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Today, the Harvard Law School LGBTQ+ Advocacy Clinic submitted a Third Circuit amicus brief signed by eight high-ranking former corrections officials in support of the plaintiff in Shorter v. United States. The plaintiff is a transgender woman who had a history of being sexually victimized in prison. She is bringing a civil rights suit against various corrections staff for their failure to protect her in prison and to investigate her rape. The plaintiff is, inter alia, making an Eighth Amendment claim that corrections officers’ decision to house her in an unlockable cell far from the officer’s station in a men’s prison constituted cruel and unusual punishment.

“As correctional officials widely attest, transgender women face an epidemic of abuse in the prison system,” said Alexander Chen, Founding Director of the LGBTQ+ Advocacy Clinic. “The Third Circuit should recognize that prisons violate transgender inmates’ Eighth Amendment rights when they fail to take an inmate’s transgender status into consideration when making housing decisions.”

In its brief, the Clinic argues that corrections officers must have known of the danger to the plaintiff, satisfying the Eighth Amendment requirement that prison officials be “deliberately indifferent” to a substantial risk of harm for it to be considered punishment. First, the brief details the extreme rates of abuse experienced by both prisoners who are transgender and who have previously been victimized. One widely cited study found that 59% of transgender prisoners sampled reported having experienced sexual assault during their time in prison, which was 13 times the general population sample.[1] The brief describes the consensus among professional organizations that these two groups are particularly vulnerable. It then explains how corrections officers are aware of the vulnerability of these groups because they are trained in accordance with Prison Rape Elimination Act (PREA) standards and witness the dynamics leading to abuse in prison. Second, the brief describes the basic duty that corrections officers have to keep prisoners safe. When corrections officers fail to take appropriate precautions to protect transgender prisoners and prisoners who have previously been victimized even after they express their concerns, they violate their duty under the Eighth Amendment.

Shorter is being represented on appeal by Rights Behind Bars. The Clinic’s amicus brief can be accessed here.

[1] Valerie Jenness et al., University of California, Irvine Center for Evidence-Based Corrections, Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault 42 (2007), https://ucicorrections.seweb.uci.edu/files/2013/06/PREA_Presentation_PREA_Report_UCI_Jenness_et_al.pdf.

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