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After living as a woman for 20 years, she was jailed with men

Kesha Williams went to Fairfax County’s jail in November 2018 as a transwoman and was housed in the men's facility. She's suing Fairfax County under provisions of the Americans With Disabilities Act. (Gigi Jackson)
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correction

An earlier version of this article said the Supreme Court found in 2020 that the ban on sex-based discrimination under the 14th Amendment applies to transgender status. The decision was under Title VII of the Civil Rights Act of 1964. This article has been corrected.

When Kesha Williams went to Fairfax County’s jail in November 2018, she had been living as a woman for two decades. At first, she was put with female inmates and given women’s underwear. But when she asked about getting the hormone treatments she had been taking for 15 years, jail officials learned she was transgender and had not had genital surgery.

From then on, she said in a federal lawsuit, she was housed with men, harassed by deputies during searches and ogled and groped by inmates when she was showering or walking through the jail. Her bras were taken away, she said, and she was told she couldn’t buy one at the commissary. Her hormone treatments were not provided for weeks at a time.

When she spoke to a counselor, she said, she was told “boys will be boys” and to just wait out her time.

Instead, before even leaving the jail, she contacted a lawyer.

“I have to fight for the next girl, every other girl who has to go through this,” Williams, 41, said in an interview. “You’re being physically, mentally abused."

Williams, who lives in Silver Spring, Md., is suing under a relatively new interpretation of disability law that has been embraced in some federal courts and met with skepticism in others. The U.S. Court of Appeals for the 4th Circuit is now weighing the case after a panel heard arguments for it in March.

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It’s part of a national legal push both for trans rights to be considered under the Americans With Disabilities Act and for trans women in prison to be housed with other women.

Amy Whelan, a senior staff attorney with the National Center for Lesbian Rights, said genitalia still determines housing in most prisons despite federal regulations and research showing the high risk of sexual abuse trans women face in men’s prisons.

“Jails are still very behind in terms of understanding how important it is to move people and understanding the medical issues involved,” she said. “It’s putting the safety and security of these institutions at risk.”

Lawsuits have led to changes in the D.C. jail and in Massachusetts; some states have proactively mandated inmates be housed according to their gender identity. But there has also been pushback to those policies, including a lawsuit in California arguing that cisgender women’s rights are violated.

The U.S. Court of Appeals for the 9th Circuit has ruled that an Idaho prisoner was entitled to gender-confirmation surgery under the Constitution, but the 4th Circuit is the first appellate panel to specifically consider the disability question.

When the ADA became law in 1990, “gender identity disorders not resulting from physical impairments” were explicitly excluded from protection from discrimination. Courts — including the first federal judge to review Williams’s case — have pointed to that language in dismissing cases alleging discrimination against trans people.

Through attorneys, Fairfax officials said the same.

“To say that circumstances alleged by Ms. Williams’ are far from ideal would minimize the struggles she and other transgender people face,” they wrote, but “her allegations are insufficient to show that she is a qualified individual with a disability.”

A spokesman for the Fairfax sheriff’s office, which runs the jail, said it would be inappropriate to comment while the case is pending.

Williams and others argue that the law’s authors misunderstood trans identity so thoroughly that the law’s exception does not describe it. Added at the urging of conservatives, the exclusions to the law also included pedophilia, voyeurism and exhibitionism under “sexual behavior disorders.” The desire to live as the opposite sex is no longer labeled by psychiatrists as a disorder to be treated; instead, the mental problem is the stress of being born in a body that does not align with one’s gender identity.

“The disorder that my client now has did not exist, at least diagnostically” in 1990, her attorney Joshua Erlich said at oral argument. “We must apply a modern understanding.”

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Determined to file a lawsuit, Williams connected with Erlich before leaving Fairfax custody. She had done brief stints in jails before. But she had never had an experience like she did in Fairfax, which she said arose from agreeing to help a drug-dealing boyfriend, who turned out to be working a sting operation.

“I did what I did, I’ll go to jail — but I’m being penalized for who I am as well,” she said. “They need to change their system; they have to understand we’re in a different time.”

In a supporting brief, a group of gay and trans rights organizations emphasized that gender dysphoria can be understood as arising from a physical impairment. “Gender dysphoria has a physiological origin,” they write, “an atypical interaction of sex hormones with the developing brain.”

Judges on the 4th Circuit seemed open to that argument but suggested there would need to be scientific testimony to back it up.

The plaintiffs argue that if the ADA is read as barring gender dysphoria claims, that would make it unconstitutional. The Supreme Court found in 2020 that the ban on sex-based discrimination under Title VII of the Civil Rights Act of 1964 applies to transgender status.

Williams’s lawsuit does not directly challenge jail policies, but Erlich said at oral argument that the jail’s procedures are evidence of mistreatment rather than an excuse for them.

Justin Jouvenal contributed to this report.

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