There would inevitably be clashes of newly imagined “rights” which took for granted that the newer, woker ones weren’t zero-sum games even though there was no possibility it could be anything else. But the idea that a clash in a Wisconsin prison would pit gender identity against religion probably wasn’t high on anyone’s list of “what could possibly go wrong.” Yet, it did.
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.
There is no particular reason why Title VII and Equal Protection, as interpreted by Bostock effectively including transgender people in its prohibition against discrimination on the basis of sex, wouldn’t arise in the context of prison guards. And, indeed, it raised numerous issues, not the least of which would be a transgender female guard in a women’s prison where coerced sexual activity was a very serious problem. But this was a male prison, and a transgender male guard.
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.
Whether one believes this tenet of Islam is silly or insignificant in comparison to the interests of not discriminating against transgender people does not render this sincere religious belief unworthy of respect. But then, under the extant recognition of a transgender male as a male, was West’s religious belief sufficiently worthy of respect to trump Buhle’s gender identity? Not as far as prison officials were concerned.
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 brought suit against the warden and staff of the prison for violating his rights under Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., for burdening is religious freedom.
[West’s] 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.
To be fair, Judge Pepper held that West had no right to a same-sex search, so the fact that the observing guard was transgender was irrelevant. The Seventh Circuit, by Chief Judge Diane Sykes, disagreed.
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 countervailing argument, of course, was not without merit given the state of the law.
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.
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 court found these points unpersuasive, noting that Buhle would suffer no adverse employment consequences as a product of not being West’s strip-search observer, and that it did not create a hostile work environment. While true, it’s similarly true that this still involves differential treatment based on sex and a rejection of the premise that a transgender male is male. Curiously, the court also reversed the district court’s dismissal on summary judgment of West’s claim that a cross-sex strip search violated his Fourth Amendment rights based upon the invasiveness of a post-visit search.
What’s significant is that the Seventh Circuit panel faced with irreconcilable law essentially chose religion over sex discrimination, and then went on to tweak its rationale around the edges to justify its choice. It’s not that the dancing around the nuances isn’t accurate, or even correct, but that the problem arising in West’s suit is one that will arise in an essentially infinite number of circumstances and there is no overarching principle to deal with the issue of which rights, whether privacy, religion, association or otherwise, are primary or secondary to the rights of transgender people to be deemed legally the gender with which they identify. This was the obvious conflict that would arise from the Bostock holding, and it’s going to be extremely difficult, if not impossible, for society to figure out whose interests prevail.