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Religion and the Law

Muslim Male Inmate Entitled to Religious Exemption from Strip Searches by Female-to-Male Transgender Guard

"[A] prisoner's right to be free from highly invasive intrusions on bodily privacy by prison employees of the opposite sex—whether on religious or privacy grounds—does not change based on a guard's transgender status."


From West v. Radtke, decided Sept. 16 by Chief Judge Diane Sykes joined by Judges Joel Flaum and Michael Brennan (reversing a decision I blogged about here):

Rufus West is confined at Wisconsin's Green Bay Correctional Institution where he must undergo strip searches by prison staff on regular occasions—namely, when he leaves and reenters the prison, during lockdowns, before and after visits from outsiders and certain other movements within the facility, and whenever directed by a prison supervisor. Under prison policy two guards participate in every strip search, one who directly performs it and another who observes to ensure that it is performed properly.

West is a Muslim. Strip searches by prison guards of the opposite sex violate the moral tenets of his faith, which prohibit him from exposing his body to a woman who is not his wife. { According to his Islamic beliefs, he is forbidden to expose his naked body to anyone but his wife. This precept compels him to shield the area between his naval and knees from others, especially from those of the opposite sex. Knowingly violating the nudity prohibition will condemn him in the afterlife, with greater condemnation resulting from cross-sex violations of the taboo.} In July 2016 he was required to submit to a strip search by a guard who is a transgender man—a woman who identifies as a man.

West objected on religious grounds but was refused an accommodation, and the transgender guard participated in the strip search as the observing officer. After this incident, West requested an exemption from future cross-sex strip searches. The warden denied the request and told West that he would be disciplined if he objects again….

West sued under RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000), through which Congress provided that prisons that receive federal funds "may not 'impose a substantial burden on the religious exercise' of an inmate unless it can prove that doing so 'is the least restrictive means of furthering [a] compelling governmental interest.'" (For more on RLUIPA and its relationship to RFRA and the history of the Free Exercise Clause precedents, see this post.) The court held that West had shown that the prison's actions imposed a substantial burden on his religious exercise:

The challenged practice here is the prison's policy requiring West to submit to cross-sex strip searches in violation of the moral tenets of his Islamic faith. Everyone agrees that West's objection to this practice is both religious in nature and sincere. The dispute at this step of the RLUIPA framework centers on whether the prison's strip-search policy is a substantial burden on West's religious exercise….

"[A] burden on religious exercise … arises when the government 'put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" In assessing whether a burden is substantial, we "focus[ ] primarily on the intensity of the coercion applied by the government" and not the centrality of the religious practice in question. {We do not mean to suggest that a substantial burden may arise only when a prison threatens an inmate with some negative consequence. A substantial burden might also arise when a prison declines to provide an inmate access to something that will allow him to exercise his religion.} … Although the relevant line—how much pressure is too much—may be difficult to discern with precision, we know from Holt v. Hobbs (2015) that "significant disciplinary consequences" cross it….

[T]he prison argues that West's limited request for an exemption from only cross-sex strip searches undermines his claim because all strip searches—even those by male guards—violate the nudity taboo of his religion. To the extent this is an objection to West's willingness to compromise, the argument fails …. In Holt the prisoner proposed a half-inch beard even though his faith obligations forbade him from trimming his beard at all. The Court nonetheless found a substantial burden on his religious exercise….

At times the prison's argument goes beyond objecting to compromise and begins to imply that West misunderstands what his religion requires. The prison suggests that we can infer that West is not really burdened by cross-sex strip searches because prison life demands that he endure strip searches generally. Put slightly differently, the prison maintains that West shouldn't care who strip-searches him because the religious transgression is equally grave whether his naked body is exposed to a male or a female guard.

As an evidentiary matter, this argument is contrary to the record. At his deposition West explained that although the nudity prohibition applies generally, he "would be punished more harshly if … Officer Buhle strip search[ed] [him] than if … a man strip search[ed] [him]."

The argument also misses the mark as a matter of law. The substantial-burden inquiry does not ask whether West's understanding of his faith obligations is correct. "Courts are not arbiters of scriptural interpretation," so "the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations." West's understanding of the Islamic faith draws the line at cross-sex strip searches, and "it is not for us to say that the line he drew was an unreasonable one."

To be clear, courts are authorized to decide—indeed, must decide—whether a request for a faith-based exemption is in fact religious in nature and sincere. These are "factual inquiries within the court's authority and competence" that are "important to weed out sham claims." But there's no dispute about the religiosity or sincerity of West's beliefs. The prison's argument on the substantial-burden question is both factually and legally flawed.

The court then considered whether the burden could be justified by a compelling government interest. The government pointed to its interest in not violating Buhle's rights under Title VII; the Court has held that Title VII's ban on sex discrimination extends to gender identity discrimination. But granting the exemption, the court concluded, wouldn't violate Title VII:

Everyone agrees that complying with Title VII is a compelling governmental interest…. Title VII makes it unlawful to discriminate in "terms, conditions, or privileges of employment" against an individual because of his "race, color, religion, sex, or national origin." … [Title VII forbids the prison's engaging in] an adverse employment action against its transgender employees. Adverse employment actions are "material, sufficiently important alterations of the employment relationship." This means "something more disruptive than a mere inconvenience or an alteration of job responsibilities."

Broadly speaking, three types of employment actions meet the threshold: "(1) termination or reduction in compensation, fringe benefits, or other financial terms of employment; (2) transfers or changes in job duties that cause an employee's skills to atrophy and reduce future career prospects; and (3) unbearable changes in job conditions, such as a hostile work environment or conditions amounting to constructive discharge."

The last category includes severe and pervasive harassment: "mistreatment of an employee by coworkers or supervisors that is sufficiently severe to worsen substantially his conditions of employment as they would be perceived by a reasonable person in the position of the employee."

The prison offers no argument under established Title VII doctrine that exempting West from cross-sex strip searches would inflict an adverse employment action on its transgender employees. There's no suggestion that a change in compensation would result, and such an insignificant change in job duties neither harms the career prospects of transgender employees nor creates a hostile work environment. And it certainly does not amount to a constructive discharge. Simply put, requiring strip searches to be performed by guards of the same sex as the inmate does not materially alter the conditions of employment. The prison does not argue otherwise.

The prison's Title VII argument would fail even if it could show that exempting West from cross-sex strip searches would lead to an adverse employment action. Title VII permits sex-based distinctions in employment where sex "is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise."

Generally speaking, the exception is narrow and approves sex-based employment discrimination only where "the essence of the business operation would be undermined by not hiring members of one sex exclusively." The distinctive needs of prisons, however, often allow sex-based adjustments to employment duties. See, e.g., Dothard v. Rawlinson (1977) (order and security in a prison housing particularly violent inmates, including many sex offenders); Everson v. Mich. Dep't of Corr. (6th Cir. 2004) (prison security and inmate safety and privacy); see also Reidt v. County of Trempealeau (7th Cir. 1992) ("Title VII's proscription against sexual discrimination in employment must be balanced against issues of inmate privacy and jail security ….").

Sex is a bona fide occupational qualification for performing strip searches of prisoners with sincere religious objections to cross-sex strip searches. RLUIPA requires a prison to avoid placing a substantial burden on an inmate's religious exercise as long as it can do so without undermining a compelling governmental interest. Here the asserted governmental interest—complying with Title VII—expressly allows sex-based limitations on strip-search duty because the limitation is reasonably necessary to accommodate the bodily-privacy and religious-exercise rights of inmates.

Courts have long recognized that sex is a trait relevant to inmate privacy. "[W]hile all forced observations or inspections of the naked body implicate a privacy concern, it is generally considered a greater invasion to have one's naked body viewed by a member of the opposite sex." Harris v. Miller (2d Cir. 2016) (alteration in original) (quoting Canedy v. Boardman (7th Cir. 1994)); see also Byrd v. Maricopa Cnty. Sheriff's Dep't (9th Cir. 2011) ("The desire to shield one's unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity." (alteration in original) (quoting York v. Story (9th Cir. 1963))). That "basic fact of human behavior" sometimes allows or even requires sex-based adjustments to prison guard duties. Smith v. Fairman (7th Cir. 1982) (per curiam).

Federal law and the prison's own policy acknowledge the relevance of sex to prison strip searches. The prison already bans "cross-gender" strip searches in accordance with [the Prison Rape Elimination Act of 2003]. Even so, the prison insists that denying West's requested accommodation is consistent with these rules. It argues that "gender," which is left undefined in the applicable prison policy and federal regulation and guidance, means something other than biological sex.

There are reasons to doubt the prison's interpretation of these authorities. {A Department of Corrections regulation provides that "[e]xcept in emergencies, a person of the same sex as the inmate being searched shall conduct [a] strip search." The undefined term "sex" presumably takes its ordinary meaning that refers to male and female biological traits. The prison's written policy instructs that strip searches "shall be conducted in compliance with" this state regulation. And as explained, the DOJ suggests that "gender" as used in 28 C.F.R. § 115.15(a) should be interpreted with reference to applicable legal authorities such as the state regulation. West does not raise this point, however, and our conclusions do not rest on an interpretation of prison policy or state or federal regulations.} That aside, we have previously [held] that Title VII allows prisons to prohibit cross-sex strip searches for purposes of inmate privacy…. Canedy v. Boardman (7th Cir. 1994)….

The prison also contends that Canedy does not apply because it concerned a male prisoner and female prison guards while this case concerns a male prisoner and a prison guard who is a transgender man. But a prisoner's right to be free from highly invasive intrusions on bodily privacy by prison employees of the opposite sex—whether on religious or privacy grounds—does not change based on a guard's transgender status.

For all these reasons, the prison can accommodate West's request for a religious exemption from cross-sex strip searches without violating Title VII.

Note that the court described Buhle here as a "prison employee[] of the opposite sex," which is to say as a woman for legal purposes. An alternative agreement for West would be that, whatever the prison or the law may understand Buhle's sex to be, for RLUIPA purposes—and for inmate privacy rights purposes more generally—the question must be what West understands Buhle's sex to be, whether or not the secular legal system shares that understanding.

The court offered a largely similar analysis as to the prison's compelling interest in avoiding an Equal Protection Clause violation:

When a sex-based classification is at issue, the burden is on the state to demonstrate that the "classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." "Between [the] extremes of rational basis review and strict scrutiny," "[t]his intermediate level of judicial scrutiny recognizes that sex 'has never been rejected as an impermissible classification in all instances.'" Indeed, "[p]hysical differences between men and women … are enduring," and "a community made up exclusively of one [sex] is different from a community composed of both."

The prison's position is immediately in doubt given that Canedy, though not an equal-protection case, endorsed a ban on cross-sex strip searches. Canedy aside, the prison has not developed an argument that exempting West from cross-sex strip searches would fail intermediate scrutiny if challenged on equal-protection grounds. The prison simply asserts that accommodating West would require it to treat its employees differentially based on sex. That's obviously true, but the pertinent question is whether the difference in treatment is unlawful.

A sex-based classification of this type is not unlawful. Accommodating West's request for an exemption from cross-sex strip searches is substantially related to the important governmental objective of respecting the RLUIPA and constitutional-privacy rights of prison inmates. Indeed, the prison already prohibits female guards from strip-searching male prisoners except in exigent circumstances. If that is constitutionally permissible—and it is—so too is West's requested accommodation.

In sum, the prison will not violate any employee's Title VII or equal-protection rights by exempting West from cross-sex strips searches. On remand West is entitled to appropriate injunctive relief….

And the court also held that West stated a Fourth Amendment claim, but remanded for further development of that theory in light of recent Seventh Circuit precedent on strip searches of inmates generally.