SANHO STEELE-LOCHART: Hello and welcome back! This next plenary session, unfortunately our last for the day: Transgender Rights are Disability Rights: Protecting Incarcerated Transgender Women and a New Frontier for the ADA.
Katherine Herrmann from the Erlich Law Office. We have Chelsea Gilliam. We have Eve Hill from BGL. Kennedy Holland.
EVE HILL: Not here yet.
EVAN MONOD: Hopefully will be here soon.
SANHO STEELE-LOCHART: Okay. We will have Kennedy Holland or so the crystal ball predicts. We have Evan Monod from the Arc of the United States. Thank you so much to our presenters. I apologize for a typo in my notes.
EVAN MONOD: That is okay. Thank you so much for that warm introduction. I am Evan Monod, a staff attorney at the Arc of the United States. Previously I served as the disability rights fellow at Brown, Goldstein & Levy alongside my mentor and Eve who is crying at my departure. I am crying on the inside.
So this panel is really about a case that Eve and I and our colleagues at BGL have taken on to really expand the ADA into the realm of protecting people who are transgender and also incarcerated. I think Maria Town at one of the plenaries yesterday set it up very well so I'm going to borrow from her. We are seeing a massive explosion of people with disabilities who are also identifying as transgender and nonbinary, and that is expected to increase.
I spoke about this with Gerald earlier today that sometimes it's easier to conceive of the Disability Rights Movement as Disability Rights Movements, sort of each encompassing strands of rich and a beautiful tapestry, and this is a new frontier in that fight and a new thread in that tapestry. So with that said, I'm going to turn it over to Chelsea Gilliam, who is --
EVE HILL: Katherine will start.
EVAN MONOD: Yeah. Katherine, if you want to start, our case at BGL heavily relying on a case calls Williams v Kincaid. Katherine, if you want to kick that off since you were a part of that.
KATHERINE HERRMANN: Sure. Absolutely. So we represents a transgender woman incarcerated and put through quite a bit. We brought a complaint under the ADA. She had been denied her hormone injections she had been taking for over 15 years. She had lived her life as a woman for about that same stretch of time. They denied her not only the hormones but some pretty simple accommodations. She wasn't permitted to shower privately. Her request to be searched by a female rather than a male deputy were denied. And simple items such as women's uniform and a bra were denied to her.
So we got involved, and at the district court level, we had a bit of an obstacle when it came to demonstrating that the gender dysphoria that Miss Williams suffered from constituted a disability or qualified her as a qualified individual with a disability under the law. And the problem there arises with an exclusion to the ADA back from when it was first enacted in 1990, and that exclusion bans -- apologies. And you can see from this list the nature of the exclusion and the discriminatory animus that is pretty apparent there. Transvestism is a term that's used, transexualism. And then along with these terms they also exclude things like pedophilia, kleptomania, pyromania, and so on.
So at the district court level, the judge found that this exclusion, which also includes gender identity disorder without a physical impairment, prohibited or disqualified Miss Williams from receiving the protections of the ADA. So that was our major hurdle. We appealed that case to the 4th circuit. The ADA I'm sure has been covered here extensively is intended to define disability broadly and to define this exclusion narrowly.
So at the 4th circuit level, we needed to demonstrate that gender dysphoria is categorically not the same as a gender identity disorder as defined in the exclusion to the ADA. When I say "as defined," it is simply listed in the exclusion. There really is no definition provided. So gender dysphoria is a relatively newly recognized diagnosis. It was added to the DSM in 2013. It is significantly different than the prior diagnosis of gender identity disorder that is found in the statute. Back in 1990 with the gender identity disorder diagnosis, it essentially pathologized being transgender rather than gender dysphoria which is this clinically significant distress that arises from the incongruence between the gender that a person identifies with and the sex that they were assigned at birth.
So in making this distinction, we really had to demonstrate that not only did gender identity disorder as it was known not really exist anymore, but that gender dysphoria was categorically different. And a huge distinction there, or very important note, would be that not all trans individuals suffer from gender dysphoria. Gender dysphoria is a diagnosis that is -- apologies -- I guess sort of unique to transgender individuals but it is not one that applies to everyone within that class of people. I like to make that distinction for obvious reasons. We're not trying to portray being transgender as any type of disability in itself. It is the clinically significant distress that transgender individuals can but not necessarily experience.
We did at the district court level, the judge looked at this gender identity disorder exclusion and said it applied to the gender dysphoria that Kesha Williams was experiencing, and that therefore she was not a qualified individual with a disability. The 4th circuit on appeal reversed that and found that the diagnosis of gender dysphoria is categorically different, and that trans individuals who are incarcerated are in part of the class of individuals who the ADA was designed to protect.
I'll pass things along.
EVAN MONOD: So I think now we wanted to hear -- I don't know, do you want to go first? So I think now we wanted to hear from Chelsea about her experience. So just to set you up, Chelsea, you are one of the plaintiffs in the BGL case, and you are more importantly one of the bravest and most lovely people I have ever had the pleasure of meeting. So I think my first question to you would be, given what we just heard about sort of the intersection between gender dysphoria and disability, did you ever consider yourself a person with a disability before starting this case?
CHELSEA GILLIAM: Honestly, sort of. From just knowing, well, just the way I was raised. In my family, they wouldn't say the F word or the G word. They would say "Oh, he's not well. He's sick." So I think that I've always associated it with a tic sort of, as a very young child. And coming to terms with it.
EVAN MONOD: And can you describe a little bit about what your life was like growing up and your life prior to being incarcerated?
CHELSEA GILLIAM: Well, once it was out of the bag, I was still under guidance of my parents, but they gave me basically what I need to put my best foot forward. I was made aware that I was trans. I was raised to the best of their abilities because they knew what I would be facing outside of their door, and I think that was one of the most important things.
EVAN MONOD: So when did you first come out to yourself and maybe to your parents?
CHELSEA GILLIAM: At 11 to myself. Maybe like 10. Probably 12 I think was the first time I got caught with the shoes on or something. And 13 was the weird stage, like what are you doing! He's not well! Don't pay him no mind.
EVAN MONOD: It's an awkward age.
CHELSEA GILLIAM: Uh-huh. So 14 is when it just all came to a head. And my grandmother was the first one to step in. She's since passed. She was the one who stepped in and was like, talked to my mom and dad, like, it's not a return on this. So if we don't want this thing to go straight downhill, we have to do what we have to do to make this person happy and accept this person. What was acceptable as far as like my clothes. You know, I did get some girl things, but certain things. Skirts and things like that were kind of out of line. But I was raised to love myself. I was.
EVAN MONOD: And then do you think that grounding helped you when you became an adult and you were able to take those first steps into adulthood?
CHELSEA GILLIAM: That grounding helped me from the moment I stepped away from them, around certain family members that would slide comments and verbally abuse me. And school, that's where it was most important because that's where I learned how to really put my foot down and be the person that could be like, I don't care. Even though I would die inside, those embarrassing moments or those moments of shame are long since dealt with, since like the 7th grade. For me personally. And it is still hard, but it is something that's very familiar, like okay, I know what this is, I know what to do. I know you. You're nothing new. I can handle this. And now just never let people walk over top of me because that's what my family taught me.
EVAN MONOD: I'm glad to hear that you have that grounding and you had that level of support. Because I know for many other trans youth, that's not necessarily the case. I want to go to the facts that led us to our case. And I'm mindful that you are an incredible storyteller, and I'm also mindful that there are a lot of very difficult details here. So I guess content warning for people in the audience. We are going to be talking about some difficult things, at least for this next part.
So to the extent that you're comfortable and to the extent that you want to share, what was your experience like I guess from the very beginning, from the moment that you were brought into the Baltimore City correctional center, BCCC, what was that experience like?
CHELSEA GILLIAM: Well, I will say that this time, the last time, was not my first time. But it was the first time I had been there with a sober, absolutely sober mind, and a mind of trying to claw my way back to the person that I know that I am rather than the person that everyone needed me to be. You know, we develop thick skin and we are prone to violence. So in order to protect ourself, you know, physical things.
EVAN MONOD: Sure.
CHELSEA GILLIAM: Like the 100 rule. If you do something so many times, you eventually get better at it. So of course I know how to defend myself. What was the question again?
EVAN MONOD: It's okay. So you were brought to --
CHELSEA GILLIAM: I'm okay.
EVAN MONOD: What I guess, what was your reception there? How did people treat you?
CHELSEA GILLIAM: When I immediately got there, I was greeted with a COVID test. And the lady that did the COVID test, her reaction was, what the... is this? And then the police, they laughed, like tell me about it. Although it was undertones of comments, I mean, of compliments, it was still something that was like, now why you got to say that? Like and you said it and you made sure I was in earshot of it. That's a certain, like who do you think you are?
Once we got past that point again, with the guards, they yelled in like "We got one coming in!" And then they all came to like this little glass wall thing, like you're inside of this box. And it's like I guess the first viewing of it, when they're taking you in and walking you through the metal detector. They all came, and a few guards were like saying some things, immature things, the men. And the women. It was just like kind of school all over again. Like stop, don't say that, leave them alone. Like no, because... like these people are not at work.
When I get there, and I get to the changing room, that was like something out of this world. I was like, oh, no, I don't want to be checked by him. Regardless of whatever reason I said it for, it's still in my rights. I don't even think that they knew that I had that right. He insisted that he checked me. And I will mace you and da da da. Like oh, my gosh, let me just take the stuff off. So I just took everything off, whatever. But by that time, because he raised his voice the entire time, it drew attention. So other guards came in to see. And I then was like, I don't want everybody in here. I was told to shut up. After that, I was placed in a cell, and I can't really remember how exactly I got upstairs at that point.
EVE HILL: You were placed with men?
CHELSEA GILLIAM: Yes. Yes. Yes. And I told the officer, who was not American, "I don't go in here." And I was told "You do go in here. You do know what you are. You do know where you are. Step in." And when I tried to refuse, again, with the mace, "Step in." Stepped in, and some names were called. I was immediately asked to stand by the door, like no, you cannot sit down in here, you have to stand by the door. Although it was looks of like maybe ooh, ahh, these are men, these are not compliments.
EVE HILL: Harassment.
CHELSEA GILLIAM: Yes, it's harassment. I step by the door. I can't remember how long. And then I remember being upstairs. When I got to the floor, I was -- they were told that I can't go in here, I can't go in there, and there were free cells, but they just wanted to double everyone up. I couldn't bunk with this person or with that person. I wasn't interviewed when I got there for being transgender. I wasn't taken in under transgender, under a trans person. I was taken in as a male. And I was treated as such. And no matter what my physical appearance was, and it was kind of like making me go crazy because this is not something normal. They would look right at me and say
"How can we tell? I didn't even know." There's no mirrors in there and it may sound shallow, but I was like, what the fuck? Like honestly, I was starting to panic. In my mind, I'm like, you really can't tell? Are you serious? And it was dozens of people saying this!
EVAN MONOD: The same was true for your hormone treatment.
CHELSEA GILLIAM: Yes. I wasn't interviewed. I didn't talk to PREA. I didn't get a card. Although when I did get the card, they didn't even know what that was. That's another story. So I didn't speak to PREA. In the search room, my bra was taken and it was not replaced. And although I was not taken in under my trans identity housed under that, I was still, I still got the penalties of being a transgender. Like oh, you don't have a sports bra on? You're going to get a ticket. You need to put two shirts on and your yellows, and then I would sweat profusely.
Those are just some of the things that were going on. And I remind you again, I cannot see myself. And that was the part, that was the most hardest part of this, like how can't you tell? Like you know what I mean? Like okay, if I'm not trans, if you don't think I'm trans in any way, if this is a game we're playing, you cannot tell that I'm LGBTQ? And then the answer would be "How would I know?"
It's like, so you think I'm a regular guy? Like honestly, and it may seem like something small to someone else or someone that's not in this predicament, but I assure you that this drove me crazy. I thought about it like all night, that night. Like what? It was one of the hardest things.
EVAN MONOD: Thank you so much for sharing that. I know Kennedy just arrived. I don't want to like ambush you, Kennedy.
KENNEDY HOLLAND: Please do. It's my favorite thing to be.
EVAN MONOD: Yeah, I knew that. So I'm going to rewind a little bit and sort of pose the same question that I posed to Chelsea. Could you describe a little bit about what your experience was like growing up, when you sort of first realized you were trans, what that experience of coming out to yourself and to your family was like?
KENNEDY HOLLAND: I would say coming to an understanding of trans didn't come until later because that verbiage came later on. I'm a child of the '90s so there were other terminologies for things of that nature, and it was showcased or presented in other ways, like the Jerry Springers and the Maurys and all that kind of stuff. So I grew up in that era.
I'm originally from Washington, D.C. I grew up there with a two-parent household. I have a little brother. Very religious.
There was never a question to myself of who I was or what I was. It was not until the formative years that it was met with opposition to where it was, okay, there's a difference between me and whoever. And that was very difficult, especially growing up like I said in a religious household. Not to call the religion out, but it was very strict and very by the book when it comes to alternative lifestyles or other ways of living or being. They teach free will but they don't let you live it. You have to go by the book.
So that was very... you know, I was a bright and intelligent young lady growing up, and that was very hard for me because I felt like I had an understanding of a lot of things that I wasn't able, or I wasn't allowed to express and convey to others because I grew up in a, my way or the highway, I'm the parent, you're the child household. So even if I was to, well, when I did finally at the age of 13-14 decide to start expressing myself due to, you know, hormones going crazy and all that stuff, that's when it was immediately met with opposition and then I was removed from my home. My parents put me out of my home.
And that's when I came to Baltimore and I met people like Chelsea and some other people and that's when I gained an understanding of this is actually possible to exude on the outside more so than just the inside. Because like I said, it was never a question of, you know, when people had the conversation of transness nowadays, I always say, tell me when did you know who you were. And they always like, well I always knew. It's like, exactly. They say God makes you the way that you are. I don't think that there was a mistake, I don't think that there was some type of mix up. I just think that's my story and my journey in life, to be a woman of trans experience.
But D.C. is a very LGBTQ friendly area. Baltimore not so much. Especially back in those times. But still oddly enough, it was almost a little easier then when it was a little more taboo than it is nowadays because it's so political and such a hot button topic for people. It's causing way more trouble than it is helpful answers to solutions to these issues that aren't really issues.
EVAN MONOD: Yes. So I'm going to move things along a little bit. Can just tell us a little bit, just for a few minutes, about your experience while incarcerated?
KENNEDY HOLLAND: Oh, it's like Disneyland.
[Laughter]
No, it was very -- it was that meeting of opposition from society.
EVAN MONOD: Right.
KENNEDY HOLLAND: Times a million because I was incarcerated with medium to maximum security people. I wasn't in a minimum facility. So I was in prison-prison as they say. It was a constant mental abuse that they didn't even understand that they were placing upon you because you wake up every day, you're the green thumb out of literally everybody. Then you are met with verbiage and language about you, whether it be a conversation with you or about you or in passing. It's always, "Oh, that's the boy. That's the boy. That's the faggie." Excuse my slang. That's, you know, amongst inmates.
But then when you go to the administration who has protocols, rules, and guidelines to follow, they purposely meet you with opposition and hatred and disgust and disdain for you. When it's like, you're just here to do your job. I didn't force you to become a correctional officer; you chose to be here and you're choosing to be here and work your job to bring me miserability in this terrible situation that you would be in. So it was abuse. It was abuse. Mental, emotional abuse.
Thankfully I was not met with physical assault in the form of any kind of sexual assault. Came very close, and it came early in my incarceration which also was another wake up call. Because you kind of live there. That is now your society. That is now your home. So you live there on a daily basis. So even though it gets hard and it is a day-to-day struggle, you get comfortable in the workings of the incarcerated people.
And then it's like, oh, no, wait, you have to be treated different from everybody else but yet like you have to shower alone, you have to eat alone, you got to be in the cell alone, you have to move alone, you can't be walking the hallways with people. But then you turn around and you call me men and he and him and you wouldn't be here if you weren't a man, if you didn't have a penis, if you weren't a boy. Just on and on. Like you're contradicting yourselves because if you're going to say one thing...
There was a time when I was written up by an officer who, it was a female officer who was highly offended that I got out of the shower and had to dry myself off and they forced us to take our showers last, with everybody locked down, which means that they're now doing their last counts and making sure that everybody is locked in their cells but you know that you just let me out. And then she comes on the tier to do her rounds and was irate that she had to walk past my cell and see me drying off, to the point where she wrote me an infraction. And in the infraction as I'm reading it, it was he, him, his, oh, he didn't have enough clothes on. I'm like, when I went up for the ticket, I'm like, you walked past 48 other cells of men in boxers.
I'm a man, according to this paper. So when you walked past and I had on a towel and underwear and things of that nature getting out of the shower that you just came from, what's your issue? You can't have your cake and eat it too. I found this one day, I'm this one day, then let me be that and live in that until I'm gone. But if not, if you're going to treat me like something else, then treat me like something else according to your rules you already have in place. So that was incarceration.
EVAN MONOD: Moving back to Chelsea for a little bit, hearing that from Kennedy, do you feel like you experienced a lot of the same?
CHELSEA GILLIAM: Absolutely. I experienced just being shamed and being different. I was exactly the same from in my experience, I was exactly the same but different. So it was just like a constant push and pull game with myself. And they did it with me openly. Like massively, like very seldomly did officers refer to me as "she." And when, especially some of the men officers, when they would do it, they would automatically correct themselves and say "oh, him." Again, "the boy one."
KENNEDY HOLLAND: Correct others when they address you the way you should be addressed, I had an officer stop everyone in the middle of the yard because he overheard someone say "Oh, yeah, she's going to do it." "There's no women in this facility!"
CHELSEA GILLIAM: I definitely went through that. I definitely felt that. And I just went into I guess like survival mode where I had to make myself small enough for that world because it was something that I had to do and I had to get through, I had to maneuver. So I had to, in order to survive in there, you have to play politics. They leave you to your own vices because a lot of officers won't do their job and won't address you correctly.
And as a human, you want to find comfortability and security in a place where there is none. And you are being shown every day that we're going to take care of everybody else but you, you, my friend, you are on your own. You know what to expect when you come here. I definitely can agree 100% with what Kennedy said, and I definitely know that we can line up every trans woman that has ever been in jail and they would agree. Exactly down to you have to become who you are in there or become who they need you to be and then work your way up. That's it.
EVAN MONOD: I'm not sure how to follow up with that. That was so well put, as usual.
EVE HILL: Well, let's talk about the case.
EVAN MONOD: Let's talk about the case.
EVE HILL: So Chelsea came to us first, and her story was so outrageous. So she has downplayed both Kennedy and Chelsea were housed with men throughout their stay. They were not often allowed to shower separately. They were denied their hormones. They were harassed, assaulted, threatened constantly, experienced sexual assault. They were harassed by inmates and guards alike. It was a constant struggle.
I was so naively shocked by this and knew about the Williams case that of course we would go and take this case. And, you know, there's just something wrong, it must be a mistake, right? It's all a mistake. They couldn't possibly be doings this intentionally. Their policies even say they don't do this intentionally. So we start the case. The other piece that Chelsea hasn't talked about is, they transferred her. To protect her, they kept her in solitary confinement for 3 months. How protective was that?
CHELSEA GILLIAM: It was punishment.
EVE HILL: That's right. That's what it's for.
CHELSEA GILLIAM: I wasn't -- after my incident, we'll call it, I was just moved from the space I think a day or two later but after the incident, I can't even tell you how long I laid in that bed. So I don't know what day it was when I finally arose and everything kind of went haywire where I was. And I was moved and then I notified them right then and there on the spot. I was taken down to central booking because I needed to find new housing, and I was with two other members of the LGBTQ, just regular guys. And that was very comforting. That was one of the things that was most comforting to me. But I gave my statement. I was slightly interviewed. Once I was slightly interviewed and I got a chance to talk to I think more than one officer and more than the officers that would be on the floor because the officers on the floor, many of them, again, are not American.
So when I got down to central booking and I talked to them is when I think that was kind of like they stepped over to the side and they had like I guess the Oprah Winfrey conversation, like the Caitlyn Jenner conversation, like I don't know, I think this one is a dummy. So then after that point, I was allowed some hormones, some mental health treatment, but I had already been there for so long. I mean, so long without it. And any grievance that I wrote or sick call that I put in was I want to say purposely ignored. I don't know whatever, because when I got down there, they had all of them but they had never responded.
EVE HILL: So we had a constant, constant barrage of mistreatment with no responses whatsoever. The closest thing to a response is "we'll put you in solitary for 23 hours a day and punish you for speak up about your treatment." This violates every standard of care. This violates the Maryland department of correction own policies, pitiful as they are. This violates the prison reg regulation act, PREA, the trans healthcare standards, it violates everything.
So we filed suit, we did a press conference, Chelsea was there, and we thought, okay, this is it. And then we started to hear from more and more and more and more women and they are doing this as a matter of policy and practice to every trans woman in the place, in the state. So we then met Kennedy. And Kennedy joined our case. So we filed challenging, not just -- thank God for Williams. We had dealt with the definition part. We've got the definition. We've got coverage. Awesome.
Now we're going to challenge everything else. So starting with housing with men. Part of the treatment for gender dysphoria is to be able to live who you are, to live who you are with who you are, be treated who you are. So therefore housing a woman with men is a violation of the standard of care. We challenged the Department of Corrections' failure to protect Chelsea and Kennedy. And Evan will talk about Chloe.
We challenged their treatment, their placement in solitary as a protective measure, which is not a protective measure but a punishment. We filed for cruel and unusual punishment, deny of care and protection, under sex discrimination. Because my friend Kobie says one claim is enough. One claim was not enough. So we filed under 1983 for sex discrimination and under the ADA and Section 504 for discrimination. So they discriminated, flat out, by denying medical care on the basis of gender dysphoria. They discriminated flat out by holding women in administrative segregation on the basis of their disability. And they discriminated flat out by their staff and by harassing them by staff and by allowing harassment and threats and actual injury by other inmates.
And then they failed to accommodate by housing them with men. Should have modified their policies to house women with women. Seems like an obvious situation to me, but no. And they also failed to accommodate by allowing separate showers, which they even when they were ordered to do so, they failed to do it.
So we added Kennedy to the case a few months later. Yea. And then we've added Chloe Grey, who is still incarcerated and therefore can't be with us today. And Evan will tell us about Chloe's experience and the TRO that we sought on her behalf.
EVAN MONOD: So I should say too, when we added Kennedy, Kennedy was still incarcerated at that point. And we thought it was really important in order to have an injunctive relief to have a person still inside experiencing all of these terrible deprivations. And wouldn't you know it? They just decided to release Kennedy. Which was great. We're so happy to see that. But --
KENNEDY HOLLAND: Unfortunately I didn't.
EVAN MONOD: But we're so glad that she's out. That still left us with the predicament where we have all of these stories, we were getting more stories and interviewing more women every day who were still incarcerated, who were still experiencing these same deprivations. One of these women is Chloe Grey. Now, Chloe is incarcerated for life on a life sentence for a double murder of two women. That would become an important detail later once we get to the state's response.
So Chloe is interesting because she has always been trans. She's always felt that she is a woman. But she decided to come out a little bit later in life while she was incarcerated initially at the Western Correctional Institution in Maryland. So she came out in late 2021 and started receiving hormone treatment, but they were still housing her with men. They were still housing her in a situation that was fundamentally unsafe for a trans woman to be in.
And I'll just say too that this is not new. Farmer v Brennan, the case that established that prisoners have a right to adequate medical care involved a trans woman in prison who was incarcerated with men and that was back in the late 1980s so this is not a new thing by any means. So Chloe, through her grit and wits just off the charts intelligence was able to be transferred to Patuxent institution which houses a Georgetown University bachelor's program for incarcerated individuals, and that's where Eve and I met her.
Even though she made it into that program and was doing incredibly well, she was still housed in administrative segregation, allegedly for her own safety. So Eve and I interviewed her in late October of 2023, and she decided to join our case. And then all hell broke loose. The retaliation was --
EVE HILL: Spectacular.
EVAN MONOD: -- spectacularly awful. Constant physical and verbal harassment. Saying things like -- they would say, we know you joined that lawsuit and we don't care. You think a lawsuit is going to stop us? You're in our house, you play by our rules. And this included even like directing a heater into her cell to blast heat into her cell to make her uncomfortable.
And the upshot of all of this was that she also started getting charges for the first time. She had been incarcerated for several years at two institutions with no issues. All of a sudden she started getting rule infractions for events we contend did not happen. And then wouldn't you know it, that's just another excuse to extend her stay in solitary confinement.
So things really came to a head in mid-November. She's been on the case for 3 months. Again, content warning here. Then Chloe was sexually and physically assaulted by a guard. So she was able to advocate for herself, incredible advocacy, to get out of the prison and be sent to Mercy Hospital for an evaluation. So she had a full evaluation done and pictures were taken and it was pretty clear that an assault had occurred.
And based on that, I remember being at home and hearing the news and Eve said to me, we have to step in and we have to act. So we put together a TRO -- ("I don't see an app for that. You need to download one." Yes, thank you, Siri. There is not an application for a temporary restraining order. That is true.
SPEAKER: Not yet.
EVE HILL: But there should be.
EVAN MONOD: There should be. I agree. So we decided to put together this TRO and we put it together over the span of 3-4 days, and we essentially wanted the court to intervene and say, enough. They had to stop retaliating. They had to house her with women according to her gender identity, which is not only a nondiscriminatory way of housing her, but it is also the safest way to house her.
So we got in front of a new judge, Judge Max, who is a very recent Biden appointee. And over 3 days of hearings by Jessie Weber, yea, Jessie, they were able to successfully advocate on behalf of Chloe, and we were able to get that temporary restraining order. And I should put a note in here too for what the state said during those particular hearings. And what's really interesting, I was sort of reading back the briefing in preparation for this discussion, and what was really interesting about that was they really didn't fight us on the substance. Right? Their main argument was --
EVE HILL: Felt like a fight.
EVAN MONOD: It felt like a fight, but really their main argument was, we are a prison and because we are a prison, we are allowed to do whatever we want.
KENNEDY HOLLAND: And I said what I said.
EVAN MONOD: Exactly. Thanks to some incredible oral advocacy, we were able to get some significant wins in the TRO that literally left Eve on the floor. So what were we able to get? As any employer in the room knows, to get a TRO, you know substantial likelihood on the merits. So we were showing that on the ADA claim, 8th Amendment, and 14th Amendment claim, which was the most incredible one of all because as anyone knows, it is really, really hard to get an 14th Amendment claim, especially in a prison context.
So what did we get? We were able to get them to videotape Chloe's hormone treatments so that essentially they had to show and prove that these were adequately administered because their records said that they were administered but Chloe as she was throughout the entire TRO hearing was in fact saying, no, they would just markdown that they had given me my hormones and then just walk away laughing.
I should stop here and just say too that we would not be here, we would not have gotten this far without Chloe and her incredible self-advocacy and her incredible ability to be heard and be seen. Yea.
[Applause]
EVE HILL: We will tell Chloe. She is not having an easy time.
EVAN MONOD: She is not. So we were able to get that piece down. The housing side of things, he didn't initially, the judge didn't initially want to order them to house her with women. He felt like at this stage that's a little too far. But he saw that in the Maryland policies, there contained a clause that basically said you had to do an individualized assessment of each transgender individual who would come through booking, which as we heard from Chelsea and a little bit from Kennedy, that was not done. Right, it does not happen. So the judge said, you've got to follow your own policy and you've got to make that individualized assessment and you have to see if based on that individualized assessment this individual should be housed with women or with men.
So as far as we know, that's the first time they've ever been ordered to conduct that assessment, which I think is a big win although we will see later on how that has proved difficult. So it was a major milestone and a major win and we felt like we had gotten our foot in the door. And then --
EVE HILL: Days later.
EVAN MONOD: -- days later, the state puts out its response to the order and to their individualized assessment order. And the state says, well, you know, we don't know. It's just so difficult to house her with women because, you know, even though we acknowledge that she's a transgender woman and has lived this way for years, she has a certain piece of male genitalia.
So based on that, no, we can't house her with women. She's a danger to women. And she's also a danger to women because she murdered women. And though as we were quick to point out, there are plenty of men who are incarcerated in male facilities who killed men. There are plenty of women in women's facilities who have killed women. And vice versa. So how does that make a difference.
And so wouldn't you know it, based on their, quote/unquote, individualized assessment, they decided not only can Chloe not live with women, she also has to be sent to North Branch Correctional Institution, which is the worst of the worst. That is a super max facility that houses the most dangerous criminals in the state of Maryland.
EVE HILL: All men.
EVAN MONOD: All men. And not only that, but we are going to throw her in solitary confinement again for months while we make a decision about whether or not she's going to be housed in the general population.
EVE HILL: Also 3 hours away so those pesky lawyers...
EVAN MONOD: Those pesky lawyers. To give you geography, it's closer to West Virginia than it is to Baltimore. So that's really what we were also contending against. So the state put out its decision, or its, you know, notice to the court in January, and Eve being Eve said we will not stand for this, and rightfully so, and so we put together a motion to enforce the TRO because we felt like they hadn't properly done an adequate assessment because any adequate assessment would conclude that Chloe deserves to be housed with women.
And here's a fun little practice point too. You can kind of make a motion to do anything. So I was like, you know, basically they motioned for I should get what I want. I did my research behind this like, huh, there's never been a motion like this before to enforce a TRO in the 4th circuit. Sometimes it's to enforce a settlement agreement or to force a permanent injunction, but never something at this procedural stage, but, you know, let it never be said that Eve Hill is not a trail blazer. So --
EVE HILL: It's not an Eve Hill thing.
EVAN MONOD: No, I'm just deciding to praise you because it makes you uncomfortable.
KENNEDY HOLLAND: Eve! Eve! Eve!
EVAN MONOD: Yeah, exactly. So then we decided to put that together, and I'll let Eve pick up the rest of the thread with what happened because that was filed at the end of February.
EVE HILL: And he abandoned me!
EVAN MONOD: She will never forgive me. And I started my new job at the Arc in early March. So Eve what has happened since?
EVE HILL: We finished briefing the motion to enforce yesterday. So it's fully briefed and we are waiting for the judge. They have continued to just torture Chloe since, throughout this time. Including the only thing that's working is her hormones are being delivered because they have to be delivered on video or they'll be in trouble. But nothing else is working. So she's having a very difficult time, but she is without a doubt the strongest, bravest woman that I have ever met in my life. And so it's an honor, really, to represent all of you. I can't get over how privileged I am to be able to do this work.
So we wait and see. And we hope greatly that the judge will do the right thing. The great thing about this moment is that judges and the Department of Justice and lawyers around this issue are doing the right thing around the country. We're not the first one. We've got Williams. We've got disability rights Washington. We've got a statement of interest by the Justice Department. This is a moment when people are seeing across the country, and judges are seeing across the country, that the way we've been doing this is not right and that the ADA is a powerful tool to make it right. So it's really an amazing time to be doing this work. And I think we could take questions. Or have I forgotten things?
EVAN MONOD: No, I think that pretty much covers it.
CHELSEA GILLIAM: I would just like to add one extra thing for everyone that is hearing this story for the first time. It is not easy to stand up here and say this happened to us, especially being trans people, because we are the one -- we were in that one lane that unlike probably everybody in this room, we know how to roll with the punches. Very seldomly do we need assert ourselves in violence, argue back with people, or just you push, I'll push back. We are the one race, or existence of people that if you would rather it be no one sit in that seat, you could sit here alone, I'll find somewhere else to sit.
And as trans people, it's just not easy, especially for myself, to basically pour myself out to everyone here because I really don't know you and I have to be strong. I've gotten myself this far from rolling with the punches and staying calm. So if we are coming off a bit jokingly or --
KENNEDY HOLLAND: Better that to keep from crying.
CHELSEA GILLIAM: Or people say I'm a little dry. Just that is a defense mechanism. What you are seeing is our defense mechanism at play. At its best. Because it's so many people here. And without us falling apart, we have to convey a message to you all. And that's all I wanted to add.
[Applause]
KENNEDY HOLLAND: That was really beautiful, Chelsea. And factual. But as I said, it is really, really extremely hard to sit here. Just to sit and listen, to recount. As I was sitting here, it was multiple instances that flashed in my head that I literally blocked out. And, you know, what woman in here has had to stand in front of a group of men and strip naked on video camera? What woman in here has ever been, and I pose this question to everyone as a general statement, but any woman in here, please, raise your hand if you were in a restroom, in a mall, anywhere, where you were assaulted by a woman that came at you with a penis. You know. Like it does not happen in reality. These are things that people whisper and make up and falsify or go --
CHELSEA GILLIAM: And the internet. The internet has converted it to the main stage where some people are deliberately on there converting us to the perversion that we are trying to get away from.
KENNEDY HOLLAND: And the stories that speak the loudest unfortunately are the ones where trans woman is in a sorority house exposing themselves to women and then you see the trans woman, and it's like, that's Lumber Jack Joe. And it's no offense to women experiences of the whole spectrum, but in all seriousness, it does not happen. I don't know any trans women that is out here to hurt any other woman. Because we get it. We get raped, we get assaulted, we get abused, we get cheated on, we get lied to by men, we get cast out from our families. We could go on and on with the shared experience of womanhood. No, we don't have babies and menstrual cycles, a blessing and a curse, I can understand. But we're not out here to harm other women. So please, please, stop the narrative, when you hear it from others, please say, hey, I met two trans women that you know weren't that bad.
They might have a rocky journey or they might have a rocky road or a history and a story, but all of those things came from other survival that we had to lean on. I was cast out of my home at 14. What was I going to do but become a child of the streets? And eventually lead down that road? It's very unfortunate, but it happens time and time again because we're not getting the love from the reality of the situation. We're getting secondhand information, all brand of feelings and emotions towards something that people have no idea about, people are very uneducated about, and instead of trying to just find common understanding and common ground, people would rather meet it with disgust and disdain for it, unnecessarily. So I would hope people take that, especially the women in here, like we're not out here to hurt you. We're all riding on the same team.
[Applause]
EVE HILL: We have time for questions.
EVAN MONOD: We have plenty of time for questions.
SPEAKER: Hey, it's Julia again. I'm so sorry for always asking a question. Brown hair, curly, brown eyes. I just wanted to actually, so I am nonbinary. I do not necessarily identify as trans, but I started at University of Baltimore this year and we just want to echo our thank you because you have paved the road for us to do this work at a law school. But to the lawyers I want to address something that comes up a lot and it's when we do incarceration work in particular, not just trans incarceration. Specifically incarceration where when we are deciding to bring lawsuits, I think it's really important, I wanted to just make sure for all lawyers here we understand the importance of looking to grassroots people to help against retaliation.
There's a lot of things you can do on the front end to prevent it. So I'm assuming you guys have already done that because I know your practice but I wanted to highlight that for the rest of the people in the room to make sure that we are practicing that holistically so that we are avoiding as much as possible what is happening to Chloe which in this case couldn't have been avoided; it just happened.
EVE HILL: Thank you. That's a good point. Really appreciate it. We have questions here and here.
SANHO STEELE-LOCHART: May I jump in? All right. Excellent. People were just whispering to me to raise my hand and we were just having a back and forth that I assure you that I don't need to because I am holding a microphone. Microphone for the win. My first question, which goes specifically to Chelsea and Kennedy, I was wondering how are you doing now? To the extent that you're willing to tell us.
CHELSEA GILLIAM: Again, sometimes I struggle with it because I can't really dive into anything. If someone calls, I try to like I'm all in that conversation. I'm still very sensitive to keys, loud sounds. Sometimes large groups of people, like I'm getting better at it. I kind of almost had a meltdown during the press conference because I had only seen one way in, we were all the way up in this tower again, and it was -- I am just taking it one day at a time. But I am very still sensitive to certain things, I'll say.
KENNEDY HOLLAND: For myself, reacclimation has been extremely hard. Because of the lawsuit, I was close to parole and they were getting wind of the lawsuit around that time. So I was able to get out, but unfortunately getting out, instead of them giving me my documentations like birth certificates, social security card, medical files, they gave me an empty folder and just let me out the door. So I was met with nothing. I literally did not exist. I came home in August of 2023, and I just got my identification a month ago. So I did not have an existence literally for months. So that's been really, really hard.
Reacclimation has been hard for anyone who were incarcerated. There are so many triggers. Keys, as Chelsea say. When I walk down the street and see barbed wire, it's like, no, those are roofs of homes. It's definitely been a journey, but it's coming along. Thank God.
SANHO STEELE-LOCHART: Thank you for sharing.
KENNEDY HOLLAND: Thank you for asking as well.
SANHO STEELE-LOCHART: Yeah, I just, I'm so sorry. I know, yeah, I'm so sorry. My next question, my last question would be for Eve and Evan. I'm wondering how are trans men being treated?
EVE HILL: That's a really good question. And there are very few trans men that we've been able to identify in the Maryland system. And they are so far being housed with men. So it continues to be a concern. But we don't have specific plaintiffs and I don't have specific stories.
EVAN MONOD: I'll just pick up that thread too.
EVE HILL: I mean they're being housed with women. Sorry.
KENNEDY HOLLAND: Can I add? To add to that, I actually was incarcerated early in my incarceration with a trans man, a Caucasian man who was a little older, probably 40-50, handsome, very handsome gentleman. And I had been in the facility for 12-14 months and I had gained a slight little bit respect amongst a few officer he's and I went to medical one day, and I saw this guy come in and they kept this guy separate from everyone. And it was like weird. So I'm in conversation with one of the guards, a medical, and I'm like why is that person like that?
Oh, she's like you. I'm like, excuse me?
She's like, well, you know. We don't got the terminology but we keep having meetings about him and you and we just so confused. I'm like, well look, thankfully this officer did address me correctly by proper pronouns but I had to tell her, if you could do that with me, please treat this man with respect. This is a grown, this is a very grown man. Please do not disrespect him. At least while you're in front of me.
They are unfortunately around and being treated the same way just on the opposite end of the spectrum.
CHELSEA GILLIAM: You can't really compare a woman anything to a man anything. And I don't think we ever should. Trans women are women, but we are women in our own lane. That's my opinion.
EVAN MONOD: I'll just add too that one of the amazing experts we were able to get on our case is a professor of criminology at UC Irvine who has done an amazing amount of social science research on the lives of transgender people in prison. And she would be the first to say that we need more data. We need more research. We need more people who are going into prisons, interviewing people, getting the real story on the ground, because, you know, this is only going to become more common. So we definitely need more social science research. To all the social science researchers out there, please consider adding this as part of your portfolio.
SPEAKER: Could you please provide a little more analysis on the distinction between the exclusion in the ADA versus gender dysphoria in the DSM? Because that could have a huge implication for LGBTQ+ rights in the states where those are not protected. Like mine. But we do protect disability rights.
KATHERINE HERRMANN: Sure. Certainly. So the exclusion uses the term gender identity disorder, which is a diagnosis that doesn't exist anymore. I think that was the DSM-III that included that basically as a means to project being transgender as a disability. So it is a little bit of a gearshift to get to this place where we are now saying trans people need protection under the ADA, but it is specific to the gender dysphoria. It isn't, you are disabled because you are trans.
There are a lot of trans people who are completely comfortable with themselves who don't have that distress who just go about their lives. And making that distinction, sort of taking that stigma away from the diagnosis but also acknowledging that there are also trans people with gender dysphoria who need accommodation, who need hormone treatment, who need to be treated like the gender that they identify. I'm not sure if I answered your question. I got a little carried away there.
EVE HILL: The other piece of it was, excludes gender identity disorders not caused by a physical thing. And gender dysphoria is a physical issue.
So we were able to distinguish it from the gender identity disorder exclusion in the ADA that way as well.
SPEAKER: What about regarding --
SPEAKER: Hold on. We have someone with a mic.
SPEAKER: This is Chelsea. I have curly hair, red dress, from the Washington lawyers committee. First off, Chelsea and Kennedy, thank you for being so open and sharing. So I speak a lot with trans women in the bureau of prisons because the District is unique that we don't have a prison so they go to Bureau of Prisons across the country. And I'm curious, Eve and Evan, is there a disability lens that you could apply to the bureau of prisons because the ADA necessarily wouldn't apply?
EVE HILL: Section 504 and they are supposed to require pretty much the same thing. So I would go with Section 504, absolutely. And it doesn't have a GID exclusion in this either so you've got an easier way with Section 504.
SPEAKER: Thank you.
SPEAKER: And the Affordable Care Act.
EVE HILL: And the Affordable Care Act.
SPEAKER: Hello. I have a question. I really appreciate the work Brown, Goldstein & Levy is doing tying this to disability law. Do you work with other firms that specialize in like LGBTQ issues or like incarceration issues whether it comes to this specific case or other cases?
EVE HILL: Yeah, we reach out -- so in our disability work, a lot of times you'll hear that we were working with the protection and advocacy organization, with other firms, and then in this work in particular, we did a lot of work at the beginning with the local and national LGBTQ groups because we don't want to come in and mess up a strategy. So yes, we try and reach out to the grassroots and the other organizations so that we're not stomping all like we know what we're doing.
SPEAKER: Larry Burger. I guess one question is how Maryland law is figuring in this, if it is, but I have a specific situation in mind and that's why my outburst about regarded as, because I know of a young man who is living in a community in which he is totally accepted. He's accepted by his family, his school, religious institution, the city in which he lives, all of that, and he lives in a state which is increasingly hostile to all trans people. So both how does Maryland law figure here at all and does the regarded as rubric come into play?
EVAN MONOD: I can take the first part. So Maryland law sort of following on from the previous panel, Maryland law does figure into our case insofar as we also brought Maryland tort claim as long side our federal claims to fill the gap left by Cummings. So that's how Maryland law figures into our case specifically.
Now, Maryland under the new Wes Moore administration has been saying we want to be a haven for transgender individuals, we want to be a safe state for trans folks and in this rising hatred that we're seeing in other states.
So they did pass the Trans Health Equity Act, which is supposed to kind of even the playing field in healthcare when it comes to transgender folks. However, that law as far as I'm aware doesn't apply to incarcerated people and there's been a lot of movement on the state level to try to address that, but that has really not gone anywhere yet. So I think this is an example where, okay, Wes Moore administration, if you truly believe this, put your money where your mouth is and treat your transgender prisoners with the decency and respect and healthcare they deserve.
EVE HILL: And for regarded as, we didn't use regarded as because we had the Williams case that said we didn't have to. And regarded as won't get you accommodations. So you could use it for the flat out discrimination which I argue is happening here as well, but it wouldn't get us the accommodation, for example, separate showers and so forth.
SPEAKER: Hello. This is Lydia, they/them. I'm also a Marylander, so I'm here, yea. And I'm a youngest east Asian nonbinary person with short black hair and glasses wearing my favorite and only nice looking suit so I can cosplay as a functional adult. Quick question on time check. What time is your panel scheduled to finish?
EVAN MONOD: 1:30.
SPEAKER: Okay. Sorry. We have 7 minutes. I just want to make sure we don't totally push you over time. I wanted to respond to something that had come up a few minutes ago, and of course it just promptly flew out of my brain. But that being said, I'm really excited that tenBroek has put on this session as a plenary for the entire conference. As someone who has long been deeply involved in trans and disability activism, I'm really appreciative of the discussion that I'm hearing, that this is being addressed more and not just within the LGBTQ community and specifically within transactivist community spaces.
But that being said, I've been working for a couple of years on a few different legal avenues around advocating for trans rights too, and I would be very happy to continue this conversation but I forget the question. Sorry.
SPEAKER: This is Jessie Weber again. Talking too much today. So I also just want to respond to Larry's point, and Lydia, feel free to interrupt with your question when it comes back.
On the rule of Maryland state law, two other things I wanted to add. One is that Maryland's, the Department of Corrections policy talks about this individualized housing assessment that needs to happen consistent with PREA, which we relied on heavily in a lot of, I mean atmospherically but it also showed what we were asking for under the ADA was reasonable because it was their own policy. So that was helpful.
The other thing which is terrible but is also kind of helpful now as we challenge the housing evaluation is that the Department of Public Safety and Correctional Services in Maryland has gone on the record in a report to our legislature as saying even though we have this policy saying we do an individualized assessment, our policy is to house by genitalia. That's all we consider. Which directly contradicts their own policy but they've been saying it out loud now on the record. I don't know why the Governor has not weighed in but that is in fact what they're doing.
KENNEDY HOLLAND: They don't care.
SPEAKER: They are not doing what they are saying let alone federal law. So just two other ways that Maryland law has factored in.
KATHERINE HERRMANN: And Kesha's case arose in Virginia at the local level and we ran into the same thing. The policy will say individualized assessment. But right there in the policy, it will also say, and forgive the phrasing but it is what the policy says: People with male genitalia will be housed on the male side of the facility. And it's like, why, even if you did perform the individualized assessment, which they don't, even if they assessed the likelihood of violence on the risk or, you know, it just gets totally thrown out the window by this other larger category.
And I think they even had a policy to call inmates by their last name to prevent misgendering them. I mean, you could walk in there and look around and that's not what anyone does.
EVE HILL: Okay. Yes?
SPEAKER: Hello. I'm Abigail, she/her pronouns. I'm wearing a blue shirt and I have curly brown hair which we'll generously call wavy. I wanted to ask, and thank you both so much for attending the conference and talking to us about your experiences. As the sole representatives of our clients, I wanted to see if there's anything we can do as advocates and lifelong learners to better welcome and include trans people in our advocacy throughout disability and all kinds of different services.
CHELSEA GILLIAM: I think for every individual person you meet that you feel as though you're going to represent, you need to interview that person, hear them out, but always keep a close ear to the trans community because a lot of people, a lot of us know how to roll with the punches. So whatever you throw at us, we'll just accept it. And when -- and that is something that I learned outside. I learned how to be a trainee among other trainees because the way I was raised wasn't necessarily the way that the world perceived me or the world would treat me. So to survive, and to sometimes get home with my teeth intact, I had to bite the bullet a lot of the times.
Again, keep a close ear for our cries for help. Although they may be faint, far, and few, they're here.
EVE HILL: It's true. Talking to Chelsea and Kennedy, they underplayed the experience until we talked a long time.
KENNEDY HOLLAND: Just be regular. Everybody is just people. It's becoming very complicated unnecessarily. It's becoming like it's always some new terminology, it's new ways to announce people. Like everybody is, and it's a beautiful thing because it shows the willingness for inclusion and the want to have better and do better, and at the same time, it's causing unnecessary confusion and frustrations for the people that might not be ready to but aren't necessarily opposed to. And to avoid those things, we could just be regular. Like hey.
CHELSEA GILLIAM: I have one more thing I would like to add. With the importance of PREA and why every trans person needs to be interviewed by them upon their arrival is that homosexuality is a widespread practice in the men's facility and the jail, so much so that in every common area, every five steps, there is PREA posted on the wall. It's in the bathrooms in the common area, it's in the gymnasiums, it's in, you know.
So that, with that going into, the only thing that is not widespread there is transgenders. Because a lot of us are erased or just, again, learn how to exist invisibly. And it is important that we are seen and heard because it is happening. People are being sexually assaulted in jail, and sometimes herded like cattle and just given assignments for certain things and certain people. And it's not something when it's not respected, it can't be utilized correctly. If every guard disregards a gay person or a transgender person in their facility, then it will just become like oh, if I'm there first, I ain't gonna do nothing. And in order for you to find it easier there, you have to learn from my mistakes, correct?
KENNEDY HOLLAND: That's definitely a part of it, I would agree with that for sure.
CHELSEA GILLIAM: And that's all. I just wanted to make sure we got that very clear, that homosexuality, the practice of homosexuality is a widespread practice in jail although it is not talked about. The only thing that is not widely spread is transgenders being in jail. So if something was to occur, everybody needs to be considered on their preferences and where they should be. That's the point I'm making.
KENNEDY HOLLAND: And I'm sorry. I know we're rushing. But this is Maryland and thankfully at the moment we do have outside before incarceration we are able to get hormones and surgeries. So the women that are unfortunately in these situations and incarcerated, they're getting prettier, realer, as far as look wise. They're able to live as the women that they are prior to incarceration. So when you're letting these women into -- I've had an officer pick up the phone when I got in and say, oh, I've never seen anybody like this ever before in my life. And that was the narrative of my whole thing is like, well, why am I here. If you see me, if you visually see me, you talk to me, you feel me, you get my energy, everything is exactly where it's supposed to be and then you turn right around and say, well, I hope you make it. Like why would you do that with me.
CHELSEA GILLIAM: You're a big guy, you can take care of yourself.
KENNEDY HOLLAND: I wish somebody would have said that to me because that would have been a whole other charge. But we don't do that. It has to be stopped. And I'm so appreciative for Eve and Evan and Brown, Goldstein & Levy -- I hope I said that in the right order -- for taking the case because people don't care. They don't care unless you're dead when it comes to incarceration. If we were to have passed away, the cases would have been picked up instantly. Prior to this I called multiple lawyers and law offices that said, oh, well, you shouldn't have got locked up. And that is it. So when I was incarcerated and saw Chelsea being taken on by Brown, Goldstein & Levy, I literally was in the day I burst into tears. I don't think I told you that. And the entire, my entire building all ran to me like, they doing it! They doing it! Look, look! It's like, yeah. One day. But with things like that, I'm glad that it's in progression to better hopefully.
EVE HILL: All right. Thank you all.
[Applause]
SANHO STEELE-LOCHART: All right. Thank you again to Evan and Eve, also of course to Chelsea and Kennedy. Chelsea and Kennedy, so grateful, so grateful for you being here, because it is so rare, too rare, that we hear from clients in your situation because unfortunately most people in your situation do not become our clients. We can't say enough how impactful this was.