Civil Rights Clinic Fall 2018 Updates

The Civil Rights Clinic (CRC) has had an exciting and eventful past few months. In June, the CRC reached a tentative settlement agreement in a case brought on behalf of a transgender individual confined in the Colorado Department of Corrections. The settlement was finalized in September, and two of the student attorneys provide a reflection of their work on that case below. In July, the CRC secured the release of a federal prisoner after over two years litigating his post-conviction claim. The government immediately appealed, and we are continuing to litigate that appeal. In the interim, we are happy that our client is home with his family. Finally, in August, the CRC tried a case in federal court brought on behalf of a federal prisoner challenging the Federal Bureau of Prisons’ infringement of his religious rights. A student attorney who worked on that case for the past year provides a second reflection of her experiences below.

Moonshadow v. Raemisch: Reflections by Olivia Kohrs and Allie Parrott

We began our time in the Civil Rights Clinic representing Ms. Jayde MoonShadow, an incarcerated transgender woman, in a suit against the Colorado Department of Corrections (CDOC). Our case contained three claims. The first claim alleged an Eighth Amendment violation for inadequate medical treatment for Ms. MoonShadow’s severe gender dysphoria with anatomical dysphoria. The second claim alleged an Eighth Amendment violation because of CDOC’s blanket ban of treatment modalities for gender dysphoria beyond hormone replacement therapy and access to bras. The third claim alleged a Fourteenth Amendment violation for discrimination against transgender female prisoners compared to cisgender female prisoners. During our time on the case, we spent the first academic year in two stages: the discovery stage and the briefing stage. When we stayed on our case through the summer in the Civil Rights Clinic Summer Intensive, we began our third and final stage: settlement.

Our first stage, discovery, began as soon as we started the year and continued through March. We began the semester by diving right in to prepare for a scheduling conference in September. We then drafted and filed an amended complaint and moved forward into discovery. We began by responding to Defendants’ first set of written discovery which consisted of many interrogatories, requests for production, and requests for admission. We spent countless hours and several visits with Ms. MoonShadow to answer these requests. This was the first time we got to meet our client and working with her so closely to respond to immensely personal discovery requests gave us the opportunity to get to know one another and build a strong foundation for the client relationship that would come to guide the rest of our work on the case.

We also served several rounds of discovery requests on Defendants and argued discovery dispute hearings before the magistrate judge. We used this time to learn everything we could about our client and her personal experiences, about gender dysphoria and its treatment, about conducting discovery and civil procedure, and about the prison system in general. We conducted ten depositions and defended Ms. MoonShadow’s.While this was going on, we also had the opportunity to work extensively with our two experts.

Defendants disclosed their expert in February 2018, who largely agreed with our own experts’ recommendations about the treatment that was medically necessary for Ms. MoonShadow’s gender dysphoria.  This, coupled with Defendants’ disclosure of updated clinical standards that included consideration of gender confirmation surgery and CDOC’s withdrawal of the operative policy under which we brought our lawsuit, precipitated two major filings that would consume a significant portion of our second semester. This began the briefing portion of our time on this case. Over the next month and a half, we drafted and filed a motion for preliminary injunction and a motion for declaratory judgment.

After receiving Defendants’ rebuttal expert report, we sought to get Ms. MoonShadow most of the relief she was seeking through her lawsuit immediately because all experts agreed that such treatment was medically necessary. We worked diligently over a weekend to draft and file a motion for preliminary injunction by the beginning of the next week. Simultaneously, with the newest information about CDOC abolishing the policy we brought our claim under, we filed a motion for declaratory judgment in March on Ms. MoonShadow’s second claim challenging the constitutionality of the policy. We moved the Court to enter a declaratory judgment and order that the policy and its blanket ban on gender confirmation surgery is unconstitutional under the Eighth Amendment.

Following a hearing, we sent an opening offer to Defendants to settle the issues raised in the motion for preliminary injunction. In exchange for Ms. MoonShadow withdrawing her motion, Defendants offered to amend the policy to establish a process for transgender women to obtain female underwear and access to the female canteen list, including make-up. Reaching a preliminary agreement, we withdrew our motion and scheduled a private settlement conference.

We then entered summer and began the third and final stage of our work on this case, settlement. In June 2018, we attended a private mediation and came to an agreement. In September 2018, we officially settled and filed a joint stipulation to dismiss the case.  The settlement included policy changes to allow transwomen to possess and purchase the same undergarments and canteen items, including, notably, makeup, to which women in female facilities have access.

When Ms. MoonShadow reached out to the clinic, CDOC had prescribed her hormones but would not provide her with bras, which was causing her both physical and emotional pain, while putting her on a continual and elevated risk of harm living in a male facility. Now, transgender women not only have access to those bras, they have access to the whole range of undergarments available to prisoners in female facilities, they have access to evaluation for gender confirmation surgery, and they have access to the female canteen list, which includes the ability to purchase and wear makeup, an often critical step toward being able to conform with one’s gender identity.

These changes cannot be overstated. At a time when transgender rights are threatened outside of prisons, the fact that Ms. MoonShadow effectuated these changes within a prison through her lawsuit is a testament to her hard work and dedication to helping her fellow transgender prisoners, despite the immense imbalances in power at play. None of us knew much about prisons or gender dysphoria or civil lawsuits when we began our work in the clinic. This was our first case, ever. But working on this case from start to finish, we were able to immerse ourselves totally and completely in this new world. It was not easy work and the learning curve was very steep at times, but we were driven by the relationship we built with Ms. MoonShadow, and both the suffering she experienced every day, but more importantly by the hope that she held on to that things could be better and that she could be the one to make them better. We not only got to experience the ins and outs of a civil case from beginning to end, but we got to see, first hand, that these cases can, and do, make huge and tangible impacts on people’s lives.

Ajaj v. BOP: Reflection by Rachel Kennedy

On August 27, 2018, I stepped into a federal district courtroom and entered my appearance for my very first civil rights trial. By late August, I had been enrolled in the Civil Rights Clinic and working as a student attorney on behalf of my client for just over a year. I had watched as the Federal Bureau of Prisons (BOP) moved him from one facility to another. I had drafted discovery requests, authored filings, and composed dispositive motions. I had taken depositions and argued at hearings before the Court. The most important thing I did, though, was get to know the person I was representing. Mr. Ajaj is federal prisoner confined at the United States Penitentiary (USP) in Terre Haute, Indiana. As a devout Muslim, he is religiously obligated to observe a halal (lawful) diet and to engage in ongoing religious studies. When he has religious questions, he is obligated to speak with a learned advisor - an imam.

Mr. Ajaj requested that the BOP provide access to an imam and a halal-certified diet for years, but his requests fell on deaf ears. Because he remained unable to observe these basic tenets of his faith, Mr. Ajaj sought relief under the Religious Freedom Restoration Act (RFRA), which provides that the government may not substantially burden a person’s sincerely-held religious beliefs unless it is employing the least restrictive means of furthering a compelling government interest. Over the course of the year we worked together, Mr. Ajaj patiently explained the nuances of his beliefs to me time and time again. He told me about the textual sources of his beliefs, he described the religious traditions in his homeland, he explained foreign words, and he clarified his beliefs every time I misunderstood. As I stood up in court, it dawned on me just how much this man had been willing to share about himself in order to have some basic religious needs met. I was then, and remain today, incredibly proud to have represented Mr. Ajaj in his case against the BOP. What follows is a brief overview of the arguments presented at trial and the outcome of Mr. Ajaj’s claims at the district court.

Imam

When the BOP moved Mr. Ajaj from the USP in Florence, Colorado, to USP Terre Haute in January 2018, he enrolled in the Bureau’s flagship re-entry program – the Life Connections Program (LCP). As a participant in the program, Mr. Ajaj was able to access increased group prayer opportunities, and, in the week preceding trial, the BOP retained an Islamic Spiritual Guide to serve the Muslim prisoners enrolled in LCP at USP Terre Haute. One of the LCP’s mandatory curricular components is that participants attend weekly classes taught by the Spiritual Guide for their faith group. The BOP argued that its last-minute hire of an Islamic Spiritual Guide relieved the burden it has been placing on Mr. Ajaj’s religious beliefs by refusing him access to an imam. We argued that the BOP’s provision of this particular Islamic Spiritual Guide did not relieve the substantial burden the BOP imposed on Mr. Ajaj’s sincerely-held religious beliefs.

Mr. Ajaj sincerely-believes, and it is well-founded in Islamic text and tradition, that Muslims are religiously obligated to avoid or confront apostasy. Because this particular Islamic Spiritual Guide had espoused views contrary to fundamental tenets of Islam, Mr. Ajaj believes that he is religiously required to avoid the Spiritual Guide. Though the BOP’s retention of an Islamic Spiritual Guide on the eve of trial changed the contours of the burden it placed on Mr. Ajaj’s religious belief, it did not relieve it, we argued. Because Mr. Ajaj was religiously obligated to avoid the Islamic Spiritual Guide, and programmatically required to attend the Spiritual Guide’s classes, Mr. Ajaj was faced with a Hobson’s Choice wherein he had to choose between avoiding apostasy or losing the opportunity to perform some of his daily prayers with others. Ultimately, Hon. R. Brooke Jackson found that the BOP’s last-minute hire of an imam alleviated the substantial burden on Mr. Ajaj’s religious practice.

Halal

For decades the BOP has refused to provide Mr. Ajaj, or any Muslim prisoner, a halal-certified diet. The BOP took the position for years that a kosher-certified diet was adequate. But on August 24, 2018, that all changed. On the Friday before trial was set to begin, the BOP began serving Mr. Ajaj halal-certified TV dinners. It came out during trial that the order to purchase halal meals for Mr. Ajaj had come down from the highest echelons of the Bureau, and the directive had been memorialized in a memorandum signed by the USP Terre Haute Warden. It also came out that the memo could easily be rescinded, and these meals could disappear. My co-student attorneys and I successfully argued that the voluntary cessation exception to mootness governed the BOP’s last-minute provision of halal meals, and Hon. R. Brooke Jackson ultimately issued an injunction requiring the BOP to continue providing Mr. Ajaj halal-certified meals.

Representing a devout Muslim prisoner is the last thing I expected to do as secular Jewish law student. It was, far and away, the best experience I’ve ever had.