CHICAGO (CN) — Federal law states that citizens have the right to religious freedom. It also states that workers have a right to a discrimination-free workplace. A case argued before the Seventh Circuit on Wednesday asked which right is more important under the legal system.
The case in question was initially brought by Rufus West, also known as Muslim Mansa Lutalo Iyapo, a devout Muslim and former inmate at the Green Bay Correctional Institution who was transferred to the nearby Redgranite Correctional Institution in 2019.
In 2016, West objected to being strip-searched by prison guard Isaac Buhle on the grounds that he considered Buhle, who is a transgender man, to be female. The inmate believes exposing his genitals to someone he considers a woman whom he is not married to will condemn him to divine punishment in this life and in the afterlife.
"[West] believes... that it's impossible for a woman, including Buhle, to be male," West's appellate brief states.
During the initial strip-search in 2016, West asked other prison guards who were cisgender men to conduct the search and the guards only partially complied — another guard performed the actual search while Buhle stood back to act as the mandated observer of the search.
This did not assuage West, who still objected to Buhle seeing him naked. When authorities at the Green Bay prison informed him he would have to make peace with being strip-searched by Buhle in the future, he filed a federal lawsuit alleging the prison had violated his First, Fourth, Eighth and 14th Amendment rights, as well as the federal Department of Correction's own rules.
The case rejected by Chief U.S. District Judge Pamela Pepper, an Obama appointee, on the grounds that West's religious conviction that Buhle was female did not outweigh Buhle's right to identify as a man and be treated as such in his workplace.
"[West] states that, in response to his complaint, the defendants lied twice by denying that Buhle was a female... The plaintiff has a right to believe what he believes. But it is not a lie for a transgender male to identify himself as a male, or for his lawyers to do so. There is no reason for the court to impose sanctions on the defendants," Pepper wrote in her 2019 ruling.
West's lawyer Nicholas Gowen pushed back on Pepper's opinion Wednesday during oral arguments before a three-judge panel of the Seventh Circuit.
The crux of his argument centered on the difference between gender and biological sex. He framed West's objection to being strip-searched by Buhle not as a bigoted disapproval of Buhle's gender identity, but as a religious ban against exposing himself to anyone who was assigned female sex at birth.
"This is a case of sex, not gender... Mr. West is not arguing that he doesn't want to interact with Mr. Buhle at all," Gowen said. "Mr. West isn't saying he doesn't want Officer Buhle to search his cell. Mr. West isn't saying he doesn't want Officer Buhle to transport him or serve him meals. Mr. West is only requesting an accommodation as it relates his Officer Buhle strip-searching him or viewing his naked body."
Gowen conceded that Buhle not being allowed to strip-search West would differentiate him from his cisgender colleagues. But he argued that this differentiation was of minor importance compared to the harm being done to West's religious liberties, and due to the power differential between an inmate and a prison guard. Gowen also pointed out that the Wisconsin Department of Corrections' own rules prohibits cross-sex strip-searches.
"Yes, Officer Buhle would be treated slightly different than other male prison guards, that's true." Gowen said, later adding, "Mr. Buhle's rights are not superior to Mr. West's."
Wisconsin Assistant Attorney General Brian Keenan, arguing on behalf of Buhle and the prison, rejected Gowen's arguments as a smoke screen for West's antipathy for transgender identity. He pointed out that in Islam, showing one's naked body to anyone besides one's spouse is prohibited, not simply to those of the opposite sex — a point West himself had admitted.
"In his deposition, [West] was asked, 'what do you believe is the outcome... if a man sees your nakedness?' and he responded, 'if I knowingly expose my nakedness to the same sex, then the punishment can be hellfire in the hereafter,'... and then he was asked, 'what's the punishment if you're searched by a member of the opposite sex?' and he said it's the same," Keenan explained.
Keenan went on to argue that demanding Buhle or any other transgender officer not perform a key job function could be seen as a violation of their Title VII rights of the 1964 Civil Rights Act.
"The harm is they're being treated differently based on their transgender status," Keenan said.
He pointed to the 2020 U.S. Supreme Court decision in Bostock v. Clayton County. In that case, the high court ruled that the 1964 Civil Rights Act protects gay and transgender employees against discrimination. The same standard, Keenan argued, should apply here, and overrule West's requests for an inconsistent application of Islamic jurisprudence.
"The DOC policy here is to treat transgender officers consistent with their identified gender rather than their sex at birth. We believe that that is consistent with the recent decision in Bostock from the U.S. Supreme Court that said Title VII protects discrimination against sex based on transgender status," he argued.
Chief U.S. Circuit Judge Diane Sykes, a George W. Bush appointee, was much more sympathetic to Gowen's arguments than those posed by Keenan. In the course of questioning Keenan, she purposefully muddied the distinction between gender and sex that Gowen had tried to keep separate, saying there was a conflict between protecting the validity of Buhle's gender identity and enforcing the Department of Corrections' ban on cross-sex strip-searches.
"[West] is simply asking that the prison system abide by its own rules," Sykes said.
Sykes was joined on the panel by U.S. Circuit Judges Joel Flaum and Michael Brennan, appointed by Gerald Ford and Donald Trump, respectively. The court took the lawyers' arguments under advisement but did not say when they would issue a ruling.
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