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  • October 11, 2022

    Strip Search by Transgender Guard Violated Muslim Inmate’s Rights, Seventh Circuit Rules

    A strip search of a Muslim inmate by a transgender corrections guard violated the inmate’s rights under the Religious Land Use and Institutionalized Persons Act, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    A Bearded Male Prisoner In An Orange Jumpsuit and Handcuffs Sits In A Prison Cell

    Oct. 11, 2022 – A strip search of a Muslim inmate by a transgender corrections guard violated the inmate’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. Court of Appeals for the Seventh Circuit has ruled.

    In West v. Radtke, the Seventh Circuit held that neither Title VII of the Civil Rights Act of 1965 (Title VII) nor the Equal Protection Clause of the Fourteenth Amendment justified using the guard’s sex as a basis for denying the inmate’s request to be free from cross-sex strip searches.

    Warden Denies Religious Request

    Rufus West, a Muslim, is an inmate at the Green Bay Correctional Institution. He’s required to submit to strip searches by guards.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    A policy requires two guards to participate in every strip search. One guard performs the physical search; the other observes the search to make sure it’s performed correctly.

    A strip search by a member of the opposite sex violates the tenets of West’s Muslim faith. In 2016, the prison required West to submit to a strip search performed by a transgender man.

    West objected to the search but the guards performed the search anyway. West then asked to be exempted from cross-sex strip searches in the future. The warden denied West’s request and told West that if he objected to such searches in the future, he’d be disciplined.

    Inmate Files Pro Se Lawsuit

    West sought an injunction barring the prison from forcing him to submit to cross-sex strip searches based on RLUIPA. He also claimed that the Fourth Amendment entitled him to be free from cross-sex strip searches.

    The U.S. District Court for the Eastern District of Wisconsin dismissed West’s Fourth Amendment claim, citing Seventh Circuit precedent and ruling that a prisoner has no right under the Fourth Amendment to object to a visual search of his or her body.

    The district court granted the warden summary judgment, reasoning that because West had only been required to submit to a single cross-sex strip search, he was unable to show that the prison had placed a substantial burden on his religious exercise as required by RLUIPA.

    West appealed.

    Inmate Met RLUIPA Burden

    Writing for a three-judge panel, Chief Judge Diane Sykes explained that RLUIPA protects inmates’ religious exercise.

    Once an inmate shows that a practice substantially burdens his or her religious exercise, Sykes explained, the burden shifts to the prison to prove that the practice is the least restrictive means necessary to further a compelling government interest.

    Judge Sykes wrote that West had met his burden, based on lessons from U.S. Supreme Court and Seventh Circuit precedent teaching that “a substantial burden on religious exercise occurs when a prison attaches some meaningful negative consequence to an inmate’s religious exercise, forcing him to choose between violating his religion and incurring that negative consequence.”

    “It’s clear, then, that the prison has put West to a choice that RLUIPA aims to avoid,” Sykes wrote. “Prison officials told him, unequivocally, that he must submit to future strip searches by [the transgender guard] and that refusal will result in discipline.”

    Warden’s Arguments Immaterial, Off the Mark

    The warden argued that the transgender guard might not have seen West during the strip search. But that was immaterial, Judge Sykes explained, because West had asked for an injunction against future searches.

    The warden also argued that West had undergone a single cross-sex strip search in his 20-plus years of imprisonment and couldn’t know when the next search might occur. But Sykes pointed out the search came only six months after the prison had hired the transgender guard.

    Moreover, she wrote, “[T]he more fundamental problem with the prison’s argument is that a substantial burden can exist even if it is uncertain when a prisoner will next be put to the choice of violating his religious beliefs or facing discipline … The prison’s policy … and its stated intention to enforce the policy … stands as a present and substantial burden on West’s religious exercise.”

    The warden also argued that the fact West’s faith holds all strip searches – even non-cross-sex strip searches – to be taboo undermined his RLUIPA claim.

    But that argument, Judge Sykes wrote, “misses the mark as a matter of law … 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.’”

    Title VII Issue

    The warden argued that the government’s compelling interest in the search was two-fold: protecting the rights of its transgender employees under the Equal Protection Clause and Title VII.

    With regard to Title VII, Judge Sykes explained that warden’s argument failed because he hadn’t showed that exempting West from future cross-sex strip searches would constitute an adverse employment action against transgender employees.

    “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,” Sykes wrote.

    Equal Protection Issue

    With regard to the Equal Protection Clause, Judge Sykes explained that the classification at issue was not the transgender status of the guard but the guard’s sex, because “West asks for a strip-search accommodation overtly conditioned on the sex of the prison guard.”

    Skyes pointed out that the prison had to prove the classification served an important government objective and was substantially related to achievement of that objective, a standard referred to as intermediate scrutiny.

    Judge Sykes explained that the warden had not developed the argument that exempting West from cross-sex strip searches would fail the intermediate scrutiny standard.

    Instead, she pointed out, the warden argued that granting West’s request would force it to treat its employees differently based on sex.

    “A sex-based classification of this type is not unlawful,” Sykes wrote. “Accommodating West’s request … is substantially related to the important governmental objective of respecting the RLUIPA and constitutional-privacy rights of prison inmates.”

    The appellate panel remanded the case to the district court.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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