Cross-Gender Strip Searches Part 2

By Mike Dorf

In yesterday's post, I explored the light that analysis of the 9th Circuit decision in Byrd v. Maricopa Cty Sheriff's Dep't sheds on the nature of reasonableness under the 4th Amendment.  Here I consider the implications of the court's conception of privacy for sex equality claims by third parties.  Recall that the case holds that a non-emergency cross-gender strip search of pre-trial detainees is unreasonable absent an emergency that precludes waiting for a guard of the same gender as the detainee to perform the strip-search.

Byrd--the plaintiff detainee in the case--made a half-hearted attempt to raise a sex discrimination claim, arguing that the defendant permitted female detainees to insist on a female guard to perform the strip-search but denying the same right to insist on a same-gender guard to male detainees.  However, that claim was not sufficiently developed and accordingly the 9th Circuit made short work of it.

But consider a different sex discrimination claim.  Because about 90% of jail and prison inmates in the U.S. are male--and because inmates are sex-segregated--most opportunities for work as a jail or prison guard are in jails and prisons (or units within jails and prisons) housing male inmates.  Suppose that as a result of the 9th Circuit ruling in Byrd, women are excluded from some fraction of the guard positions in jails and prisons.  In Dothard v. Rawlinson, in 1977, the U.S. Supreme Court found that an Alabama administrative rule forbidding women from serving as guards in "contact positions" guarding male prisoners in maximum security prisons did not violate Title VII because it fit into a narrow exception under the statute for bona fide occupational qualifications.  The Court explained:
In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians.
Dothard was a statutory, not a constitutional, case, but it seems highly likely that the Dothard Court would also have upheld the Alabama regulation against an equal protection challenge on the ground that the need to maintain prison discipline and concerns about the safety of female guards satisfy heightened scrutiny.

I'm not sure that's the correct decision.  As Justice Thurgood Marshall argued in dissent in Dothard, much of the danger to female guards in the Alabama prisons resulted from the fact that conditions there were so terrible--indeed they had been separately adjudicated unconstitutional.  For Justice Marshall (joined by Justice Brennan), the state should not have been allowed to invoke its failure to respect the 8th Amendment rights of inmates as justification for failing to treat female guards equally.

But Dothard apparently remains good law (at least on the BFOQ question; the case also involved a disparate impact claim regarding other rules, and those have been somewhat superseded).  Presumably the case could be invoked by jail and prison officials to defeat the equal protection or Title VII claims of any putative female guards excluded from positions in which they would be performing strip-searches on male inmates as a result of the 9th Circuit holding in Byrd.

Yet even though the Dothard defendants cited inmate privacy concerns to justify the exclusion of women from contact positions, the majority did not rely on (or even mention) them.  Instead, the Dothard majority found that the concern for female guards' safety rendered the exclusion a BFOQ.  The only Justice who discussed the privacy argument was Justice Marshall in dissent.  He was dismissive, stating that it "is strange indeed to hear state officials who have for years been violating the most basic principles of human decency in the operation of their prisons suddenly become concerned about inmate privacy."  So to use Dothard as a precedent, the defendants would first need to establish that inmate privacy is comparable to guard safety, and thus justifies sex discrimination.

Of course, the Maricopa Sheriff's Dep't is in a pretty strong position with respect to the privacy concerns of inmates.  Having just been told by a federal appeals court that the 4th Amendment forbids non-emergency strip-searches, surely that holding counts as a sufficient justification for the Sheriff's Dept in defending against a lawsuit by female guards.  Otherwise we would put the Sheriff's Dep't in a damned-if-they-do-damned-if-they-don't position, and the only way to avoid liability one way or the other would be to forego strip-searches.  I happen to think that would be okay, but it's pretty clear that the 9th Circuit thinks that the jail and prison officials have good reason to conduct strip-searches, even absent particularized suspicion.  Thus, the result in Byrd at least tacitly precludes the sort of sex discrimination case I've described here.

But if the privacy of inmates justifies exclusion of women from positions as guards who conduct strip-searches, does that suggest that, in the days before Don't-Ask-Don't-Tell was repealed, DADT would have been justified based on the privacy concerns of heterosexual service members who feel it is an invasion of privacy to share close quarters with other service members of the same sex who are gay or lesbian?  I know I promised yesterday to address that issue today, but this post has gone on long enough, so I'll make this a 3-parter and consider the DADT analogy tomorrow.  Stay tuned . . . .