The Center for Health Law & Policy Innovation of Harvard Law School is pleased to report a big win in the courts for transgender and gender nonconforming people in prisons. Working closely with the Harvard Law School LGBTQ+ Advocacy Clinic, CHLPI filed an amicus brief in the United States Court of Appeals for the Third Circuit in Shorter v. United States, No. 20-2554 (3d Cir.) on behalf of a range of amicus parties and in support of the plaintiff. In today’s ruling, the Court of Appeals reversed the lower court’s dismissal, holding that Ms. Shorter – a transgender woman who was stabbed and raped while incarcerated in federal prison – had adequately pled that prison officials were deliberately indifferent to the risk that she would be harmed, in violation of the 8th Amendment to the U.S. Constitution. Federal officials ignored a range of clear warning signs unambiguously creating a heightened risk of sexual assault, and confined Ms. Shorter in a series of inappropriate settings and conditions that exacerbated the likelihood of harm. Despite a compelling pro se complaint that described the failures leading up to her attack, a federal district court dismissed Ms. Shorter’s complaint at the very earliest stage. With today’s ruling, Ms. Shorter will proceed in the lower court to prove her claims, absent further appeal. The plaintiff is ably represented by Rights Behind Bars, a nonprofit organization that works alongside incarcerated individuals to challenge the cruel and inhumane conditions of their confinement. Ms. Shorter’s appeal in the Third Circuit was argued by CHLPI alumna Kelly Jo Popkin.
The amicus brief provided important factual context for the court concerning the extraordinarily high rates of sexual assault faced by transgender people who are incarcerated, connecting Ms. Shorter’s risk factors in particular to national studies and empirical literature on this widespread problem. The brief was filed on behalf of the following amicus parties: The Center for Constitutional Rights, GLBTQ Legal Advocates & Defenders, Just Detention International, Southern Poverty Law Center, Transgender Law Center, Transgender Legal Defense & Education Fund, and Why Not Prosper. In addition to close collaboration with CHLPI, the Harvard Law School LGBTQ+ Advocacy Clinic filed its own amicus brief on behalf of a group of former corrections officials.