PHILADELPHIA (CN) – A lawyer for a Pennsylvania prison argued Wednesday before the Third Circuit that it is simply following state law by keeping men and women inmates in separate facilities that have different rules.
Berks County Prison came under fire late last year when Theresa Victory, an inmate at the time, filed a class action against the prison for allegedly denying women some of the privileges that male inmates receive.
Victory claims that the men, who are kept at the Berks County Community Reentry Center, get more time out of their cells, no locks on the cells at night and better toilets as opposed to the women, who are kept at the main jail.
The county had argued that the women were kept at the main jail due to staffing and safety issues.
In January, a federal judge ruled in favor of Victory and granted a preliminary injunction ordering that women receive the same privileges as men.
Seeking a reversal, MacMain Law Group attorney Matthew Connell, representing the prison, told a three-judge panel of the Third Circuit on Wednesday that the separation is not unconstitutional.
However, U.S. Circuit Judge Joseph Greenaway, Jr. questioned the difference between gender and race segregation.
Connell pointed out that state law not only allows for gender segregation, it is in fact mandatory.
“It is not required to separate by race,” he said. “But it is a requirement to separate by gender.”
But Victory’s attorney, Su Ming Yeh with the Pennsylvania Institutional Law Project, pushed back and said the men’s facility is meant to help inmates have a smooth transition back into society, while women are denied this privilege.
U.S. Circuit Judge Thomas Hardiman pointed out that sometimes women received better treatment, noting that men get visitations once a week for 45 minutes and women get visitation three times a week for an unlimited amount of time.
Yeh noted that it is the quality of the visits that are important, not the length, adding that women have their visitation behind a glass wall while the men do not.
The attorney further added that women are confined to their cell a lot longer than the men at the reentry facility.
“Out of cell time for men was 19 hours a day, and only six hours a day for women,” Yeh said.
On rebuttal, Connell questioned how far the prison had to go to accommodate the prisoners, providing examples such as new pillows or toilet paper.
Seemingly taken aback, Hardiman said pillows are not the issue.
“I was focused more on getting to see loved ones, not the quality of a pillow,” the judge said.
Connell agreed, but asserted a line has to be drawn at some point.
“This isn’t a made-to-order operation, this is a jail,” he said.
The panel was rounded out by U.S. Circuit Judge Stephanos Bibas. It is unclear when the judges will issue a ruling in the case.