorders are not at issue in this case.

    2. Even if they were, it's up to the religious person (and, ideally, but not required, with consultation with their religious leaders) to decide whether the person still counts as a woman in the eyes of God.

    There are many guards, so the government has less restrictive means of accomplishing the goal without forcing someone to violate their religion.

  • Lee Moore||

    A nerdy Fred is right to point out that it's a bit more complicated than chromosomes.

    There is however a bright line, notwithstanding the many different kinds of genetic abnormality. The sex of an organism is, throughout most of the animal world, conclusively determined by the type of sex cells it can produce. There are only two types of sex cells - sperm and egg. If it can make sperm only it's male, if it can make eggs only, it's female. If it can make both it's hermaphrodite.

    The type of sex cells it can make is in turn determined by the type of gonads it has. Male, female or both. And when it comes to humans, virtually no one has ambiguous gonads. Even those with atrophied or non functioning gonads almost always have testes or ovaries, not both and not a mushy mix.

    There are however a very few who have genuinely ambiguous gonads, though no human has yet been discovered who has functioning gonads of both sexes. But we have to allow the existence of a very tiny minority of people who cannot be categorsed as clearly male or female on the basis of their gonads. They are the true intersex humans.

    Most of the chromosomal abnormalities however do not concern this basic determinant of sex - the gonads, but concern secondary sexual characteristics, such as physical appearance (including genitals, skeleton, musculature, skin, hair, voice and brain.) But none of those things make any difference to the sex of the organism, which is simply a sex cell / gonad thing.

  • Lee Moore||

    Of course the vast majority of transgender folk have very few secondary sexual characteristics of their "chosen" sex, which is why so few transgender children and teens persist as transgendered. And even among those few unfortunates whose brains are absolutely insisting to them that they're in the wrong body, virtually none are actually intersex. Their actual sex is almost always unambiguous and they genuinely are in a body that feels wrong to them. Hence the depressingly high suicide rates.

  • NToJ||

    It doesn't really matter. If the religious belief was that he could only be searched by biological females who declare themselves male, you'd still have a reasonable accommodation analysis coming.

  • regexp||

    One does not get to declare ones own sex. That is a biological reality that exists in the real world.

    The real world disagrees with you. It's amazing how much fake outrage "conservatives" express over people that pose absolutely no threat to you.

  • AmosArch||

    The 'real world' also once disagreed with the idea that the world was a sphere.

  • nonzenze||

    Somehow I don't imagine history judging this guy similarly to how it judged Galileo.

    YMMV.

  • Ben of Houston||

    Galileo didn't prove the world was round. It was old news in Eratosthenes's day when he calculated the circumference of the Earth.

  • An Owl Named Dur||

    Actually, the real world - i.e., the world outside of the progressive fever swamps - absolutely does agree with him. The majority of Americans believe that gender is an immutable biological fact "determined at birth". And since you brought the "world" into the conversation, you can be assured the split is even more pronounced in Africa, Asia, Latin America and the Middle East.

    As for the threat, prison officials have very clearly threatened the inmate with disciplinary action, backed by the full force of the state, up to and including physical force, should he refuse to disregard his sincerely held religious beliefs.

  • aluchko||

    Actually, the real world - i.e., the world outside of the progressive fever swamps - absolutely does agree with him. The majority of Americans believe that gender is an immutable biological fact "determined at birth". And since you brought the "world" into the conversation, you can be assured the split is even more pronounced in Africa, Asia, Latin America and the Middle East.

    Then a majority of Americans are wrong.

    While most people fit cleanly into one of two biological genders the existence of intersex people is an indisputable fact.

    The idea that intersex conditions extend into the brain, ie a male brain in a female body or vice versa, shouldn't be that surprising.

  • mad_kalak||

    Intersex births about about 2 out of every 100,000. Let's not set the rule by the exception, eh?

    As for males brains in female bodies or vice versa, since we don't even understand consciousness, I call that a red herring, or more likely, a mental illness.

  • aluchko||

    We're not talking about "rule by the exception", this is acknowledging the exceptions exist.

    As for the genderness of the brain... you now have to argue that gender identity is entirely nurture and there's no biological component.

  • mad_kalak||

    The trans issue is all about rule by exception. We, the majority who (admittedly by birth, but so are a million other things) are not intersex, and we who are by luck not suffering from the mental illness of gender dysphoria, are being told that we must change millennia of cultural tradition based on biology because of a minority of a minority don't want to feel put out.

    Now, as to your second sentence, I don't *have* to argue anything. But I see where you're coming from, and I appreciate it. The specifics of the biological mechanics are beyond my expertise, but my understanding is that the difference in biological sex, hormones, fetal development, etc., lead to measurable differences in the brain between men and women, such as the regions for tool use or the corpus callosum which connects the two halves of the brain.

    However, to put it back on you, then, since I don't know, what evidence is there that people suffering from gender dysphoria, measurably, have a brain that is more like the opposite gender of the one they are born with?

  • aluchko||

    Ok, so I don't know what you mean by "rule by the exception" then. The exceptions exist, you need to deal with them when they happen.

    As for mental illness vs medical disorder. I don't think it matters where the difference between male and female brains comes from, for most people there is something biological in the brain identifying is as male or female. Any time you deal with a biological system you're going to get individuals where the system doesn't work right.

    The evidence that it is an actual characteristic of the brain is if it were a mental illness you'd expect most kids to "grow out of it", or adults to eventually fully identify with their birth gender. But people who are transgender generally stay transgender. Which is what you'd expect if the brain had a fundamental gender identity that mismatches their body.

    Pianist,
    You're just projecting your strawmen arguments onto them. You have no evidence this is true.

  • TwelveInchPianist||

    "You're just projecting your strawmen arguments onto them. You have no evidence this is true."

    No, I'm just paraphrasing Ray Blanchard's work.

  • aluchko||

    I hadn't heard of Blanchard's work before, it sounds like it's not completely out there but I feel like there's a fairly large segment of the trans community it doesn't cover.

  • PoxOnBothYourHouses||

    aluchko: "But people who are transgender generally stay transgender. "

    "Generally"....

    The proportion who "desist" as they say, is not known but may be large.

  • Lee Moore||

    The evidence that it is an actual characteristic of the brain is if it were a mental illness you'd expect most kids to "grow out of it", or adults to eventually fully identify with their birth gender. But people who are transgender generally stay transgender. Which is what you'd expect if the brain had a fundamental gender identity that mismatches their body.

    Yes and no. But mostly no. What we have is a shifting defintion of "transgender." The vast majority of people who exhibit enough transgender behavior to be labelled as transgender do not persist and revert to the gender corresonding to their biological sex after a while. But there is a subset of people who do exhibit intensely transgender behavior and they have a much higher probability of persisting. Much dishonest stuff has been written by transgender activists about "the myth of desistance." This is neatly debunked here :

    http://www.thepublicdiscourse.com/2018/07/21972/

    The truth is that the likelihood of persistence is strongly correlated with the intensity of early gender dysphoria. Mild cases - the vast majority - generally don't persist. The social consequences are reasonably straightforward. Humoring mild early dysphoria is likely to be harmful and alienating, since it will delay reversion to reality.

    But severe cases are likely to persist and are likely to cause a great deal of suffering.

  • TwelveInchPianist||

    And not everybody who transitions has an intersex brain. Some folks, say effeminate gay men, transition because they are simply more comfortable as women. Others transition because they are enamored with the idea of themselves as women. And I'm sure that there are plenty of other reasons as well.

  • damikesc||

    It is not anybody's job to humor them in their delusions.

  • PoxOnBothYourHouses||

    Their sense of being in the "wrong" body isn't a "delusion" per se, but more of an overwhelming orientation. They are typically perfectly rational.

    Their claims to actually /be /of the other sex is another matter, and commonly rely on mixed or dubious ideas.

    Yes, I'll give an example. Trans people argue that their sex-sense is basically inborn -- and I don't know that they aren't right. But ever more (I'm surprised at how often I see this) they claim a straight man or a lesbian who will not countenance having sex with a male-to-female transsexual -- even one with a penis -- or a straight woman or gay man who will not have sex with a FTM trans person, is merely being transphobic and should get over it.

  • Zoe Brain||

    "Intersex births about about 2 out of every 100,000"

    Nope. Technically 1 in 60, not 1 in 50,000. 1 in 300 men aren't 46,XY, 1 in 600 women aren't 46,XX. Most Intersex situations like these are not obvious.

    There are some Intersex syndromes that are 1 in 100,000 or so though. The ones where the apparent sex at birth reverses later in life, due to 5ARD, 17BHSD, 3 BHSD or some other, rarer genetic anomalies.

    These cause immense legal problems, as many jurisdictions require proof of medical treatment in order to correct identity documents. Trust me on that. Obviously there are social issues too.

    Psychological ones as well if the neuro anatomy matches appearance at birth which it does about 1 time in 3. Then it's something of a medical emergency to have treatment to halt and reverse as much as possible the natural change.

    See RE: SALLY (SPECIAL MEDICAL PROCEDURE) [2010] FamCA 237 for one example.
    http://www.austlii.edu.au/cgi-.....0/237.html

  • mad_kalak||

    Apparently, it depends on how you define "intersex." I'm relying on an article from the Journal of Sex Research. Apparently, when you discount otherwise normal development but genetic abnormalities, or people who are unambiguously female, but do have physical development, the figure is .018% of people. "This figure of 0.018% suggests that there are currently about 50,000 true intersexuals living in the United States. These individuals are of course entitled to the same expert care and consideration that all patients deserve. Nothing is gained, however, by pretending that there are 5,000,000 such individuals"

    http://www.leonardsax.com/how-.....-sterling/

  • Zoe Brain||

    https://ihra.org.au/16601/intersex-numbers/

    In the absence of better internationally-accepted data, Intersex Human Rights Australia cites a systematic review of medical literature in the American Journal of Human Biology by Melanie Blackless, Anne Fausto-Sterling and others showing intersex to be around 1.7% of all live births.

    This estimate relates to any "individual who deviates from the Platonic ideal of physical dimorphism at the chromosomal, genital, gonadal, or hormonal levels" and thus it encapsulates the entire population of people who are stigmatised – or risk stigmatisation – due to innate sex characteristics.

  • Zoe Brain||

    From Sax's paper

    "Anne Fausto-Sterling's suggestion that the prevalence of intersex might be as high as 1.7% has attracted wide attention in both the scholarly press and the popular media. Many reviewers are not aware that this figure includes conditions which most clinicians do not recognize as intersex, such as Klinefelter syndrome [47,XXY], Turner syndrome [45,X], and late-onset adrenal hyperplasia. If the term intersex is to retain any meaning, the term should be restricted to those conditions in which chromosomal sex is inconsistent with phenotypic sex, or in which the phenotype is not classifiable as either male or female. Applying this more precise definition, the true prevalence of intersex is seen to be about 0.018%, almost 100 times lower than Fausto-Sterling's estimate of 1.7%."

    Sax's definition excludes 47,XXY fathers, 47,XXY mothers, 46,XX people with male genitalia due to adrenal hyperplasia etc. Contrary to his statement, most clinicians recognise these as "differences of sexual development" DSD - otherwise known as Intersex.

  • Lee Moore||

    Sax's defintiion is inaccurate, but only to a trivial extent. Since in very rare cases crossing over can transfer the SRY from the Y chromosome to the X chromosome, an XY genotype not determinative of sex if the SRY gene has switched horses. But such genetic variants are back to the coin landing on edge levels of probability, and have no effect on the validity, or lack of it, of Fausto-Sterlings 1.7% intersex estimate.

    Klinefelder XXY males are more common, but Klinefelder involves no ambiguity about genetic or phenotypic sex. The extra X disrupts development of male sexual organs, to some extent, but it doesn't create a female.

    You also ignore Sax's discussion of late onset congenital adrenal hyperplasia, which he says accounts for fully 88% of Fausto-Sterling's "intersex" designations, and which cannot reasonably be described as an intersex condition at all, for the reaons that he explains.

  • phoqueue||

    The real world disagrees with you.

    Have we now decided that "sex" and "gender" are synonyms, rendering "gender" (once thought to be a useful concept) superfluous?

  • Mesoman||

    Until recently, "gender" was a linguistic term. That it has been hijacked by those who find that the sexual identity of someone is too constraining is all too typical.

  • Lee Moore||

    The real world disagrees with you. It's amazing how much fake outrage "conservatives" express over people that pose absolutely no threat to you.

    I think the "outrage" is not at the few real unfortunate folk whose brain is telling them they're in the wrong body, but is mostly annoyance at the insistence by activists that innocent passers-by must acquiesce in the activists' obvious falsehoods. (I see the Colorade baker is being hauled over the coals again, this time for failing to kowtow to a transgender activist.)

    The real world - ie actual biology - confirms that virtully all the folk "presenting" as transgender are unambiguously the sex they'd prefer not to be. The fact that there may be a tiny minority of the tiny minority who are genuinely intersex, from a biological rather than rhetorical perspective, does not mean that sex is a matter of opinion. It's a matter of fact with one or two very very rare ambiguities. (The rhetorical device of referring to the sex "assigned" at birth - or sometimes gender; activists never like to stick to a consistent defintion of terms for too long - involves a pretence that the doctor jots down the sex of a new born arbitrarily; as if a vet delivering a calf might choose the species on a whim.)

  • Josh R||

    Lee,

    I think you are assuming that biological sex equals gender. Thinking otherwise doesn't strike me as an obvious falsehood. Additionally, I wouldn't characterize a person who serves the general public as an innocent bystander.

  • Lee Moore||

    I'm certainly not assuming that biological sex equals gender. It's precisely one of my complaints that the activists themselves deliberately choose to use the terms inconsistently.

    See the title of this wikipedia article :

    https://en.wikipedia.org/wiki/Sex_assignment

    They use the word "sex' assigment - an expression which is commonly used by activists to pretend that there's something arbitrary about sex determination, and something fluid about sex.

    But then the first sentence reveals that sometimes sex assignment is called gender assigment - just to confirm my point that they never like to present a stationary target.

    I'm sure we've discussed serving the general public ad nauseam before, so I'll limit myself to repeating that you're again assuming your conclusion. People who do not choose to serve everyone have not agreed to serve everyone just because you say so.

  • Josh R||

    At birth, we are assigning both the sex and gender of the baby. The reason for the phrase "sex assignment" is not because sex is fluid, but rather because we sometimes get it wrong. There are objectively biological boys (girls) that are incorrectly assigned as girls (boys). The reason for the phrase "gender assignment" is the claim that gender cannot be determined by an external objective measurement.

    At some level, we are both assuming our conclusions. Namely, you assume that if you don't agree to serve everyone, even though you agree to serve the general public, you are an innocent bystander. I assume that if you agree to serve the general public, even though you don't agree to serve everyone, you aren't an innocent bystander.

  • Lee Moore||

    "Assignment" is a recent conceit, designed to create the impression that sex is assigned rather than determined, that is to say it is an allotment or allocation rather than an observation. Of course a determination or observation may be wrong, and may be corrected by further and better observations.

    If you observed a bottle of some chemical in a laboratory, did a couple of tests, and reached the conclusion that it was very likely hydrochloric acid, if you said that you had "determined it was hydrochloric acid" your fellow lab technicians would nod and go about their business. If you said you had "assigned it as hydrochloric acid" they would think you were an idiot.

  • Lee Moore||

    you assume that if you don't agree to serve everyone, even though you agree to serve the general public, you are an innocent bystander.

    No I'm assuming that nobody agrees to serve the general public (by which I assume you mean "anybody" who walks in) unless they say so. You keep pretending that people who run shops have somehow agreed to serve anybody who walks in. But they haven't - or at least I've never seen any case where one has. Ol Jack Phillips' reluctance to serve people with cakes that offend his religious sensibiities is an obvious case in point. Folks like you keep insisting that he's agreed to serve the general public when the man himself says he hasn't. How come you know better than him what he's agreed to do ? And if you're that confident you'll be able to point us to something on his website or over the door of his shop that confirms your opinion.

  • Josh R||

    If "sex assignment" is being used to imply that sex is not determined, then I agree that is an obvious falsehood. But, I don't believe that is the argument. The argument is gender is not the same as sex, and people can have a gender that doesn't match their sex.

  • Josh R||

    Serving the general public does not mean you will serve anyone who requests service. Instead it means you offer a service that the general public seeks.

  • Lee Moore||

    In what sense then are you guilty of something, if you haven't advertised that you are willing to serve anyone who requests service, and someone who you don't wish to serve cuts up rough, to the extent of trying to sue you out of your livelihood ?

    Does the same principle apply to attractive young women who say no to men they don't want to go out with ? Are they guilty of something - having long legs and wearing lipstick in public, perhaps ?

  • Josh R||

    You are guilty of violating anti-discrimination law.

  • Lee Moore||

    Hmm. So if you're using "innocent" and "guilty" in a strictly legal sense, then presumably all bystanders are innocent until proven guilty in court. The Colorado baker, for instance, must be an innocent bystander, right ?

  • Josh R||

    He's an innocent bystander only because the Colorado commission showed animus towards his religion. And perhaps he is an innocent bystander if the Court later on holds he has a Freedom of Speech right not to make a custom cake for a same-sex wedding.

    But as I understand your argument, you are saying that as general matter businesses that provide services that the general public desires are innocent if they refuse to serve someone. I do not agree.

  • Lee Moore||

    I probably misunderstood your position, possibly mistaking you for another poster on more ancient threads. This other poster dementedly insists that anyone who opens a shop has - merely by opening a shop - agreed to serve anyone who walks in. Consequently, when he declines to serve someone for whatever reason he is going back on his promise and is therefore morally in the wrong. Consequently he has no business complaining when the government punishes him for breaking his promise. The obvious refutation is that someone who has opened a shop has not agreed to serve anyone who walks in (except in the so rare that I've never heard of it case that he's actually announced that he'll serve anyone) and so the whole argument about moral desert collapses in a heap.

  • Lee Moore||

    But I now appreciate that you are using "innocent" in a wholly legal sense. As it happens I also disagree with your summary of the legal position - "you are saying that as general matter businesses that provide services that the general public desires are innocent if they refuse to serve someone. I do not agree."

    As a general matter, the great majority of such refusals are perfectly legal in any State. And even when a shopkeeper declines someone's custom in circumstances where some public accommodation law may be relevant, he remains innocent until proven guilty. So, no, Mr Phillips is an innocent bystander because he hasn't been convicted of anything. not "only because" this or that. And "perhaps he is an innocent bystander if the Court later on holds he has a Freedom of Speech right not to make a custom cake for a same-sex wedding" has it backwards. He's not "guilty unless a court later finds some legal excuse". He's innocent until the court fnds he has no excuse.

  • Seamus||

    Even if they don't pose a threat to me, they pose a threat to at least one Muslim prisoner.

  • damikesc||

    The real world disagrees with you. It's amazing how much fake outrage "conservatives" express over people that pose absolutely no threat to you.

    Yet, straight people won't consider trans for dating or sex. 88% or so said they will not even consider a trans.

    So, the real world has expressly said they don't buy it either.

  • TwelveInchPianist||

    "One does not get to declare ones own sex."

    Sure, one gets to declare one's own sex. But one also gets to declare the sex of the person digging through the folds of one's scrotum looking for contraband. Therein lies the problem.

  • FlameCCT||

    It will be interesting to see how the government tries to explain why they reject medical science and physical anatomy to violate a religious tenet while at the same time they provide meals that do not violate the same religious tenet.

  • gormadoc||

    I don't think it's the same religious tenet. Otherwise I'd be concerned about what they're putting in the meals and what the inmates are doing with/to them.

  • NToJ||

    I think the state will say that it's been placed between a rock and a hard place by competing accommodation obligations that happen to intersect in this interesting case. Not sure what the food has to do with anything. I doubt they're going to challenge the inmate's sincerely held belief.

  • Lee Moore||

    NToJ : I think the state will say that it's been placed between a rock and a hard place by competing accommodation obligations that happen to intersect in this interesting case

    If it boiled down to "competing accommodation obligations" then it would be an easy case to resolve. The obligation to respect the prisoner concerns the State's treatment of someone who has no choice about the terms of his interactions with the State, whereas the obligation to the guard concerns someone who has a free choice, and concerns the guard's interaction not with the State but, as a state employee with a private individual.

    Employment may often, either explicitly or implicitly, involve an acceptance that you will not always fully exercise your own constitutional rights while on the job.

  • Josh R||

    There is a Title VII statutory right not to be discriminated against on account of sex.

  • NToJ||

    The prisoner has minimized rights as well because of his voluntary engagement with a course of action that led him to prison. However, I generally agree with you that where these two accommodations meet, the prisoner is going to prevail.

  • PoxOnBothYourHouses||

    NToJ: "I generally agree with you that where these two accommodations meet, the prisoner is going to prevail."

    Apparently not in correctional institutions in Wisconsin.

    But if you meet the Warden in a quiet room and promise not to reveal what he says, he'd likely tell you "We don't need any of the grief we'd get from the transgenders." They're kicking the the ball down the road, or up the stairs. Let a judge have to be in the outrage spotlight.

  • EscherEnigma||

    Different religious tenets, and different levels of worry to accommodate them. In the case of Kosher meals, it's a regular enough accommodation that it's no burden to accommodate. In the case of "I don't want that guard in the room when I'm searched", the court may rule that his religious claim is not sufficient to dictate the prison's staffing schedule.

  • Rigelsen||

    Huh? It's already common practice, including in this very prison, to accommodate this religious tenet. The prison/state is simply arguing that because the guard says they are gender opposite of their physically expressed sex, it should be sufficient accommodation in this case.

    This suggests that prisons can just invest in some gender fluid guards who can decide on a day to day, or even hour to hour, basis what gender they are to accommodate the strip search schedule.

  • EscherEnigma||

    It's common practice to accommodate demands for kosher meals, yes.

    Demands to only have cis-male guards be present during a strip search? Only incidentally, not intentionally.

    This suggests that prisons can just invest in some gender fluid guards who can decide on a day to day, or even hour to hour, basis what gender they are to accommodate the strip search schedule.


    The law recognizes trans folk, and in many states allow them to legally transition to their preferred gender. This is an arduous process in any state and not something that can be done lightly or on a whim, thus minimizing the potential for abuse.. This does not apply to gender-fluid folk who have no such legal recognition. So no.

  • FlameCCT||

    It is not just any guard, it is a female claiming to be male.

  • OtisAH||

    No, he is a male.

  • Lee Moore||

    No, she's female.

    So there.

  • apedad||

    This only comes down to the law about whether the guard is a man or woman (not the inmate's religious preferences).

    In 2017, a unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit (which covers Wisconsin), ruled that a school officials had to allow a transgender (F → M) high school student to use the boys bathroom.

    https://www.usatoday.com/story/ news/nation-now/2017/05/31/transgender-student -wisconsin-wins-appeal /357474001/ (spaces added)

    I'm thinking the prison officials have to follow that precedent and therefore should prevail.

    Otherwise they could face a lawsuit from the guard.

  • lucia_l||

    I don't think it only comes down to that. That view would say the law can over ride a person's religious belief that "males and females are identified and determined by the sex that Allah (i.e., the Creator) created them with at birth." … That would, in and of itself impose a substantial burden on the inmates expressing his own religious belief.

    The precedent you link to does not involve any religious belief. Only a school district speculated harm to boys who will share the bathroom with the transgender student.

    I have no doubt the prison is in a position where they risk a suit from the guard for one decision and the inmate for the other. But there are lots of guards and plenty of inmates. Presumably the transgender one can continue to strip search other inmates, continue with other duties and carry out the job generally. I realize they might sue, but I can't see much harm to their not being allowed to strip search this one particular inmate who happens to have a religious objection to it.

  • VinniUSMC||

    Two beliefs in imaginary things enter, only 1 leaves.

  • Life of Brian||

    Unfortunately that parallel breaks down rather quickly -- only one of those two is actually known to be imaginary.

  • Bob from Ohio||

    Yes, the transgender one.

  • nonzenze||

    Never figured you were a big Allah booster Bob :-/

  • Bob from Ohio||

    Allah is just Arabic for God.

    Muslims are (like Christians) members in a heretical Jewish sect

  • Krayt||

    ===Two beliefs in imaginary things enter, only 1 leaves.===

    If only The People had set an unambiguous prioritization of these things.

  • Krayt||

    I was under the impression the SC had ruled you had a right not to have to expose yourself to, or be exposed to by, a person of the opposite gender, that being tje shocking nature of the exposed junk.

    Is this basic right now cast to the wind, along with the religious counterpart?

    The angry, gun-backed perfecting of Mankind continues...

  • apedad||

    That's why I said the key issue is whether the guard is a man or woman.

    If the law considers him a man, then the SC ruling you referenced doesn't apply.

  • Life of Brian||

    If the law considers the guard to actually be a man simply based on how the guard "identifies," just think of the possibilities:

    - "identifying" as indigent and refusing to pay income taxes
    - "identifying" as single and marrying a second (or third!) spouse
    - "identifying" as a senior citizen and demanding Medicare, Social Security, and Cracker Barrel discounts

    What fun awaits.

  • An Owl Named Dur||

    The inmate should simply "identify" as a guard. No search necessary. Problem solved. Plus, he gets to walk out the door and go home at the end of the day.

  • Rossami||

    That's not the issue at all, apedad. Regardless of whether the law considers him a man, the plaintiff, in accordance with his own religious beliefs, clearly does not. The plaintiff's religious beliefs don't have to make sense to you, don't have to be consistent with the beliefs of the mainstream community and don't even have to be consistent with the beliefs of other Muslims. The test for his religious beliefs are whether they are sincerely held. Full stop. Other than whether the beliefs are sincerely held, I don't get to evaluate your religious beliefs and you don't get to evaluate his.

  • nonzenze||

    Roassami, that's only the first prong. To win, the plaintiff has to jump two more hurdles:

    (1) The substantial burden test.
    (2) The compelling government interest test

  • MatthewSlyfield||

    (2) I can see as being a large burden. How can the government have a compelling interest in having the plaintiff strip searched by a particular guard?

  • MatthewSlyfield||

    can't. Need edit function.

  • NToJ||

    I see it as a pretty significant hurdle. The government will have to show that requiring one of the all of the other guards to perform the search is a substantial burden, and that the government has a compelling interest in having this particular guard do it. Why not some other guard?

  • MatthewSlyfield||

    @NToJ,

    The significant burden issue and compelling interest issue is being put forward by nonzenze as a hurdle for the plaintiff, not for the government.

  • NToJ||

    I see that now, sorry. Plaintiff has already met (at least as a threshold matter) its burden on both.

  • nonzenze||

    Maybe it can't. If it was a small prison with only a dozen guards and 1-2 on duty at a time, then maybe it can.

    Kind of depends on the facts.

  • Rossami||

    Good afternoon, nonzenze. I completely agree. But that part of the process wasn't necessary for the rebuttal to apedad who was still trying to argue based on fundamental misunderstandings of the first prong.

  • phattyboombatty||

    The law does not consider the guard to be a man. It does not consider any transgender person to be the opposite sex. What the law says is that certain accommodations have to be made for transgender persons if there is no harm as a result.

    If the law considered this guard to be a man, then he could be summarily discriminated against by anybody because men are open season.

  • Krayt||

    ===If the law considers him a man, then the SC ruling you referenced doesn't apply.===

    Except the shocking offense is the dong, not the label on the body with the dong.

    "Don't worry about exposing yourself to a man, ladies. That person with a dong is a woman."

    I'd be more inclined to accept this as a reasoned change in the law if it were considered by elected legislators rather than an unelected judge doing the legislature's job -- considering the changing values of society and changing the law accordingly.

    The lawmaking power of Congress is starting to resemble the Guiness record for shortet will, "All to wife."

    Congress: "All lawmaking to executive and judicial branches."

  • TwelveInchPianist||

    "This only comes down to the law about whether the guard is a man or woman (not the inmate's religious preferences)."

    Why should it matter whether or not the guard is legally a man or a woman? The inmate has a sincere religious belief against allowing this particular guard to search him. There are other guards who can search him. Case closed.

  • nonzenze||

    If only the law had more components than just the sincere belief . . .

  • aluchko||

    What if it were a White Supremacist (whose beliefs were based on religion) who objected to a black or Jewish guard?

    I'm honestly not sure how this should go. Though it does strike me that being a transgender guard must be an incredibly difficult work environment.

  • TwelveInchPianist||

    "What if it were a White Supremacist (whose beliefs were based on religion) who objected to a black or Jewish guard?"

    That might be a harder case, given that the government might have a compelling interest in not discriminating based on the race or religion of prison guards. But the government already engages in sex discrimination wrt go gets to search who. Does it have a compelling interest in treating male-identifying biological females the same as male-identifying biological males when it comes to strip-searching inmates? I hope not. I would think that one's right to identify as the sex of one's choosing ends where the other person's genitals begin.

  • EscherEnigma||

    I think "we shouldn't have to worry about what's in our men's pants" is a legitimate concern.

    You're basically saying that an employer should be *required* to ask, and record, what's between their employees legs. That doesn't sound reasonable.

  • TwelveInchPianist||

    "You're basically saying that an employer should be *required* to ask, and record, what's between their employees legs. That doesn't sound reasonable."

    The alternative, at least based on some theories of transgenderism, is employers should be required to ask, and record, what their employees' brain chemistry is wrt gender. That sounds equally unreasonable.

    But what I'm saying is that, if we find it reasonable to allow inmates to prevent members of the opposite sex from strip-searching them, we ought to go by how the inmates view the guards, and not how the guards view themselves.

  • EscherEnigma||

    we ought to go by how the inmates view the guards, and not how the guards view themselves

    Hrm… nah, that becomes trivially unworkable given the lack of privacy. Prisoners X and Y are both set to be searched, Prisoner X thinks Guard A is male and Guard B is female, and prisoner Y thinks it's reversed. So now the prison has to not only worry about the legal sex of it's employees, but individual inmates opinions of individual guards.

    And it's not just about the guards at that point, it's also about other inmates. Prisoner X and demand that Prisoner Z not be housed in the same wing using the same showers if Prisoner X "views" Prisoner Z as a woman.

  • NToJ||

    "Otherwise they could face a lawsuit from the guard."

    Not so sure, because it's a reasonable accommodation issue. There's a reasonable accommodation in which both sides win. The prison treats the guard like a man, but just doesn't allow that guard to strip-search Muslims. Life goes on. The prison isn't going to lose a lawsuit to the guard by not forcing the guard to perform constitutionally prohibited searches.

  • Rigelsen||

    Indeed, why would a guard have any compelling interest in being able to strip search a particular prisoner? Or being able to strip search at all, unless that were a requirement for bonuses or promotions?

  • NToJ||

    It's not the guard's compelling interest at stake. It's the state's.

  • Lee Moore||

    I read the 7th Circuit decision. It's truly woeful.

    Among many other absurdities, they managed to pretend that "sex' was an ambiguous term, which might mean something else if the modifier "biological" was not added :

    Also absent from the statute is the term "biological," which the School District maintains is a necessary modifier.

    No "gender" in sight here. The pretence is that there's a kind of "sex' that isn't biological.

    Another whopper was citing Scalia saying - I paraphrase - "the law as written may go beyond the mischief that the legislators intended to solve - what matters is what they wrote" - and then arguing that it was precedent for precisely the opposite concept - that when confronted with the word "sex" in a statute Scalia's comment was license to roam widely in the judical imaginatinon for what wider concept the legislators might have had in mind.

  • MatthewSlyfield||

    "The pretence is that there's a kind of "sex' that isn't biological."

    Well, there's the kind of sex that's an action rather than an attribute of an organism....

  • TwelveInchPianist||

    Sure. There's the kind of sex which is an attribute of an organism, and the kind to which one can attribute an orgasm...

  • Seamus||

    Otherwise they could face a lawsuit from the guard.

    Transgender women are now likely argue that they have a legal entitlement to handle the junk of non-consenting Muslim prisoners? We live in a strange world.

  • Martinned||

    Not legally relevant, but it's my understanding that this interpretation of islamic doctrine is not self-evident. Apparently in Iran they're much less fussed about gender reassignment than about homosexuality, viewing the former as an illness that can be treated like any other. Of course, that's Shi'a islam, but still.

  • AmosArch||

    The funny thing was some blowback awhile back to keep transgenderism in the DSM by of all people the transgender lobby. The reasoning was that taking it off would mean an end to insurance payouts for certain treatments. Too lazy to look up how it is now. They probably consider it to be in a Schroedinger superposition when it comes to the question of being an illness nowadays.

  • A nerdy Fred||

    The activists pushed to have it in the DSM under the name "gender dysphoria" so that trans people could get insurance without being accused of a "disorder" (it used to be "gender identity disorder").

  • aluchko||

    I'm not sure how common it is but I actually heard the Iranian government considered gender reassignment to be a treatment for homosexuality.

    But I think it's relevant to the extent that there's no such thing as an incorrect religious interpretation. There's just a bunch of people who adopt a label and the beliefs they associate with their own label.

  • Seamus||

    The government isn't supposed to get into the business of judging whether a particular belief is "really" part of a given religion's teachings. They're only supposed to judge whether it's a sincerely held religious belief of the individual asserting it.

  • Michael Masinter||

    In a different context, see the seventh circuit's decision in Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) and in particular the contrasting views of Judge Easterbrook for the majority and then Judge Posner concurring and dissenting on the burden of cross sex nudity exposure. Query -- how difficult in practice would it be to accommodate both the interests of prisoner and the employee?

  • bernard11||

    how difficult in practice would it be to accommodate both the interests of prisoner and the employee?

    Sounds like it would be trivial.

  • EscherEnigma||

    Depends on how much of his wishes he gets. If you read the order, he wants the guard to not even be in the same room it observing him while he's naked.

    That would mean scheduling the one guard around this one prisoner and that prisoner's schedule. But impossible, but not trivial either.

    If the court for for a lesser "he can request a different guard search him, but can't demand he leave the room", than the issues are much less pronounced as you never want a guard to be alone anyway, so there will always be another guard around.

    And of course, there is the problem that this prisoner is demanding that the prison ignore the guard's legal sex (in Wisconsin you can even get an amended birth certificate). He is arguing that because of *his* faith, the prison should not be allowed to treat a guard as their legal sex. This part is almost certainly too much of an accommodation.

  • Rigelsen||

    Why not trivial to have this guard step out of the room? Strip searches are never conducted out in the open, at least in modern day American prisons.

  • NToJ||

    "He is arguing that because of *his* faith, the prison should not be allowed to treat a guard as their legal sex."

    To the extent the prisoner is demanding that the prison issue a certificate that says the guard is a female and can never be a man, sure. But if "allowed to treat a guard as their legal sex" is conditioned by "in so far as that person is watching me get strip-searched" it's a pretty trivial accommodation.

  • EscherEnigma||

    But if "allowed to treat a guard as their legal sex" is conditioned by "in so far as that person is watching me get strip-searched" it's a pretty trivial accommodation.
    As I said, that would be an easier-to-swallow accommodation. But it is not what the prisoner is asking for.

  • ||

    This is why transgenderism should never be accepted by society.

  • apedad||

    No, this is why religion should never be accepted by society.

  • gormadoc||

    Because a dude didn't want somebody looking at his wee-wee? Seems overkill to me.

  • nonzenze||

    I mean, in general we afford most people the right to keep their bits private (or not, as they wish). In prison, society understand there are other government interests . . .

    And while prison does not obviate all of a person's rights under the law, it surely removes a great many of them.

  • gormadoc||

    Relatively harmless religious rights should not be obviated. All it takes is for the government to have somebody else perform the search. His objection wasn't to the strip search but to the female conducting it.

  • EscherEnigma||

    He's a prisoner. Wherever or not he'll have "somebody looking at his wee-wee" is settled. At question is whether or not he can use his religious beliefs to dictate that a specific prison guard can be in the room while he is naked.

  • gormadoc||

    "No, this is why religion should never be accepted by society."

    This is what I'm responding to. It's a ridiculous reaction to an innocuous. The question of whether he can avoid being searched by a female was not was I was responding to, but to the stupid claim that nobody should care about anyone's beliefs.

  • phattyboombatty||

    I'm sure there are many people that would be uncomfortable being strip searched by somebody of the opposite sex independent of any religious beliefs. Granted, it would be much more likely that a female would object to a male doing the strip-searching and not the other way around.

    In fact, this case would be way more interesting if it was a female prisoner being strip-searched by a 6'4" male with a beard and huge bulge in his pants that happened to identify as a woman. I guess if the female prisoner didn't have any religious beliefs she would just have to suck it up and take it.

  • NToJ||

    "...be uncomfortable being strip searched by somebody of the opposite sex independent of any religious beliefs."

    I would be uncomfortable in prison generally, and not for religious reasons.

  • Seamus||

    she would just have to suck it up and take it

    I can only hope you didn't choose those words with full knowledge of their implications.

  • AmosArch||

    I agree, the idea that prog cult idea that someone magically changed into a male just because they said so while still literally having their boobs and vajayjay is silly irrational belief that has no place in modern society.

  • ||

    It's funny that the Democrat Party describes itself as the "party of science."

  • DjDiverDan||

    I would have thought that was made clear when Gore Vidal published Myra Breckenridge.

  • darkknight9||

    I (thankfully enough) know very little about the 'strip search area' of a prison and how it operates procedurally but if its an area that doesn't allow for privacy where people are all checked in the same room, could one assume that the inmate is going to be seen even if that particular guard isn't the one doing his actual searching?

  • Josh R||

    I suspect the case law resolving conflicts between Title VII and RLUIPA/RFRA is sparse (or else, Eugene would have provided citations). A Google search unearthed one recent case from the Sixth Circuit where a funeral director could not use RFRA as a defense for a Title VII violation when he fired an employee because she was transgender.

  • Mesoman||

    The real problem is that we need an RFRA at all. Had the courts not neutered the second clause of the First Amendment (religious exercise), no law would have been needed, and no arguing about the law would happen.

  • Josh R||

    Had the courts ruled as you wished, we would still have a conflict between the Free Exercise Clause and Title VII.

  • Sarcastr0||

    It's really fun seeing the comments about these edge cases in figuring out gender.

    Some people getting into the weeds, some declaring this hard question means we must shut down everything, and a bunch just triggered by the idea of gender not being binary.

  • Smooth Like a Rhapsody||

    ..."triggered"...?
    If the guard commits a murder while off work, what prison is the guard sent to?
    Except for a vanishingly small number of cases--none of which ever make the paper--gender IS binary--at least for the purposes mentioned here.

  • Sarcastr0||

    As NToJ noted, making a gender determination doesn't actually matter here at all. That's part of why the angy 'I'm offended on behalf of biology' comments are so entertaining!

    This application is an example of how it is quite a nuanced undertaking to create the appropriate contours when two different accomidations are in conflict. Part of the fun of jurisprudence.

  • Sarcastr0||

    Or, as Libertarian Jim put it 'what's a wackadoo Lib to do?'

  • Smooth Like a Rhapsody||

    Just to be crystal clear: you are equating the idea of "accommodating" being modest around people of the opposite sex with "accommodating" ...whatever grievance du jour that you think you're accommodating in the other instance.

  • Sarcastr0||

    Yeah, I equate accomidating people's gender issues with accomidating people's modesty issues.

    I don't think you want to give the state the power to decide what's an actual thing to accomidate and what's merely a 'grievance du jour.'

    If it's not too much trouble, I'd hope the state (and you) would do what you can.

  • MatthewSlyfield||

    "I don't think you want to give the state the power to decide what's an actual thing to accomidate and what's merely a 'grievance du jour.'"

    That's completely unavoidable when it's the government doing the accommodating, since even the government doesn't have the resources to accommodate everything.

  • Sarcastr0||

    Be that as it may, the test is reasonability, not sincerity or validity or resources.

  • MatthewSlyfield||

    "Be that as it may, the test is reasonability, not sincerity or validity or resources."

    Actually, resource availability would be a legitimate factor in determining reasonability.

  • swood1000||

    Be that as it may, the test is reasonability, not sincerity or validity or resources.

    What's an example of being reasonable but not valid, or valid but not reasonable (where resources is not the principal issue)?

  • NToJ||

    Unless this is the first time this prisoner was strip searched, it has the resources to put another guard on the job. This is a trivial accommodation.

  • EscherEnigma||

    Depends on how much of the prisoner's demands are granted.

    On the "trivial to accommodate" side is the specific guard stand aside another guard do the search.

    Moving up to "unreasonable" you have scheduling that specific guard so they will never ben a place where the possibility of seeing the prisoner naked exists (so not being assigned to any areas where the guard might have to enter a bathroom or shower the prisoner has access to).

    Moving up to "not going to happen" is the prisoner's demand that the prison not recognize the guard as a man and that the prisoner never be strip-searched at all†.

    In short, not having this specific guard strip-search him is the least of the accommodations he is seeking, but it is not the extent of the accommodations he is seeking.
    ________
    †The judge already threw out that demand and said he couldn't argue it.

  • John Rohan||

    Actually sex is always binary, even among intersex people.

    Not all intersex people attempt to have children, but the ones who have had children have done so either in the male or female role. No one has ever been able to change their role, or do both.

  • Zoe Brain||

    The child didn't make it to term, but the example of Petra Henderson, who fathered three children, then became pregnant due to a botched hernia operation causing auto fertilisation, is one example where persistent Mullerian duct syndrome can cause this.

  • John Rohan||

    I several searches for Petra Henderson. I can't find any source that says this person had any children at all.

  • Lee Moore||

    I found this, which refers to one child :

    https://zagria.blogspot.com/2013/11/
    petra-henderson.html#.W3iOXn4nb3B

    Given the nature of the site, if Peter / Petra had become pregnant after fathering sons I'd have expected them to mention it. No doubt Zoe has more authoritative sources.

  • Life of Brian||

    It's even more fun seeing the efforts to reframe this as being about gender when the plaintiff's claims explicitly concern biological sex.

  • Bob from Ohio||

    Gender is just a polite word for biological sex.

    The NewSpeak left is attempting to redefine it as something as changeable as clothing.

  • AmosArch||

    Gender was a term coopted from vocabulary terminology for purely political purposes. Since it was obvious nonsense to say that you could mystically shift from a man or woman. They invented another term that stood for the sex that you 'feel like' problem solved. Then they slowly legislated and tweaked the rules until 'gender' stood as a synonym and then legally replaced the term sex. That way they could run to the idea that gender means 'whatever you feel like' when confronted by someone with a scientific argument who wouldn't back down at the name calling. Then go back to demanding that everybody use it in place of the word sex after they left.

  • NToJ||

    "It's even more fun seeing the efforts to reframe this as being about gender..."

    "Gender is just a polite word for biological sex."

    Jeez you walked right into that one.

  • Seamus||

    The NewSpeak left is attempting to redefine it as something as changeable as clothing.

    That's why we should refuse to use the word except with reference to grammar, and instead insist that we're only talking about sex, which is biological.

  • TwelveInchPianist||

    "It's really fun seeing the comments about these edge cases in figuring out gender."

    Edge cases? The guy is lucky he can articulate a RFRA claim. Apparently male and female inmate inmates who object to being searched by the opposite sex for the normal reasons that many people object to being strip-searched by the opposite sex are just SOOL. That certainly sucks.

  • Sarcastr0||

    Edge in that how often in the grand scheme does it come up that you have a transgender prison guard?

    Not that it should be ignored, but all this gender stuff it pretty rare cases.

  • ||

    I am acquainted with one, actually, via volunteer work for a non-profit. And not the one in this case!

    (Also F --> M, fwiw.)

    That said, I share your speculation that it is not-too-common. I can ask him next time I run into him, though.

  • NToJ||

    He can't articulate an RFRA claim. Its' an RLUIPA claim.

    "Apparently male and female inmate inmates who object to being searched by the opposite sex for the normal reasons that many people object to being strip-searched by the opposite sex are just SOOL."

    Not exactly. He objected to the strip-search by the female guard, and the female guard stepped aside. He was instead searched by a male guard. When he wrote the prison to demand they never have the female guard search him, they rejected it and he brought suit. His legal claim was against "the institution's decision to treat Buhle as a male". Specifically, he contended that the prison violated his right "to not have the female officer's issue of claiming to be a male trump" his "right to practice Islam by not having her strip search him."

    He might still have an 8A claim based on a future strip search by a female guard, irrespective of his religious beliefs. The court didn't get there because he was not, in fact, strip-searched by a female guard.

  • TwelveInchPianist||

    Fair enough.

  • Libertarian Jim||

    A Muslim vs Non Conforming Gender, what is a wackadoo Lib to do? Is there some kind of Oppression Scale they can refer to in order to determine who to support?

  • croaker||

    Don't do the crime if you can't do the time.

    No sympathy.

  • gormadoc||

    That assumes the punishment is fair. I also don't think strip searches are intended as punishment, only as a condition of visitation. It would seem an unusual punishment, which, you might or might not recall, is unconstitutional.

  • Seamus||

    Damn straight. We should start feeding all those Jewish and Muslim prisoners ham sandwiches and tell them that if they don't like it they can stand on their principles and starve. This is Murika!

  • Bored Lawyer||

    Query. Putting aside the transgender issue, under RLUIPA, is it established that a religious objection to having a woman guard conduct a strip search a basis to require the prison to use a male guard? (I am not familiar with this area of the law, so I really don't know.)

    If the answer is yes, then it seems to me that the fact that the man's religion defines this person as a "woman" ought to be controlling. Once we are saying that one's sincerely held religious beliefs require an accommodation from the prison, then I don't see how we can suddenly say, but we are declaring this woman to be a man.

  • Bored Lawyer||

    To use an analogy, if RLUIPA requires, for example, that a prison provide kosher food to inmates, then it seems to me that a prison cannot say, well, we decided this food is kosher, if that person's particular branch of Judaism does not consider it kosher. (Say swordfish, which most rabbis consider not kosher, but a few do.)

  • perlchpr||

    "It's cool, the pig identified as a cow before we slaughtered it."

  • nonzenze||

    Well, the question would then go to whether the religious burden is substantial and, if so, whether or not the government has a compelling interesting that cannot be met in another fashion.

    For instance, if someone had a sincere belief in not wanting to be strip searched by anyone under age 55, the government might legitimately argue that the relative paucity of such old guards available for that duty at any time would endanger its compelling interest in maintaining orderly prisons.

  • NToJ||

    Since the prison already accommodated his request not to be strip searched by this female guard in real time, it's going to be difficult for them to show they have a compelling interest moving forward (aside from their non-discrimination claim against the guard).

  • nonzenze||

    Could be.

  • Josh R||

    Does anyone find it disturbing that only religious objectors might be able to require a strip search by a person of the same sex, but other objectors would not?

  • NToJ||

    I find it disturbing that we give special privileges to people based on their religious beliefs at all. But it's the law.

  • gormadoc||

    I would rather we all have those rights but at least we're extending them to some people, especially when they believe they'll suffer eternally after death without them.

  • NToJ||

    I don't understand why the state should give special preference to unjustifiable beliefs about the afterlife. It seems to me that if we lived in a just society you would want to prefer justifiable beliefs. We do the opposite.

    It's actually worse than that because we provide special pleading to religious beliefs (at least from your perspective) in direct proportion to how histrionic they are. It encourages bad behavior. I don't negotiate with terrorists.

  • David Bremer||

    Justifiable vs. non-justifiable is going to get you into an argument with someone who truly believes in whatever deity. If I ask my brother, he can give you all sorts of what he considers justifiable reasons for his belief. At some point, you're really just rigging the game so atheists win.

    Also, by this logic, it would give you license to discriminate against people based on religion. "Exclude Jews? No, we're not excluding Jews. We're just excluding people who unjustifiably believe a candle can burn for eight days." Seems like that encourages bad behavior much more than accommodating a few people who have some very non-traditional beliefs.

  • NToJ||

    "Justifiable vs. non-justifiable is going to get you into an argument with someone who truly believes in whatever deity."

    Of course, as it will with many claims re: belief. But it is central to the idea of believes being justified versus unjustified that arguments will occur. It's not about rigging the game, it's about engaging in discussions and thought experiments. If your brother has good answers for why his specific beliefs are justified, more power to him. I haven't heard his argument.

    "...it would give you license to discriminate against people based on religion."

    Yea, so what? I reserve the right to select my closest friends based on the things they believe. Don't you? Anyway, I have heaps of friends who believe things I think are unjustifiable. That doesn't necessarily mean I'm going to "discriminate against" them. Humans are flawed. As for the state's religious accommodations, I oppose government-sponsored discrimination, but think that Employment Division v. Smith balances the interests in a more socially useful way than does the RFRA/Sherbert/Yoder. But I also think the law in Smith was stupid in the first instance, and wouldn't have enforced it against anybody, including peyote smoking Native Americans.

  • JonFrum||

    "Anatomically female" = "Female."

    Anything else is delusion. If you tell me your name is Jesus Christ, I'll nod and smile. I won't expect you to raise anyone from the dead, and I certainy won't worship you.

  • AmosArch||

    If Jared from subway claims he feels like an 8 year old and thus should have some of his victims arrested instead of him due to statutory rape laws. Why can't he based upon the type of laws and underlying reasoning we have for saying gender is what you feel like?

  • DavidTaylor||

    Depending upon the outcome of this case, I may join the Church of God Doesn't Like Prison.

  • A nerdy Fred||

    I believe in medical facts.

    One of those, confirmed in multiple studies starting with Zhou et al, is that if you autopsy the brains of transgender people and look at sex-specific areas, those areas match the reported gender and not the swimsuit zone.

    Which is actually what you'd expect from the history of trans people who try desperately, heroically, to live in their birth-certificate gender. If they could choose to be at peace they would.

    If being transgender were a mental illness, we'd have successful therapy like we do for schizophrenia. The pre-Benjamin attempts to "cure" transgender people were as futile and cruel as attempts to "cure" left-handedness and homosexuality.

    Intersex conditions are a thing, and the evidence has piled up that one intersex condition is that the brain wiring goes one way and things below the neck go the other.

  • Bob from Ohio||

    "I believe in medical facts."

    Apparently not.

  • NToJ||

    Here's the article Bob. It's not a bunch of hippie sociologists opining on whatever. It's neuroscientists commenting on the physical neuron contents in brains. Are you more qualified to opine on it?

  • Toranth||

    I cannot comment on the chemistry. However, as a former professional statistician, I can tell you that they have poorly chosen their tests (fail to meet prerequisites), overstate their significance, and vastly understate their variances. The primary reason for this is that they had a terrible sample selection - 42 brains, split into 7 categories, with only 6 'test' brains.

    A quick search online shows a number of other papers critical of this Kruijver paper, including one that points out that Kruijver conflates sexual orientation with gender identity. Some of those are still arguing the same point, they just don't like Kruijver's bad science.

    Try reading the Rametti or Pol studies for some better, more detailed, views.

  • NToJ||

    Here's Rametti if anyone is interested.

  • NToJ||

    Rametti here.

  • Zoe Brain||

    A sex difference in the human brain and its relation to transsexuality. by Zhou et al Nature (1995) 378:68–70.
    ... Our study is the first to show a female brain structure in genetically male transsexuals ...

    Repeated experiments, and later MRI and PET imaging showed results consistent with those initial autopsy findings.

    Male–to–female transsexuals have female neuron numbers in a limbic nucleus. Kruiver et al J Clin Endocrinol Metab (2000) 85:2034–2041
    ... The present findings of somatostatin neuronal sex differences in the BSTc and its sex reversal in the transsexual brain clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions...

    White matter microstructure in female to male transsexuals before cross-sex hormonal treatment. A diffusion tensor imaging study. - Rametti et al, J Psychiatr Res. 2010 Jun 8.
    ...CONCLUSIONS: Our results show that the white matter microstructure pattern in untreated FtM transsexuals is closer to the pattern of subjects who share their gender identity (males) than those who share their biological sex (females)...

    There's literally thousands of papers now on the subject.

    It's not as simple as male vs female brain, but close enough.

  • Toranth||

    The issue is not nearly as clear as you are trying to suggest.

    There are not "thousands" of papers, there are a very small number - I can find about a dozen, all by the same small set of 20-ish authors.

    All of which have very small sample sizes, and none of which make your claim of "male vs female brain". In fact, some of those papers show that some brain differences are a RESULT of the transition, not a cause.

    The net takeaway is that the brains of people that perform certain behaviors tend to approach the brains of others that perform the same behaviors. Any other claim is just exaggerated.

  • Zoe Brain||

    A list of over a hundred is at http://www.cakeworld.info/tran.....hat-causes

    That list is about 5 years old, and was always a partial list.

    One of the latest publications is:
    European Society for Endocrinology Conference 2018
    Symposium S30.3
    Abstract : Brain structure and function in gender dysphoria

    Professor Julie Bakker, who led the research at the University of Liege in Belgium, said: "Although more research is needed, we now have evidence that sexual differentiation of the brain differs in young people with GD, as they show functional brain characteristics that are typical of their desired gender."

  • John Rohan||

    I also believe in medical facts, and you are misrepresenting what those brain studies say. All they show is that transgender people have abnormal brain chemistry (which is not surprising). No study has said that transwomen have female brains, or visa versa.

    Regardless, it still doesn't change the fact that the guard in this case is anatomically female.

  • NToJ||

    "...and you are misrepresenting what those brain studies say."

    What did he say that misrepresented what the studies say? I missed the part where he said "transwomen have female brains, or visa versa." What he said was:

    if you autopsy the brains of transgender people and look at sex-specific areas, those areas match the reported gender and not the swimsuit zone.

    Is that not an accurate report on the study?

  • NToJ||

    "...and you are misrepresenting what those brain studies say."

    What did he say that misrepresented what the studies say? I missed the part where he said "transwomen have female brains, or visa versa." What he said was:

    if you autopsy the brains of transgender people and look at sex-specific areas, those areas match the reported gender and not the swimsuit zone.

    Is that not an accurate report on the study?

  • John Rohan||

    No, it's not. I have looked at many of these studies in detail. There's really no such thing as "sex specific areas", and while trans persons show SOME crossover, that's hardly conclusive evidence. Every human being on earth has both masculine/feminine traits.

  • DavidTaylor||

    "If being transgender were a mental illness, we'd have successful therapy like we do for schizophrenia."

    We do not have "successful" therapy for schizophrenia.

  • swood1000||

    If being transgender were a mental illness, we'd have successful therapy like we do for schizophrenia.

    If Alzheimer's disease were an illness we'd have a successful therapy. Ergo, there is no Alzheimer's disease.

  • swood1000||

    In the case of identical twins, one of whom is gay and the other straight, is it safe to say that the sexuality of at least one of them was determined by environmental rather than genetic factors?

  • EscherEnigma||

    You didn't actually read that article, did you? It's spot on: current theories are that it's genetics AND environment (specifically, the uterine environment). It's not an "or" question.

  • swood1000||

    You didn't actually read that article, did you? It's spot on: current theories are that it's genetics AND environment (specifically, the uterine environment). It's not an "or" question.

    According to the article, the twins share the same DNA. Consequently, a difference in sexual orientation must have an environmental origin. "They suggest that hormones and epigenetics (the influence of environmental factors on genes) could be important." This still has an environmental cause. Where is the genetic cause?

    specifically, the uterine environment

    Odd. I don't find any reference to "uterine" in the article.

  • EscherEnigma||

    The "genetic cause" is in your lack of understanding of how hormones and epigenetics works.

    Put simply, if you don't have the right genes to start with, then hormones and epigenetics won't do shit. They can activate genes, turn them on and off, suppress or exacerbate, but if your genes don't hold the potential for something it won't matter.

    Odd. I don't find any reference to "uterine" in the article.


    The womb. That's when these environmental variables are taking place.

    So again: current theories are environmental and genetic. It may take the both of them to have this child.

  • swood1000||

    The "genetic cause" is in your lack of understanding of how hormones and epigenetics works.

    Put simply, if you don't have the right genes to start with, then hormones and epigenetics won't do shit.

    Right but in the case of identical twins they both either do or do not have the right genes to start with. If a gene is activated in one but not the other then this has an environmental cause.

    So again: current theories are environmental and genetic. It may take the both of them to have this child.

    But the difference in sexual orientation between two identical twins has only an environmental cause if the potential is equally there for both but only triggered in one, right?

    According to the Council for Responsible Genetics, "The scientific argument for a biological basis for sexual orientation remains weak." They believe that "society must recognize the validity of lesbian and gay lifestyles," but suggest that the attempt to find a genetic basis is grounded in the belief that this will reduce discrimination against gays. The scientific basis is just not there yet, but this would not be the first time a scientific belief was greatly influenced by politics.

  • EscherEnigma||

    Right but in the case of identical twins they both either do or do not have the right genes to start with. If a gene is activated in one but not the other then this has an environmental cause.


    Only in that context. "In these twins, factor X seems to have been the cause". The moment you move to the more general case you go straight back to talking about the multiple factors. "In general, factors X, Y and Z seem to be the cause".

    Trying to pin it down to one "cause" is a sophistic effort that has little resemblance to reality.

    But the difference in sexual orientation between two identical twins has only an environmental cause if the potential is equally there for both but only triggered in one, right?


    That seems likely, but if I could confidently say that I wouldn't be trying to correct your poor understanding of biology, I'd be writing a paper on my cutting-edge research.

    Because, as you keep noting but seem to not understand, this isn't settled science. We have a lot of smoking guns but we haven't found the trigger. You want to pick out one thing as the trigger, and that's not supported.

  • swood1000||

    You want to pick out one thing as the trigger, and that's not supported.

    Yet you agreed with me that it "seems likely," that in the case of two identical twins (the point of the original article), environmental factors alone made the difference as to which sexual orientation resulted, and therefore that we can pick out one thing as the trigger in that circumstance (i.e., environmental factors).

    Then you seem to try to say that this is of limited importance because it applies to identical twins, and "only in that context." But the point of the identical twins is to take original DNA out of the equation, and to see if we can identify a case in which the difference in sexual orientation must have been caused by environmental factors. And if environmental factors can be the determining factor for identical twins it can also be the determining factor for non-twins.

    This doesn't deny that it might be necessary for there to be a genetic predisposition. It simply establishes that there can be a case in which only environmental factors made the difference as to whether a particular sexual orientation resulted. Some of these factors may be "epigenetic," and some may not be.

  • aluchko||

    It's safe to say sexuality isn't 100% genetic (well almost, identical twins aren't perfectly identical). But that doesn't say much since most things are a mixture of environment and genetics.

    Either way, it's pretty well established that sexual orientation, once set doesn't flip. Which implies something pretty fundamental is happening to the brain. For instance a severed spine is most definitely environment, not genetics, but you're not going to get them walking again using group therapy.

  • Lee Moore||

    Identical twins do not have identical genomes :

    https://www.scientificamerican.com/
    article/identical-twins-genes-are-not-identical/

    Moreover, you inherit one allele of a gene from your Mom and one from your Pop, and one version is typically deactivated in each cell. But not the same one in every cell. Which one is deactivated in each cell depends in the first instance on the cell's line of descent from the very earliest cells. But clumps of cells that are doing well in their local environment may outcompete other clumps changing the proportions of which alleles are being used and which are deactivated. So twins descended from a single egg can develop different genomes and different patterns of allele activation, partly under the influence of the local environment during early development, but also partly randomly.

    You could say that all of that is "environmental" including the random element, but it's really much more intricate than that. The genes affect the environment and the environment affects gene activation. There's feedback. The traditional understanding of environment as having to do with society and nurture - and so something within the reach of politics - is a tiny part of {everything else that isn't fully determined by the genotype of the fertilised egg.}

  • AmosArch||

    Gender theory is the left's version of creationism.

  • NToJ||

    I don't know what you mean by "Gender theory" but most of the claims made by people I assume you consider "gender theorists" are at least falsifiable.

  • AmosArch||

    "I am a woman as soon as I say so regardless if I still have a schlong sticking out and you better agree with me and let me rain down propaganda on you and your kids in a constant omnipresent stream of media and mandatory classes about how I should be worshipped for this forever, and be given your hard earned money to give to convicted criminals and little children to mutilate themselves with surgery and drugs and any disagreement with the preceding gives me free rein to deplatform you and destroy your life",

    doesn't sound like much of a falsifiable theory to me.

  • NToJ||

    Whether a man has brain architecture or chemistry that is more similar to a woman's brain (than another man's brain) is a falsifiable theory. Whether events occur in utero that can interfere with the ordinary connection between having male sex organs and having a brain that identifies itself with being a male, is falsifiable. Whether a person can be made better off (as a function of self reported happiness) by gender reassignment surgery, or hormone treatment, is falsifiable. Creationism, however defined, is not falsifiable.

  • Seamus||

    Whether a man has brain architecture or chemistry that is more similar to a woman's brain (than another man's brain) is a falsifiable theory.

    And yet no one who claims to be transgender is ever expected to demonstrate that xir brain architecture or chemistry corresponds with xir claimed gender and that xe isn't just taking advantage of our practice of letting people self-identify. As a result, the gender theorists, as a practical matter, make self-identification rather than brain architecture or chemistry the real determinant of male or female.

  • NToJ||

    It's hard for me to stand in defense of "gender theorists" because I don't know who you're talking about. I can understand why a psychologist who is asked to treat a patient claiming gender dysphoria might treat the patient like a fucking human being instead of as a pariah, based on the science. Actually, I can see why they would do that even if in any given case it was obvious that the brain architecture wasn't the cause. Why? Because there's nothing evil about letting someone pretend to be the opposite sex. The hard questions come when we have to decide where that person can go, whether to engage in invasive treatments, etc.

    But if I go to a psychologist asking for help with my depression, they don't insist on a brain scan to determine the physiological cause before providing me some non-invasive treatment. Transgender people shouldn't be treated differently.

  • EscherEnigma||

    If brain scans are needed for the diagnosis, you've already been passed on to a neuro-surgeon and are out of the psychiatrist's office.

  • Lee Moore||

    Whether a man has brain architecture or chemistry that is more similar to a woman's brain (than another man's brain) is a falsifiable theory.

    Weeell, maybe. Comparing a human brain and a salmon brain will produce so many unambiguous points of difference that are utterly consistent across your whole sample of humans and your whole sample of salmon that you've pretty much got yourself something falsifiable, if you claim a pig's brain is closer to a human's than to a salmon's.

    But between men and women you're going to have an awful lot of overlap, with many different points of comparison and difference that will probablty not line up neatly like the human v salmon thing.

    Hence you're going to need to be a lot more precise about what you mean by "similar." The tradional approach is to do your comparisons and then define "similarity" according to the result you want. But that's cheating.

  • TwelveInchPianist||

    Many are even false.

  • Sarcastr0||

    Just like none of them will click on your link above, NToJ, they're too triggered to bother with anything but their ipse dixit.

  • AmosArch||

    Okay I glanced at his linked papers and I'll explain them for the benefit of people here. You can fill in if I misstate any objective fact since I don't have time to exhaustively read every article people post in a slapfight but I think I got the jist of it. Basically NToJ and Sarcastro are reverting to what is known as the 'phrenological argument' where transgender supremacists as their last line of defense throw up papers pumped out by like minded extremists in academia where they cherry pick individuals from the transgender population and fish for random characteristics ie MRI patterns correlated between this group and the population of the opposite sex. Once they find them (usually divorced of context) then BOOM this automatically proves that every single man who claims to be a woman literally is a biological woman for all intents and purposes.

    Now thinking about this argument logically for a minute or two will get you to realize how problematic it is for their position. Even if you accept the premise rather than bolstering transgenderism they've basically disproven several of the most popular theories of genderfluidity. The wonderful rainbow spectrum is reduced to at most, piddling quantum states informed by immutable biological fact. Theres no room for the sort of indeterminancy activists would like. Better knock off a few letters from those acronyms folks. Cont......

  • AmosArch||

    Secondly this doesn't really prove men claiming to be women are actually women...anymore than a guy who thinks he's a pigeon and has more activity in the flight region of his brain because he thinks about it so much literally is a pigeon, this simply proves that transgender people exist. What you will generally find is that many gay and transpeople often display some behavioral or physical characteristics of the opposite sex. But very rarely if at all will you have a completely replication of the entire suite of stereotypical characteristics. Transgender men and gay men still are different from real biological women in fundamental ways. IE gay men and women both prefer males but gay men often retain malelike promiscuity, thoughts types, and sexual assertiveness which is much rarer in females. In short none of these studies literally demonstrate the dogma of a female brain transplanted in a male body or vice versa.

    Since studies are apparently infallible heres another one that while in much same vein as NtoJ's link basically blows up the notion that the 'women trapped in men's body' typology is a universal thing. But I guess that part was slipped in by a racist bigot.

    https://archive.is/8wMFZ

  • NToJ||

    "Secondly this doesn't really prove men claiming to be women are actually women..."

    Of course it doesn't. Did the paper suggest otherwise?

    "...this simply proves that transgender people exist."

    You should have a sufficient understanding of what "transgender people" means to not need a fucking scientific study to prove their existence. You spend enough time railing against the transgender agenda that I'm a little surprised to see you stuttering over its members' existence.

    "...'women trapped in men's body' typology is a universal thing."

    Did I say it was universal?

  • NToJ||

    "...this automatically proves that every single man who claims to be a woman literally is a biological woman for all intents and purposes."

    Literally nobody in this thread is making this claim.

    "...piddling quantum states informed by immutable biological fact."

    That's not what the paper says. But the paper wasn't setting out to prove (or disprove) whatever is in your mind about the "wonderful rainbow spectrum".

    What's strange is that you'd get so worked up about a scientific study re: gray and white matter in human brains. Whether it's a "universal thing" is important, because if there are at least some subset of people whose brain chemistry is the cause (rather than some environmental factors), that has important implications for, among other things, whether treatment is justified, the type of treatment, etc.

  • Variant||

    Climate Alarmism too.

  • ReaderY||

    This seems a rather standard application of the RFRA.

    However, a regime in which gender is a personal identity indeterminable from appearance and behavior, and in which the very belief that particular genders have particular appearances or behaviors is regarded as itself an illegal stereotype, would appear to make it rather hard for a plaintiff to establish disparate impact discrimination.

    To establish impact, a plaintiff first has to prove that people of different genders were treated differently. Proving different treatment remains easy enough, but how can a plaintiff possibly establish that the genders involved were different? The means traditionally employed - appearance and behavior - not only lack probative value but serve as nothing but sources of prejudice. Nothing a plaintiff observed is of any use. Perhaps plaintiffs can conduct a survey to determine the gender identities involved. But the matter would appear far more difficult, and hence sex discrimination far harder to establish, than previous civil rights law, which assumed sex was something easily knowable, ever contemplated.

  • NToJ||

    RFRA doesn't apply.

  • Longtobefree||

    Missing details:
    What was his crime?
    When was he incarcerated?
    Who cares?

  • EscherEnigma||

    The first two aren't actually relevant, but he's been incarcerated since '95 and the prison is a maximum security prison.

    As for who cares, well, he obviously cares enough to sue the prison, the guard and the prison's management care enough to refuse him, and the judge cares enough to let it proceed. Most of the rest of us are just the peanut gallery, but there's plenty of stakeholders that care.

  • Seamus||

    The first two aren't actually relevant, but he's been incarcerated since '95 and the prison is a maximum security prison.

    IOW, he's got plenty of time to think up ways of fucking the system up with litigation.

  • Eddy||

    I presume the prison is facing conflicting legal pressures.

    I doubt the administrators arose one fine morning and said, "you know what? It's a shame that woman guards, at least the ones who think they're men, don't have the right to grope the male inmates in cavity searches."

    More likely it was a threat of litigation on behalf of "trans rights."

    OK, then, they didn't want to fight what they considered a losing case, so some of their female guards get classified as men and vice versa.

    Very well, but prisons also face RLUIPA requirements, and having a female guard search a male inmate over the inmate's objections raises religious-liberty issues.

    Maybe the prison can show they're using the least restrictive means of achieving a compelling government interest. If they can't show that, then this prisoner should have the privilege of being groped by male guards only.

  • Eddy||

    I imagine that the compelling govt. interest is prison discipline and not having prisoners balk at cavity searches.

    So the issue would be less-restrictive alternatives. If there's no actual male guards available, then maybe that's an argument for having a search done by a female guard, otherwise I would think the less-restrictive alternative would be using a male guard.

  • Eddy||

    If the less restrictive alternative is also known as the policy pursued by many actual prisons until fairly recently, then it's easier from the point of view of the religious objector.

  • Eddy||

    (that is, easier to prove his case)

  • Variant||

    Eddy, you win the thread.

  • Zoe Brain||

    Maybe this might aid understanding;

    Sexual Hormones and the Brain: An Essential Alliance for Sexual Identity and Sexual Orientation Garcia-Falgueras A, Swaab DF Endocr Dev. 2010;17:22-35

    The fetal brain develops during the intrauterine period in the male direction through a direct action of testosterone on the developing nerve cells, or in the female direction through the absence of this hormone surge. In this way, our gender identity (the conviction of belonging to the male or female gender) and sexual orientation are programmed or organized into our brain structures when we are still in the womb. However, since sexual differentiation of the genitals takes place in the first two months of pregnancy and sexual differentiation of the brain starts in the second half of pregnancy, these two processes can be influenced independently, which may result in extreme cases in trans-sexuality. This also means that in the event of ambiguous sex at birth, the degree of masculinization of the genitals may not reflect the degree of masculinization of the brain. There is no indication that social environment after birth has an effect on gender identity or sexual orientation.

  • John Rohan||

    There's a lot of conditional language there: "may result", "can be", "may not reflect", etc. In other words, they are guessing.

    In any case, even if the guard in this case literally developed a "male brain" she is still female, defined by her role in the reproductive process, the same way we define the sex of any animal.

  • NToJ||

    "In other words, they are guessing."

    Wrong but who cares.

    "In any case, even if the guard in this case literally developed a "male brain" she is still female, defined by her role in the reproductive process, the same way we define the sex of any animal."

    Nobody knows if the guard developed a male brain. How people define the sex is their own decision. Nobody is disputing that the guard has a uterus, so what are you adding to the discussion?

  • John Rohan||

    If how people define sex is really their own decision, then that applies to the inmate in this situation. He defines the guard as female.

  • NToJ||

    Yes, of course, that's why the guards accommodated the prisoners request to be searched by a biological male. But, again, what's your fucking point????

  • Lee Moore||

    I really don't think Zoe's reference is controversial. It's not a secret that different secondary sexual characteristics develop at different times under the influence of different genes and hormones.

    But as you say, the sex of an organism is determined by its role in the reproductive process, and if some secondary sexual characteristics don't map to the primary reproductive one, well, they're....secondary.

  • Zoe Brain||

    From a legal viewpoint...

    A hypothetical: a prisoner has a sincere religious belief that redheads are devils and witches, and it would be sinful to disrobe before one. Should this sincere religious belief be accommodated?

    As regards Islam - Iranian Shia belief, as evidenced by multiple fatwas of the Ayotollah Khomeini are that trans people are the sex they claim to be, and that surgically and hormonally altering their bodies to fit their "real" sex is mandated.

    Other sects differ, as do various Christian and Political ideologies.

    From
    Submission to SCOTUS in regards Gloucester County School Board v. G.G - interACT: Advocates for Intersex Youth, et al.
    ...
    Notably, the legal system has struggled for decades to answer the definitional question that Petitioner simply begs. By the time Title IX was enacted, courts well recognized that "(t)here are several criteria or standards which may be relevant in determining the sex of an individual."
    M.T. v. J.T., 355 A.2d 204, 206–08 (N.J. App. Div. 1976) (listing chromosomes, external genitalia, gonads, secondary sex characteristics, and hormones, as well as gender identity).
    Commentators have noted the "variability of standards that courts employ" in making such determinations.
    Even courts in the same jurisdiction have disagreed about how to determine sex when physiological features do not align.

  • Eddy||

    That's fine, but according to the suit, the guard in this case had breasts.

    You can make all the Chuck Schumer jokes you want, but this doesn't seem to be some intersex person. Indeed, she didn't say "I'm intersex," but "I'm a dude," according to the allegations in the suit.

  • EscherEnigma||

    If you read the order, the report of the incident is all in the prisoner's words, so since this is just saying "this can proceed for now" I'm not sure we should take it as fact that the prisoner was accurate in hid description of the guard.

    That said, not all trans folk medically transition, the guard could have been at different points in their transitioning, etc. and so-on.

    And that said, while "breasts" is a good rule-of-thumb for "male/female", it's not an actual rule. A woman with a double-mastectomy and no nipples (most often due to breast cancer) still has to wear a bikini top at the beach. A man with double-Ds doesn't.

  • Eddy||

    "I'm not sure we should take it as fact that the prisoner was accurate"

    I didn't suggest that, but the claims are taken as true at the preliminary stage when they're trying to get the suit dismissed.

    Maybe if a jury gets the case we'll find it's a totally different scenario from what the prisoner said - it won't affect the principle that he's *alleged* a violation and should have a chance to take it to a jury, with the burden of proof of course being on him to show it happened like he claimed it did.

  • Eddy||

    (Once he meets that burden and shows he actually holds the religious views he claims, it will be the government's turn to prove compelling interest and least restrictive alternative - a task which is often easier in the prison context than on the outside. Though if it gets to the stage of the government justifying its policies, my own personal take is that the prisoner can be accommodated with the same policies many other prisons have pursued without major hassle for years before this)

  • Eddy||

    But I certainly advise my many readers among the judges and jurors not to be influenced by my comments in doing their judicial duty.

  • EscherEnigma||

    "I didn't suggest that […]"
    You're treating it as accurate enough to use as basis to speculate on the guard's intimate biology, aren't you?

  • Eddy||

    No, it's what he should have the chance to prove to a jury, and if they agree with him, he should win.

  • Eddy||

    Again, I advise all the judges and jurors who hang on my every word not to be influenced by my suggestions.

  • EscherEnigma||

    That's fine, but according to the suit, the guard in this case had breasts.
    You can make all the Chuck Schumer jokes you want, but this doesn't seem to be some intersex person. Indeed, she didn't say "I'm intersex," but "I'm a dude," according to the allegations in the suit.


    So this isn't you taking his statements as face value and speculating on the guard's biology?

  • Eddy||

    Allow me to explain, based on doing something you might consider doing - reading the opinion.

    The court is performing a statutory screening function to see if the plaintiff's claim should be weeded out without a trial.

    "The court must dismiss a complaint if the plaintiff raises claims that are legally "frivolous or malicious," that fail to state a claim upon which the court can grant relief, or that seek monetary relief from a defendant who is immune that relief."...

    "To state a claim, a complaint must contain sufficient factual matter, accepted as true, "that is plausible on its face."..."A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged."..."

    If you want to contest the facts, you have to wait for the jury trial, as I explained more than once above.

    Are you familiar with the rules of civil pleading?

  • Eddy||

    "At this early stage, the plaintiff has alleged sufficient facts to allow him to proceed on a claim that Buhle, Kind and Eckstein violated his right freely to exercise his religion, by subjecting him to pressure to violate his beliefs by submitting to a strip-search in front of, or by, an allegedly female officer."

  • Zoe Brain||

    https://en.m.wikipedia.org/wiki/Gynecomastia

    " And that said, while "breasts" is a good rule-of-thumb for "male/female", it's not an actual rule. "

    Neither is genital appearance at birth.

    " In an isolated village of the southwestern Dominican Republic, 2% of the live births were in the 1970's, guevedoces ... These children appeared to be girls at birth, but at puberty these 'girls' sprout muscles, testes, and a penis. For the rest of their lives they are men in nearly all respects ... Their underlying pathology was found to be a deficiency of the enzyme, 5-alpha Reductase."

    5ARD, and other similar syndromes such as 17BHSD, 3BHSD etc can either cause or cure Gender Dysphoria. Boys with 5ARD get a miracle cure. Girls with 5ARD face a descent into nightmare. And another group, again about a third in total, have no strong gender identity and can cope with it to a greater or lesser degree.

    See for example
    Gender change in 46,XY persons with 5alpha-reductase-2 deficiency and 17beta-hydroxysteroid dehydrogenase-3 deficiency. Cohen-Kettenis PT. Arch Sex Behav. 2005 Aug;34(4):399-410.

  • eyesay||

    I understand that in some prisons in the United States, there are prisoners who are never actually in the same room as their visitors, but see each other through a glass window, and thus the visitor cannot pass contraband along to the prisoner, but after the visit, the prisoner is strip-searched anyway. My interpretation is that prisons and people who work there are mean and nasty and do a lot of things, including strip-searches, for mean and nasty reasons, not for any valid reason of prison safety. I strongly suspect that that is the case here, and I believe that the strip search is unnecessary and intended to humiliate, and it should not be done routinely. Visitors should go through metal detectors and their bags should be x-rayed and inspected like in an airport, and that should be enough, especially for prisoners who have shown that they are non-violent and non-aggressive.

  • Bruce Hayden||

    My vote here is the Muzzie over the Tranny.

    I think that the proble is the abstraction. In real life, in real prisons, there are hundreds, if not more, guards at a typical prison, and in the case of male prisons, almost all are cis male. Making sure that this Muslim prisoner was only strip searched by cis males would be almost trivial. There is no compelling, or even reasonable state interest in having a self identified trans male searching the prisoner, over the far more numerous cis males available.

    The more interesting case, I think, would be to reverse things - having a self-identified, non-transitioned trans woman privately searching a cis female. While male prisons tend to have mostly male guards, female prisons often have a substantial number of male guards. In most cases the male and female guards are interchangeable. But there are exceptions, and one of them is when a guard is going to be alone with a prisoner behind a closed door. The big worry is heterosexual sex - primarily consensual, but not exclusively. For example, in a visitor's area where visitors and prisoners of the same sex/gender share bathrooms, prisoners get a female guard escort. Both minimizing sex and contraband are compelling interests of any female prison. The reason though that I think that flipping the sexes is more interesting is first that the staffing issues are maybe more acute. And secondly, males tend to be more sexual aggressive.

  • Bruce Hayden||

    My vote here is the Muzzie over the Tranny.

    I think that the proble is the abstraction. In real life, in real prisons, there are hundreds, if not more, guards at a typical prison, and in the case of male prisons, almost all are cis male. Making sure that this Muslim prisoner was only strip searched by cis males would be almost trivial. There is no compelling, or even reasonable state interest in having a self identified trans male searching the prisoner, over the far more numerous cis males available.

    The more interesting case, I think, would be to reverse things - having a self-identified, non-transitioned trans woman privately searching a cis female. While male prisons tend to have mostly male guards, female prisons often have a substantial number of male guards. In most cases the male and female guards are interchangeable. But there are exceptions, and one of them is when a guard is going to be alone with a prisoner behind a closed door. The big worry is heterosexual sex - primarily consensual, but not exclusively. For example, in a visitor's area where visitors and prisoners of the same sex/gender share bathrooms, prisoners get a female guard escort. Both minimizing sex and contraband are compelling interests of any female prison. The reason though that I think that flipping the sexes is more interesting is first that the staffing issues are maybe more acute. And secondly, males tend to be more sexual aggressive.

  • John Rohan||

    It's true the prison could easily accommodate the inmate by finding another guard. But - that's an implicit admission that the guard here is somehow different, and somehow not 100% male. This one of those things that everyone knows, but they don't want to publicly admit.

  • A nerdy Fred||

    Here's a bibliography of just some of the scientific literature about the brains and identities of trans and intersex people. The same blog has plenty of other interesting things to look at.

    http://aebrain.blogspot.com/p/.....ntity.html

  • A nerdy Fred||

    I just thought of an intriguing test of the plaintiff's beliefs.

    His arguments are
    1. His religion requires him to protect his modesty around the opposite sex
    2. What constitutes "opposite sex" is what the delivery room doctor put on the birth certificate, and not what's in the other person's brain or soul

    In that case, he should be content if Caitlyn Jenner orders him to lift his scrotum for her and to let her look between his butt cheeks. A trans woman, on the arguments he is making, he would have to consider to be a man.

    I think he would object to that.

    This is not to ridicule him. I bet he's hurting for real and it's almost certain he's endured harsh retaliation for challenging prison authorities.

    Playing with logic is irresistible though.

  • swood1000||

    I think he would object to that.

    Probably, but not for reasons of opposite sex modesty. More likely because he doesn't want to be examined by a person he considers deranged. How does this test the plaintiff's beliefs?

  • John Rohan||

    I don't think his argument is that what constitutes "opposite sex" is what the delivery room doctor put on the birth certificate. More likely, what constitutes sex is a person's biological role in the reproductive process. Same as how most (sane) people define sex.

  • EscherEnigma||

    That's the same kind of logic that says a eunuch is no longer a man or that a woman with a hysterectomy is no longer a woman.

    And sure, some people put stock in that nonsense, but I'm not sure we should encourage them.

  • John Rohan||

    No, that's not the same kind of logic. A car doesn't stop being a car because it has a flat tire. There's a difference between having non-functioning equipment, vs having equipment meant for a completely different purpose.

  • OtisAH||

    Discovering the usual band of VC reprobates, snowflakes, and white supremacists find transgenders to be more icky than Muslims is either enlightening, or amusing. Maybe both.

  • Eddy||

    So you found some factual flaws in the scenario laid out by the plaintiff, or you've done the RLUIPA analysis and believe that strip-searches of male prisoners by female guards is the least restrictive means of achieving prison security?

    Or is this simply a question of voting against whichever group is ickier - if I decided on that basis, I'd vote against the Muslim prisoner, not because he's Muslim but because he was obviously convicted of some icky crime.

    Or do you even support RLUIPA at all?

  • Eddy||

    OK, so from the Wisconsin DoC Web site, his crimes include theft, robbery, car theft, and felon in possession of gun.

    (At least the only person there with the same name has those crimes to his credit)

    So who wins the "icky" contest, if that's the key legal consideration here?

  • Variant||

    Most likely just "#resist" is their rationale.

  • Michael Cook||

    From my career in criminal corrections I can affirm that there are many instances where male officers end up dealing with nude female inmates and vice versa. I will also add that an unusual number of female corrections personnel are lesbian for some reason, but that if I were a male prisoner I would much rather be strip searched by a female who is gay or straight than by a male. That's just me, I suppose.

    The problem in corrections is that medical emergencies, suicide attempts, and fights in shower rooms all can involve unavoidable nudity. You have to deal with the immediate life-threatening issues first. I hate to recall how close I came to receiving a newborn baby into my dirty hands on a jail floor, relieved only at the moment of delivery by a female inmate who happened to be an RN who had been caught in the oxycodone cabinet at her last job. Fortunately she had been in jail for 30 days, her brain was clear, and she ran to wash her hands thoroughly and grab the cleanest towel she could find in the unit. The regular jail emergency response staff was tied up elsewhere in a semi-gang riot between Hispanics and Samoans with a lot of cuts produced.

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