The ACLU of Pennsylvania and the Pennsylvania Institutional Law Project (PILP) filed a federal lawsuit on September 26, 2016 on behalf of Niara Burton, a transgender woman who has been incarcerated in seven different male prisons by the Pennsylvania Department of Corrections (DOC) over the past four years. 

During her incarceration, Burton has been subjected to repeated sexual harassment and abuse, including being raped by another prisoner and forced by a guard to perform oral sex.  The lawsuit alleges that the DOC has failed to put policies and training in place to ensure the safety of transgender women inmates and asks that she be placed in a women’s prison.

"Sexual abuse is never a part of a prison sentence, and as a transgender woman in a men's facility, Ms. Burton is particularly vulnerable.  She has the right to be safe.  The DOC's failure to ensure that Ms. Burton is treated with respect and dignity has exacerbated the terror of her daily life,” said Alexandra Morgan-Kurtz, staff attorney at the Pennsylvania Institutional Law Project.

Burton is a 28-year-old transgender woman currently incarcerated in the State Correctional Institution at Frackville (SCI Frackville), a maximum security men’s prison operated by the DOC.  She has lived as a female since she was a teenager and received hormone therapy since she was 16. Nevertheless, she has been housed in male prisons since being incarcerated in November 2012.

During her time in the state correctional system, Burton has repeatedly been forced to shower with male inmates, groped during pat downs and strip-searches by male guards, and called derogatory names, including “faggot,” “she-he,” and “it.” In 2014, a guard forced Burton to perform oral sex on him, and in 2015, guards left the door to Burton’s cell unlocked, allowing another inmate to enter her cell and rape her.

Burton has repeatedly reported the abuse she has endured to the DOC’s sexual abuse hotline and begged prison officials to transfer her to a women’s prison, to no avail.

“Transgender prisoners face a high risk of sexual and physical abuse and harassment, making it especially important that prison officials take steps to ensure their safety,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Despite repeated notice, the DOC failed to take the necessary steps to protect Ms. Burton.” 

According to the lawsuit, the DOC is obligated under both the U.S. Constitution and the Prison Rape Elimination Act (PREA) to prevent sexual assaults of inmates. PREA requires that the decision to place transgender inmates in a male or female facility be made on a case-by-case basis and include an individualized assessment. These assessments must consider the inmate’s gender identity and give serious consideration to an inmate’s own views with respect to safety. Burton has received no meaningful evaluation or assessment of her placement needs during her four-year incarceration.

Under PREA, searches of transgender female inmates can only be carried out by male staff under special circumstances or if the inmate states that she is more comfortable being searched by a male than a female.  Otherwise, such searches must be carried out by female staff or a medical professional. Institutions are required to implement policies and procedures that enable transgender female inmates to shower, use the bathroom and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia. 

"Ms. Burton has suffered greatly.  She should be housed in a women's prison to protect her from further abuse and harassment.  We hope this lawsuit will help her and cause the Department of Corrections to recognize that it is not treating its transgender inmates appropriately," said Alexander Bilus, co-counsel at Saul Ewing.

The case is Burton v. Wetzel, and Burton is represented by Sara Rose and Witold Walczak of the ACLU-PA, Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project, and Bilus and Joshua Richards of the law firm Saul Ewing LLP.

More about the case, including a copy of the complaint, is available at: www.aclupa.org/burton

Original Press Release