August 27, 2020
A Latham team recently achieved a significant victory in the Ninth Circuit in a pro bono case related to gender discrimination in prisons. The case, Harrison v. Kernan, involves a constitutional Equal Protection challenge to the California prison property schedule, which draws arbitrary gender-based distinctions in determining what property male and female inmates are permitted to access. The district court had granted summary judgment in favor of the California Department of Corrections, declining to apply intermediate scrutiny and instead adopting a lower level of scrutiny that assessed only whether the decision was “reasonably related” to any legitimate penological interest. That standard makes it virtually impossible for prisoners to mount successful challenges to policies that facially discriminate on the basis of gender, and has led to significant inequity across the California prison system.
Appointed by the Ninth Circuit on appeal, associate Samir Deger-Sen drafted the appellate briefing and argued the appeal before a panel of Ninth Circuit judges. Last week, in a unanimous published opinion, the Ninth Circuit vacated the district court’s decision. The court adopted Latham’s arguments across the board—including holding, for the first time, that the intermediate scrutiny standard of constitutional review for gender-based distinctions applies in prisons. The court also articulated the intermediate standard in a manner that will be very favorable to prisoners challenging gender-based policies. Specifically, the Court explained that “[i]t is not enough, under intermediate scrutiny, for the Department only to demonstrate ‘empirical relationships’ between gender and the various propensities against which it seeks to protect”; instead, it “must show that those relationships adequately justify the salient features of the challenged regulation.” The Court also made clear, again for the first time, that ex-post justifications for challenged policies are insufficient; instead, the government must show that its “gender-based distinctions [are] rooted in reasoned analysis by policymakers, rather than the mechanical application of traditional, often inaccurate assumptions about gender.” This holding is a highly significant recognition of the right to equal treatment for prison inmates.
In addition to Deger-Sen, the Latham team included partner Roman Martinez, associates Amanda Barnett and Jessie Cammack, as well as partners Melissa Sherry, Gregory Garre, and Rick Bress, and associates Caroline Flynn and Michael Clemente.