Federal Judge Finds Wyoming Prison Violated Constitutional Rights of Intersexual Prisoner

In what may be the first U.S. court decision to consider the constitutional rights of intersexuals, U.S. District Judge Clarence A. Brimmer ruled on February 18 in DiMarco v. Wyoming Department of Corrections, 2004 WL 307421 (D. Wyoming), that state prison officials violated the 14th Amendment Due Process rights of Miki Ann DiMarco when they consigned her to 14 months in a dungeon-like high security lock-up without affording any kind of hearing process for her to challenge that decision.

However, Brimmer "reluctantly" ruled that the prison officials did not violate DiMarco's 8th Amendment right to be free of cruel and unusual punishment, and concluded that her claims to Equal Protection of the laws had not been violated because there was some rational basis for the prison officials' decision.

The story of DiMarco's imprisonment is a tale of ignorance and fear, demonstrating the long road ahead of the intersexual rights movement in educating American society to understand the reality of intersexuality so that persons born with such a condition enjoy appropriate respect for their human rights. Intersexuals, sometimes called hermaphrodites, are individuals who are born with both male and female characteristics. This condition is usually the result of an abnormality of the sex chromosomes or a hormonal imbalance during the development of the embryo.

Beginning in the 1950s, standard practice of physicians confronted at delivery with an intersexual infant was to recommend immediate surgery followed by hormone therapy, if necessary, to render the child female, and doctors would present this to the stunned parents as medically necessary, not a matter of choice. By the 1990s, adult intersexuals who had been subjected to these procedures and found the results profoundly unsatisfactory had begun to organize to persuade the medical profession to abandon these practices, forming the Intersex Society of North America, and they have made substantial progress in getting doctors to accept the idea that intersexual infants should not be subjected to surgery until they are old enough to make informed decisions. Extensive information about intersexuality is available on the Society's website, <>.

Miki DiMarco was born with a tiny penis, no testicles, and no female reproductive organs. The absence of testicles means that her body does not naturally produce the hormones that lead to masculinization (body shape, body hair), and since puberty she has lived as a woman, despite the lack of female reproductive organs. She has never had surgery to remove her penis, however. Her condition was diagnosed as being congenital, as a result of disruption of gonadal development in the womb.

She was sentenced to confinement at the Wyoming Women's Center after her probation on check fraud charges was revoked due to lack of verifiable identification and positive drug tests. She had been held in the Laramie County jail for over a month in the women's section without incident, but on arrival at the state women's prison, a complete medical exam led to discovery of her penis and evident consternation among the staff there. She was immediately assigned to the maximum security wing of the prison, where she was totally segregated from the general population, where she remained for the 438 days (about 14 months) of her prison term.

By contrast to the dormitory-like housing for the general women's prison population, the maximum security section was described by Judge Brimmer as being like a dungeon, and confinement there meant deprivation of virtually all the amenities afforded to general prison population inmates. For the length of her confinement, DeMarco had no contact with other prisoners and limited contact with prison staff, living essentially isolated from human contact. She had to consume all her meals in her tiny cell, with cement block walls, solid steel doors, and access to a tiny day room with a TV high up on one wall (controlled remotely by a guard) and a steel table and bench set bolted to the floor. Unlike general population, she had no assigned place to store personal effects and was given only two sets of prison clothing (unlike five sets assigned in general population). Since she was in maximum security, she was not allowed to work for an allowance to buy personal items, could only use the exercise area when no other prisoners were there for brief periods of time. She was not allowed to have her hair cut for 14 months. She could select books from a limited selection on a library cart occasionally brought around. Although one officer gave her a deck of playing cards, they were confiscated after three days. If she tried to converse with other inmates in the segregation wing, she received disciplinary write-ups for violating the no-communication rule.

In other words, although she had been determined to present no risk of violence or rule-breaking to merit maximum security, the flustered prison staff, uncertain how to treat a woman with a penis, decided to put her in solitary for her own "protection," and then imposed all the constraints of solitary confinement that are designed to deal with potentially violent prisoners.

Judge Brimmer found that this was "an assignment to a segregated housing unit, which was at the least administrative segregation and at the worst punitive segregation which was based solely on Plaintiff's gender and physical characteristics." Even though DiMarco had received the lowest possible risk score on the initial intake evaluation form, her score was "overridden" by the deputy warden "because Plaintiff appeared to be a male in a female institution." The warden was on vacation when DiMarco first arrived at the prison, but she ratified the deputy warden's decision upon her return. In DiMarco's prison file, her housing assignment was put down to "medical issues." Part of this was also attributed to the lack of verifiable identification for DiMarco, although a fingerprint check through the FBI's national database showed no criminal record for her.

DiMarco was not afforded a hearing on either the initial classification or the subsequent reclassification evaluations required by prison rules, even though she made repeated requests to be transferred to less restrictive housing. Although prison medical officials concluded that she was "not sexually functional as a male," and the warden requested guidance from the state Department of Corrections, such guidance never arrived. Judge Brimmer wrote that the state officials "apparently put their heads in the sand on this issue, and let Defendant Warden Blackburn tough it out on her own." Judge Brimmer found that the prison had not even followed its own rules which would have afforded DiMarco a rudimentary hearing process to challenge the nature of her confinement.

However, amazing as it may seem, the U.S. Supreme Court has set the bar so high on finding an 8th Amendment cruel and unusual punishment violation, that Brimmer found, "reluctantly," that he had to reject this part of DiMarco's claim. She was housed in sanitary conditions, she received three square meals a day, she was not deprived of sleep and was allowed to exercise, and was not physically assaulted. In essence, under federal constitutional law, the 8th Amendment is only invoked in cases of extreme deprivation of the necessities of life or physical torture of prisoners, or deliberate indifference by prison officials to serious medical conditions requiring treatment.

On the other hand, Brimmer clearly felt that the prison officials had failed to afford DiMarco the minimum procedural fairness required. He wrote, "this Court is concerned and alarmed that the WWC staff did not allow Plaintiff to be involved in solving the housing issue through a hearing. Plaintiff, unlike those involved in a mandatory disciplinary hearing, did not violate prison rules but simply arrived at the WWC with certain physical characteristics that she did not choose. Plaintiff should have been allowed to at least let her thoughts and concerns be heard prior to the WWC's final decision to place Plaintiff in solitary confinement." Finding that this confinement for 438 days was "a sufficient departure from the ordinary incidents of prison life" to require due process protections, Brimmer concluded that her due process rights were violated, that the prison could have made available "better housing quarters" rather than subjecting her to the level of confinement used "for the most dangerous or violent inmates." He concluded that imposing this confinement on DiMarco was "not fair," and, even if segregation was necessary for safety reasons, "the prison officials didn't need to enforce the segregation as if she were a malefactor of the worst kind."

However, Brimmer found no equal protection violation. Surprisingly, considering the empathetic and carefully reasoned due process analysis, he fell back on a formulaic approach to the equal protection issue, finding no prior cases treating intersexuals as a "suspect class" for equal protection purposes (of course, there are no prior cases involving intersexuals), and thus applied the undemanding rationality test to evaluate the difference in treatment of DiMarco and other women inmates. Even as to this, Brimmer was unwilling to find unlawful discrimination, concluding that the prison had a "rational" basis safety for segregating DiMarco. Perhaps he felt that having ruled for DeMarco on the due process claim, in a situation where prison officials were undoubtedly acting more out of ignorance and fear than malevolence, he would not rub salt in the wounds by ruling against them on an additional constitutional basis.

In terms of a remedy, Brimmer found it difficult to quantify an appropriate amount for compensation, especially as medical experts testified that DiMarco, amazingly resilient, had not suffered permanent psychological injury as a result of this experience, so he imposed only "nominal" damages of $1,000, while ordering that the defendants bear the costs of DiMarco's

lawsuit. Given the length of the trial and the complexity of the case, that is likely to run them many thousands of dollars in attorneys fees, expert fees and court costs.

Brimmer ended his decision with an admonition to the prison officials: "This Court also impresses upon the WWC and the WDOC the need to develop a plan and procedures to handle future administrative segregation based upon non-disciplinary issues such as those presented in the case at hand." A.S.L.

LESBIAN/GAY LAW NOTES ISSN 8755-9021 March 2004

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu

Lesbian/Gay Law Notes is usually available at http://www.qrd.org/qrd/usa/legal/lgln/03.04. Since the qrd server seems to have been down for at least a week, we have taken the liberty of republishing the content here.

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