Suit shows classifying inmates ‘male’ vs. ‘female’ isn’t always simple

Monday, August 13, 2012 at 7:39am

When Carla Brenner was booked into a Davidson County jail on felony theft charges in 2011, she was sent to the female ward of the prison. Under most circumstances, nothing about that scenario would prompt a $20 million lawsuit.

But Brenner’s case is anything but ordinary.

Brenner looks and sounds like an average 56-year-old woman. She speaks with a soothing, motherly voice and has a womanly figure. One of her charges included stealing a python-print purse from the upscale Cole Haan accessories boutique in Green Hills.

Brenner claims her pelvic anatomy, however, makes her male. Based on her outwardly feminine appearance, jailers sent to her the female ward — where she claims she suffered humiliation and sexual abuse at the hands of women.

Brenner was ordered to serve seven months in prison, according to court records, after being found guilty on three counts of felony theft and one count of identity theft.

Brenner originally filed a pro se lawsuit in March 2011 after she notified authorities and was transferred to a men’s facility. She contacted an attorney earlier this year — and last week they filed an amended complaint against Metro Nashville and Corrections Corporation of America in federal court asking for $20 million in damages.

“If we’re going to say she is what she is because that’s what she is ... the state has to accommodate that to make sure that she’s protected,” Brenner’s attorney James Roberts said. “I don’t think misdiagnosing her and putting her in a population where she could be subject to harm is the solution.”

The validity of Brenner’s case will be decided by a federal judge, but her plight illustrates the challenge of classifying transgender and gender-nonconforming individuals in prison.

Brenner was raised in a Christian single-parent home in Chicago. Unlike some individuals who have epiphanies about their gender identity, Brenner maintains she’s
always been who she is.

“I identify with who I am. That’s what people get mixed up,” Brenner said. “They judge a person by what they look like. Things are often not what they appear.”

Brenner asked The City Paper to refer to her as “she” but said she doesn’t identify herself as a female. And that’s what made her time in the women’s prison so harrowing.

“I begged those people not to send me there, and they did it anyway,” Brenner said. “It was convenient for them because I looked the part.”

In the lawsuit, she cited embarrassment, harassment and abuse over having to shower in the presence of women. The lawsuit claims the misidentification of her as a woman resulted in cruel and unusual punishment and violations of her constitutional rights.

A national review of cases of sexual abuse of transgenders in prison displays a mixed bag of results. There have been several documented cases where a transgender person is abused in the female population. However, such harassment is more common in male populations.

So what is a prison to do?

Corrections Corporation of America, a Nashville-based privatized prison management company, operates the Metro-Davidson County Detention Facility where Brenner was housed.

“Our classification processes take into account the individual needs of each inmate, and we work closely with our government partners to ensure full coordination and compliance with their policies and procedures,” CCA spokesman Steve Owen said in a prepared statement.

The Davidson County Sheriff’s Office bases housing assignments for transgender inmates primarily on genitalia, according to their policies.

A medical exam from a clinic that is attached to the lawsuit notes that Brenner has an “obvious” penis. Brenner has never undergone a sex-change operation, but doctors at the prison classified her as female.

Another classification in the prison system is “intersex,” which refers to a person who has a body that is not easily classifiable as male or female, according to DCSO policy. In that case, the chosen gender identity would be taken into account.

According to the National Center for Transgender Equality, policy reform is on its way regarding treatment of such individuals in prison.

The U.S. Department of Justice released finalized prison standards in May that stemmed from the Prison Rape Elimination Act, which Congress passed in 2003. Several of those standards relate directly to transgender and other nonconforming-gender persons.

“The key issue here obviously is safety. We have a moral and legal obligation to protect people when we put them behind bars, because we take away their ability to protect themselves,” NCTE policy director Harper Jean Tobin said. “We know that transgender people are at very heightened risk of abuse.”

The new prison standards require that housing classification for transgender persons be handled on a case-by-case basis.

“There is no one-size-fits-all solution for housing for trans folks. ... The same placement is not going to be right for every person and every case,” Tobin said.

“Those [PREA rules] specifically require giving serious consideration to the individuals’ own sense of where they would be the safest. ... They may have a very strong gut feeling based on their life experience of how they are perceived by people and where they are going to be safest.”

Experts and a congressional commission formulated the new DOJ rules. The standards are in the process of being implemented in federal prisons — but won’t necessarily apply to local jurisdictions like Davidson County that contract with private prison corporations like CCA.

Over time, though, Tobin expects the DOJ policies to become accepted across the country.
“The county will not be legally bound by the regulations, but what you’re going to see is accrediting bodies like the American Correctional Association incorporating these standards. This is just going to be what is considered best practice,” Tobin said.

Brenner now lives out of state — but said she plans to come back to Nashville to fight for her rights in court.

“I’m familiar with who I am, how I was born,” Brenner said. “No one can take that from me.”

4 Comments on this post:

By: Eye Nose & Now ... on 8/13/12 at 10:15

The jail needs to create a new ward to lock up ALL PERVERTS, whether
Pervert Males, Pervert Females, Trans-gendered, or whatever type of freak
they are. Throw them all together and let THEM find out what type of Pervert
their cell mate is.

By: budlight on 8/14/12 at 6:47

The moral to this story: Don't commit a crime if you are not just one sex or the other; it is too complicated. Stay out of trouble from now on (Ms. or Mr.?) Brenner.

By: govskeptic on 8/15/12 at 8:07

I've noted the Democratic Party has the very same problem, but
don't recognize it as such!

By: whitegravy on 9/17/12 at 2:46

seems to me a woman with a penis is going to have problems in any jail, male or dont crime