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Opposite Sex Strip Searches

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Bob Egelko reports in the SF Chron.:

A female jail guard's strip search of a male inmate was a "humiliating event" that violated his rights, a divided federal appeals court in San Francisco ruled Wednesday.

Such searches of a prisoner by a guard of the opposite sex are unconstitutional except in an emergency, the Ninth U.S. Circuit Court of Appeals said in a 6-5 decision.

The Ninth Circuit's decision in Byrd v. Maricopa Co. Sheriff's Dept. is here.  I actually agree with the prisoner, for once, on the main point.

In the background of this case is the dilemma of prison and jail administrators who will be accused of civil rights violations if they assign men and women correctional officers differently and constitutional violations if they do not.
Sex discrimination in employment was banned in the Civil Rights Act of 1964, the most important domestic act of the twentieth century.  It was a major leap forward, but it is not absolute.  There is an exception for "a bona fide occupational qualification."  When it comes to searching people's bodies, sex should be a BFOQ.  At airports, the TSA always has people of the same sex to do the pat-downs.

Allowing sex as a BFOQ for correctional officers may, of course, have unequal impact on women who seek that career.  There are lot more men than women among inmates.  On the other hand, there are probably more men than women among people who want to be correctional officers.  In any case, considering the whole employment sphere, the niches where sex can even plausibly be considered a BFOQ are such a small part of the whole that there is no danger of going back to the bad old days.

I do think Cadet O'Connell should get qualified immunity, though.  When one of the most pro-prisoner courts in the country splits 6-5, it's pretty hard to say the law in the prisoner's favor was "clearly established."

3 Comments

Do straight people have a right not to be searched by gays?

I don't think prisoners have this right.

I don't think a routine, 20 second pat down search of an inmate wearing shorts by a guard of the opposite sex qualifies as a "humiliating event."

The decision of this overbearing, pro-prisoner, Court--so eager to micromanage the minutiae of prison administration-is not likely to be replicated.

As a former prison employee in NYS, I must state that it can be a very difficult issue. Posts in a prison are generally "bid" and handed out by seniority.

If a female bids a post (eg., visit room) that requires a lot of pat downs, should they be refused it even though they have every right and ability to do it? This would bring more lawsuits from officers and their unions. The other option would be to have male officers posted there as well, meaning that one is paid to do nothing and the other does all the work, essentially paying two to do one job.

This decision is chaos.

The standard when I was there was same sex pat downs if available. If not, you get what you get.

The TSA is a poor example because they deal with law-abiding citizens. Convicted felons lose certain rights and I cannot see why this should not be one of them. If not, there will be very few areas where women could work. They could not work a housing unit because it means patrolling showers/bathrooms. Prison schools, hospitals, vocational shops, gyms, and nearly every building has bathrooms that need to be patrolled.

The court is essentially booting female CO's from prison.

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