Constitutional Law

11th Circuit reinstates suit claiming grandmother was sent to male jail because of menopause drugs

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A grandmother who is a lawyer and elected official in the Dominican Republic may sue over her placement in a male jail “in the face of considerable information that she was a woman,” a federal appeals court has ruled.

The 11th U.S. Circuit Court of Appeals at Atlanta reinstated the suit against a doctor and nurse who sent Fior Pichardo de Veloz to the male jail in Miami without a physical exam while undressed. The Miami Herald has coverage.

The doctor had misclassified Pichardo’s gender after the nurse noted that Pichardo was taking hormones and questioned whether she was taking the drugs to transition from male to female. Pichardo was actually taking hormones for menopause symptoms, as indicated by her medical prescreening file.

The 11th Circuit decision recounted Pichardo’s allegations and concluded that neither the doctor nor the nurse were entitled to qualified immunity in Pichardo’s Eighth Amendment lawsuit. The author of the Nov. 21 opinion is Judge Frank Hull, a woman whose name also may lead to mistaken impressions of gender.

Pichardo had been arrested in November 2013 on old drug charges when she flew to Miami for the birth of her grandchild, according to the Miami Herald account. The arrest warrant listed Pichardo as a woman, and she was again classified as a woman during a strip search.

According to Pichardo’s complaint, the nurse falsely told an officer in the medical unit that “everything fell out” during Pichardo’s exam, meaning that her penis and testicles were exposed. There was no basis for the statement, the appeals court said. The officer replied that Pichardo looked like a woman.

The doctor had asked Pichardo whether she had “all [of her] ‘sex parts,’ ” but he didn’t ask whether she was male, female or transgender before deeming her a male, the court said.

Pichardo had told the nurse she was a woman and told the doctor that she had all her genitals and had not had any genital surgery.

Because of the doctor’s reclassification, officials sent Pichardo to the jail, where she was surrounded by about 40 men and feared for her life. She later told an investigator she felt “psychologically assaulted because everyone looked at her as if she was a piñata.”

After concerned family members arrived at the jail, a new strip search was conducted, and Pichardo was transferred to the female jail. During the strip search, male officers were present and laughed at her, Pichardo alleges.

The appeals court said Pichardo had made out a plausible claim that the nurse and doctor were deliberately indifferent to her health and safety. The doctor and nurse were not entitled to immunity because the constitutional violation was obvious, the appeals court said.

“We conclude that at the time of this incident in 2013,” the appeals court said, “every reasonable prison officer and medical personnel would have known that wrongfully misclassifying a biological female as a male inmate and placing that female in the male population of a detention facility was unlawful.”

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