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Seventh Circuit sides with religious rights over gender expression rights in prison strip-search case

The Seventh Circuit has ruled in favor of a Muslim prison inmate in a case that pitted the inmate's religious convictions against a transgender prison guard's right to be treated the same as his cisgender colleagues.

CHICAGO (CN) — A Wisconsin state prison violated one of its inmates' religious rights, a Seventh Circuit appellate panel decided Friday evening, when it subjected him to a strip-search conducted in part by a transgender prison guard.

The decision stems from a 2017 lawsuit brought by Wisconsin state inmate Rufus West against the administration of the Green Bay Correctional Institution, where he was incarcerated at the time. In July 2016, the prison required West, a Muslim man also known as Muslim Mansa Lutalo Iyapo, to submit to a routine strip-search following a visit from an outside friend. West did not object to the search, but he did object to who was helping conduct it: a transgender prison guard named Isaac Buhle.

Per the prison's guidelines, two guards participate in every strip search — one who directly performs the search and another who observes to ensure it is conducted properly. Buhle, who was born female but identifies as a man, was assigned to the observer role against West's wishes. West wrote in his 2017 suit that he felt "panic" at Buhle observing him naked, as he believes that Buhle is intrinsically a woman.

Standing naked in front of a woman who is not his wife, West wrote, violated the tenets of his faith.

"[West] believes... that it's impossible for a woman, including Buhle, to be male," West's appellate brief states.

Following the 2016 strip-search, Green Bay Warden Scott Eckstein reportedly rejected West's religious exemption request to never be searched by Buhle again.

"I have reviewed the situation and the officer in question is a male and is qualified to complete these duties. If in the future you are directed to submit to a strip search by this individual or any other male staff member it is my expectation that you will comply," West said Eckstein told him in 2016.

West subsequently sued Eckstein and other prison staff in the U.S. District Court of Eastern Wisconsin, but his case was tossed in 2019 by U.S. District Judge Pamela Pepper, a Barack Obama appointee. She opined 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," Pepper wrote.

On Friday, the Seventh Circuit's 30-page opinion reversed Pepper's ruling. Penned by a conservative judicial panel consisting of Chief Judge Diane Sykes and circuit judges Joel Flaum and Michael Brennan — George W. Bush, Ronald Reagan and Donald Trump appointees respectively — it found that the Green Bay Correctional Institution had placed an unconstitutional burden on West's right to practice his religion. The ruling also called for an injunction against transgender men performing West's strip-searches.

"There’s no dispute that his objection to cross-sex strip searches is both religious in nature and sincere. The prison has substantially burdened his religious exercise by requiring him to either submit to cross-sex strip searches in violation of his faith or face discipline," the ruling states.

The opinion comes almost a year after the panel first heard oral arguments on West's case in September 2021. During those arguments, attorneys for Wisconsin and the prison painted West's supposed religious concerns as a mere smokescreen for transphobia. Wisconsin Assistant Attorney General Brian Keenan 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 to the panel last September.

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 2020 Supreme Court case Bostock v. Clayton County found that gay and transgender individuals are a protected class under Title VII.

"The harm is they're being treated differently based on their transgender status," Keenan said.

The panel was unconvinced by Keenan's arguments. It opined that Buhle or other transgender employees would suffer no adverse employment actions if they were asked to abstain from conducting West's strip-searches.

"There’s no suggestion that a change in compensation would result, and such an insignificant change in job duties neither harms the career prospects of transgender employees nor creates a hostile work environment," the opinion states. "And it certainly does not amount to a constructive discharge. Simply put, requiring strip searches to be performed by guards of the same sex as the inmate does not materially alter the conditions of employment."

Besides reversing Pepper's decision as to West's religious rights claim, the panel also addressed West's claim that the "cross-sex" strip-search Buhle helped perform was unconstitutional under the Fourth Amendment. Finding that the claim may have merit, the judges remanded the case back to the District Court of Eastern Wisconsin for further proceedings.

"As our earlier discussion explains, this claim finds support in circuit precedent holding that highly invasive cross-sex privacy intrusions like strip searches are unreasonable under certain circumstances," the opinion states.

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Categories / Appeals, Civil Rights, Criminal

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