A strip search of a Muslim prisoner involving a transgender male guard violated his religious beliefs, a federal appeals court has ruled.
The trans guard supervised a strip search of Rufus West, an inmate at the Green Bay Correctional Institution in Allouez, Wis., in 2016. The searches involve one guard actually performing it while another observes. West is subject to the searches “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,” notes the ruling from the U.S. Court of Appeals for the Seventh Circuit.
West objected to the search on religious grounds, as his faith mandates that he not appear unclothed before members of the opposite sex, except for his wife — and he considers a trans man a member of the opposite sex. He asked for an exemption from what he deems “cross-sex strip searches” in the future, but prison officials denied this and said he would be disciplined if he objects again. He sued, naming the prison warden and various other corrections officials.
A federal district judge dismissed West’s suit, saying there had only been one “cross-sex search” and it wasn’t clear if and when others would take place. The judge also said that preventing a trans guard from participating in the search would be discrimination.
A three-judge panel of the Seventh Circuit handed down a ruling Friday reversing that decision. “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,” Judge Diane Sykes wrote.
She said that barring a trans male guard from these searches wouldn’t be discrimination, even though the U.S. Supreme Court has held that anti-trans discrimination amounts to sex discrimination under Title VII of the Civil Rights Act of 1964. Preventing the guard, Isaac Buhle, from doing or observing the searches wouldn’t alter the conditions of his employment, Sykes wrote.
Even if it did, she said, “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.’”
She sent the case back to the district court for an injunction against searches in the future either by cisgender female or trans male guards. She also said the district court should consider West’s allegation that the search was a violation of the unreasonable search and seizure prohibition under the Fourth Amendment to the U.S. Constitution.
West was convicted of armed robbery and possession of a gun by a felon in Milwaukee in 1995, the Milwaukee Journal Sentinel reports. He is now 51 and is due for release in 2024.