Every jailhouse lawyer is aware of Dee Farmer’s title, even when they don’t know who she is.
Farmer v. Brennan is among the many most often cited Supreme Courtroom circumstances of all time, referred to in tens of hundreds of lawsuits: about insufficient medical care, moldy and contaminated meals, overcrowding, understaffing, gang violence, and a variety of different points in prisons and jails. Anybody suing the federal government to assert that corrections officers violated the Structure by being detached to their well being or security has Farmer to thank.
What most of them don’t know is that the one that paved the highway for them was a transgender girl who filed her go well with from a federal jail cell, in an period when her gender identification was thought-about a psychological sickness.
The unique handwritten criticism that Dee Farmer filed from federal jail in 1991. This was the origin of the case Farmer v. Brennan. The case was ultimately heard by the Supreme Courtroom in 1994.
Because the Trump administration takes purpose at transgender folks, and state legislatures cross a whole lot of anti-trans legal guidelines, jail techniques face a flood of lawsuits demanding that they supply gender-affirming care. Farmer was bringing fits like these practically 40 years in the past.
In Farmer v. Brennan, the excessive court docket for the primary time mentioned that individuals in prisons and jails have a constitutional proper to be protected against violence and assault by different prisoners. The 1994 choice discovered that failure to guard the security of individuals in custody may be thought-about merciless and strange punishment.
Farmer was the primary transgender plaintiff recognized to have a case heard by the Supreme Courtroom, and her lawsuit was the primary time that the court docket addressed the problem of sexual assault in jail. And it laid the groundwork for the landmark Jail Rape Elimination Act in 2003.
“When she was bringing these claims, she by no means thought she would win,” mentioned D Dangaran, a jail civil rights lawyer and pal of Farmer’s. “She simply thought she had a proper to ask for it.”
Even as a younger baby rising up in Baltimore, Farmer adopted “female pursuits and mannerisms,” as she wrote in court docket paperwork later, “and a dislike for male oriented actions.” Academics usually took a particular curiosity in her, she mentioned, first for her intelligence, after which once they noticed the ruthlessness with which different children focused her. Unable to handle the stress of being bullied, she ultimately dropped out.
At 14, Farmer began shopping for feminine hormones on the black market. By 19, she had modified her first title, had breast augmentation surgical procedure and enrolled in a program to organize for extra gender-affirming surgical procedure, working with a number of docs in Baltimore. She was additionally working a hustle with a couple of pals to make use of stolen bank card numbers to purchase furnishings, computer systems and video tools, and have them delivered to pals’ homes.
In 1985, she was arrested and charged in state and federal courts with separate crimes associated to the scheme: theft, housebreaking and passing unhealthy checks in state court docket; bank card fraud in federal court docket. She pleaded responsible, pondering the choose would order her numerous sentences to run on the similar time. He didn’t. At 21, Farmer was sentenced to twenty years in federal jail, to be adopted by 30 years in Maryland state jail.
She was despatched to a males’s jail, the place, as a result of her youth and femininity made her susceptible, she spent nearly all of her first few years in solitary confinement. One official instructed her that typically inhabitants, “I’d be raped at knife level or probably murdered, as a result of I’d be the closest factor the inmates might get to a lady,” she wrote in a court docket submitting. When she did spend time typically inhabitants in one other facility, “I used to be continuously approached by inmates for intercourse,” she wrote, and on multiple event felt she couldn’t say no.
As a baby who was picked on and ostracized, Farmer had lengthy sought refuge in quiet locations the place she may very well be alone and skim. “After I bought to jail, the regulation library was the place the place most individuals didn’t go. That’s how I started to go there. And naturally, the extra I learn, the extra acutely aware I grew to become in regards to the regulation and what was proper and fallacious,” she recalled in an interview with The Marshall Venture. She filed her first lawsuit inside a yr, and shortly, different prisoners sought her out for assist with their authorized filings. “The extra I litigated, the higher I grew to become,” Farmer recalled.
On the time she was locked up, federal prisons wouldn’t enable gender-affirming drugs. She began getting in bother for smuggling feminine hormones into the ability. As soon as, she submitted a solid court docket doc to her jail docs, ordering them to prescribe her estrogen. Jail officers additionally wrote her up for ordering ladies’s garments, jewellery, hair relaxer, and even flowers from the skin, and for sporting her jail uniform off one shoulder. All these infractions — and, Farmer contends, in retaliation for her more and more efficient authorized advocacy — led officers to switch her from a medium-security jail in Wisconsin to the maximum-security penitentiary in Terre Haute, Indiana.
The jail in Terre Haute was a very harmful place, with rampant use of medication and alcohol and a big inhabitants of individuals serving lengthy phrases for violent crimes, Farmer wrote later in court docket paperwork. There, officers despatched her into basic inhabitants.
The outcome, she argued, was totally predictable. Lower than two weeks after her arrival in 1989, one other prisoner entered her cell and sexually assaulted her, she recounted in her authorized filings. He punched her, tore her garments and pinned her down. She tried to combat again, however when she noticed a selfmade knife, she mentioned, she relented, petrified of being stabbed. By the point he left, her face was swollen, her lips and nostril had been busted, and she or he was bloodied and humiliated.
Getting justice after a sexual assault is tough beneath any circumstances, however notably so in jail, the place a lawsuit is commonly the one recourse. So, she sued. Farmer wished the warden and a slew of Bureau of Prisons officers to pay her damages for her struggling. However first, she needed to show that they had been responsible for violating her rights.
The handwritten amended criticism from federal jail in 1991 by Dee Farmer. Filed a couple of months after the unique criticism, it comprises extra particulars and a extra fleshed-out authorized argument.
Writing with a felt-tipped pen on lined paper, Farmer argued that jail officers knew that “the plaintiff or any male-to-female preoperative transsexual, who has a female look…can be sexually assaulted at USP-Terre Haute.” The warden knew she was trans. He knew that her youth and female look would make her a goal, she argued. And he housed her typically inhabitants anyway.
For his or her half, jail officers argued in a short that Farmer had by no means warned them that she can be attacked. They mentioned they had been “not liable beneath the Eighth Modification except they know that an inmate is in imminent hazard of assault and resolve to do nothing.”
At the moment, in 1991, this was not settled regulation. The Supreme Courtroom had dominated years earlier that jail officers violated prisoners’ rights in the event that they confirmed “deliberate indifference…to a prisoner’s critical sickness or damage,” however had by no means clarified what “deliberate indifference” meant in different contexts or how you can show it.
Robert Loeb was an lawyer on the Division of Justice on the time of Farmer’s lawsuit, and he helped draft a number of the authorities’s briefs within the case. In a current interview with the Marshall Venture, he identified that the division’s Civil Rights Division tried to carry state and native officers accountable when their prisons and jails weren’t run humanely — so he and his colleagues weren’t unsympathetic to Farmer’s plight. On the similar time, “prisons may be harmful locations. Each time one prisoner assaults one other, you’ll be able to’t have jail guards, the director of the Bureau of Prisons and the director of the area being sued.”
As for Farmer, she argued that as a result of jail officers management nearly each side of the lives of these incarcerated of their establishments — the place they dwell, what they eat, what they put on, who they dwell with — jail workers must be held to a better customary than different authorities officers.
“It appeared quite common sense to me,” Farmer mentioned not too long ago. “Can you place any individual in a spot the place you recognize they’re going to be harmed? They haven’t any management over the place they go. It’s completely as much as you.”
That argument didn’t go nicely within the federal district court docket in Wisconsin, the place she misplaced. When she appealed to the Seventh Circuit Courtroom of Appeals, she misplaced once more, so she appealed to the U.S. Supreme Courtroom.
It was an audacious present of confidence for somebody who had by no means accomplished highschool, and there was no cause to assume her case would catch the justices’ consideration.
In her petition to the Supreme Courtroom, which she typed up in her jail’s regulation library, Farmer argued that it was fallacious to say that jail officers needed to find out about, and ignore, a particular menace as a way to be held accountable. She didn’t know a specific individual would assault her on a given day. Reasonably, her threat typically inhabitants was so apparent that officers ought to have recognized and brought precautions to guard her.
The Supreme Courtroom receives hundreds of petitions yearly and solely hears about 80. However Farmer bought a way that the justices had been critically contemplating the case when she bought a duplicate of a letter the Supreme Courtroom despatched to a decrease court docket, asking for all the document. So, she wrote to the ACLU in Washington, D.C., and requested whether or not, if the Supreme Courtroom accepted her case, it could signify her. The ACLU mentioned sure.
From the vantage level of in the present day, it’s arduous to recall to mind simply what Farmer was up in opposition to. On the time, it was authorized to be fired for being homosexual, and it could be for years. Trans folks had been the butt of jokes in big-budget Hollywood slapstick comedies. At a 1991 trial in a case she’d introduced demanding entry to feminine hormones, a choose instructed Farmer to face nonetheless as a result of he didn’t need her “sashaying round my courtroom,” as she recalled. (She misplaced.)
Behind the scenes on the Supreme Courtroom, a younger clerk for Justice Harry Blackmun named Sherry Colb efficiently urged her boss to take the case. Colb, who went on to develop into a preeminent authorized scholar, wrote in a memo, “Rape just isn’t a punishment that jail officers can expose or topic a prisoner to for violating jail guidelines.” Just a few months later, within the fall of 1993, the court docket introduced it could hear Farmer’s case.
Margo Schlanger was additionally a regulation clerk on the Supreme Courtroom that time period, working for Justice Ruth Bader Ginsburg. “In contrast to most state actors, who’ve solely detrimental obligations — all they should do just isn’t damage you — in jail, it’s totally different. They really have affirmative obligations to run prisons humanely,” mentioned Schlanger, now a College of Michigan regulation professor, summarizing Farmer’s argument. In different contexts, the place a public official could also be obtuse or silly for lacking one thing apparent, “not figuring out one thing inside jail is dereliction of responsibility,” Schlanger mentioned. That principle, which Farmer specified by her petition to the court docket — “it’s good.”
The day that her case was argued earlier than the Supreme Courtroom, in January 1994, was like every other day for Farmer. She spent it in solitary confinement within the federal jail in Florence, Colorado, the place she had been transferred after the assault in Terre Haute. She wasn’t allowed to attend oral arguments on the court docket in Washington, D.C., however the ACLU spoke for her.
An Related Press wire story overlaying Dee Farmer’s 1994 Supreme Courtroom case appeared in nationwide newspapers.
Elizabeth Alexander, the ACLU lawyer, known as her “she.”
Paul Bender, the federal government’s lawyer, known as her “he.”
For his or her half, the justices appeared to attempt to keep away from utilizing any pronouns in any respect. It’s arduous to think about now, however the effort to not misgender Farmer was an enormous deal on the time, Schlanger mentioned. Ginsburg often known as her “she” however extra usually, along with her heavy Brooklyn accent, simply known as her “Farmer.”
The justices primarily tangled with the query of what jail officers needed to know as a way to be responsible for “deliberate indifference.”
In early drafts of the justices’ opinions, which had been made public in 2004 after the dying of Justice Harry Blackmun and the discharge of his papers, the justices staked out many positions. Justice David Souter experimented with the phrase “willful blindness”: What if jail officers didn’t know one thing as a result of they did not wish to know? Justices Clarence Thomas and Antonin Scalia argued that inhumane and harmful therapy in jail wasn’t merciless and strange punishment.
Ultimately, in a unanimous choice handed down in June 1994, the 9 justices “kind of went down the center,” Farmer mentioned in a current interview. To be responsible for “deliberate indifference,” officers had to pay attention to a threat of great hurt and disrespect it. This strict interpretation received over the extra conservative justices. However the justices who wished to aspect with Farmer additionally claimed a victory. They set a comparatively low bar for a prisoner to show the official was conscious: “a factfinder could conclude {that a} jail official knew of a considerable threat from the actual fact that the danger was apparent.”
After which they despatched Farmer’s case again right down to the decrease courts to weigh whether or not, with this new customary as a information, the Bureau of Prisons officers had been intentionally detached to the chance that she can be raped when she was positioned typically inhabitants on the penitentiary in Terre Haute.
So, in 1997 — eight years after her rape — Farmer was in a position to confront jail officers for placing her in hurt’s manner, in a trial within the district court docket. “By that point, the Bureau of Prisons claimed that each one the data of the setting of Terre Haute — administrative detention and disciplinary data for the interval that I used to be there — had been destroyed,” Farmer mentioned.
After simply two days at trial, she misplaced. The jury didn’t imagine her testimony that she had been raped. Whereas Farmer v. Brennan led to a path for prisoners to hunt redress for abuses they undergo in prisons, it didn’t, finally, profit Farmer herself.
By the time she was launched in 2020, Farmer had served greater than 30 years in federal and state prisons, and she or he was legally blind from a congenital eye situation. (If different prisoners wished her assist with authorized filings, she mentioned, she requested for them to learn case regulation aloud as fee.) She had AIDS, and all of the accessible antiretroviral drugs had failed. Medical doctors gave her a yr to dwell, she mentioned. A Maryland choose finally lowered the state portion of her sentence to time served so she might enroll in a scientific trial of some new HIV drugs, which saved her life.
Dee Farmer exterior her house in Baltimore, Maryland.
Now 60 and residing in Baltimore as soon as once more, Farmer is soft-spoken and unassuming. She channels what may in any other case manifest as anger into Fight4Justice, the nonprofit group she based to proceed serving to incarcerated folks analysis and write authorized claims and join with attorneys. She is the topic of a forthcoming podcast about her life and work, and not too long ago co-authored a regulation evaluation article about Farmer v. Brennan along with her pal Dangaran.
She mentioned the present political ambiance, by which lawmakers are focusing on transgender folks’s rights, feels totally different from what she confronted greater than 30 years in the past.
“Prior to now, it was extra out of ignorance or lack of training,” she mentioned. “Individuals weren’t out to deliberately make you undergo.” Now, she mentioned, “it feels very deliberate and intentional.”
