On April 7, 2021, Disability Rights Washington (DRW); the ACLU of Washington; Munger, Tolles & Olson LLP; and MacDonald, Hoague & Bayless sued the Washington Department of Corrections (DOC) on behalf of a group of people who are currently and formerly incarcerated. Several parties, including media entities and an individual, had requested information through the Washington Public Records Act about people whom DOC has identified as transgender, non-binary, and intersex. This emergency lawsuit was necessary to protect their safety and privacy. DOC alone was sued in this action. The media entities and individual who requested this information were given notice of our lawsuit and named as “interested parties” in this case so that they may remain updated and have the opportunity to provide their perspective should they so choose.
The scope of the requests for information about transgender, non-binary, and intersex people is vast. In response, DOC could release information about people’s mental health and medical information, including but not limited to their transgender or intersex status and history of gender-affirming medical care, as well as information about their experiences surviving sexual violence. As required by federal law, including the Prison Rape Elimination Act, DOC collects this extremely sensitive information for the purposes of managing the heightened risks of sexual and physical violence that all people, including cisgender men and women, and transgender, non-binary, and intersex people, face in custody. Disclosing this information would create a terrible precedent for the safety and privacy of all people who have been in or will be in DOC custody, including all victims of sexual abuse. DOC policies state the information will be kept confidential and they go to considerable lengths to ensure confidentiality when gathering and analyzing this information in order to protect the safety and privacy of those identified. Disclosing this information will, by purpose and effect, create a target list of some of the most vulnerable people who are or have been in the care of the DOC. It will also deter people from disclosing their gender, seeking life-saving medical and mental health care, and rob people of their fundamental right to privacy and to live a life consistent with their gender without fear of harassment, discrimination, and other forms of violence inside and outside DOC.
Such a disclosure would create a serious and unacceptable risk of harm to the people identified and violate their 8th and 14th Amendment rights. In addition, the requested information is exempt from disclosure under Washington’s Public Records Act. While access to records under the Public Records Act generally serves a public interest through government transparency, there is no legitimate interest in a person’s transgender, non-binary, or intersex status or their medical information. Publicly disclosing the requested private and protected information will place these community members at grave risk of harm, and violate state and federal law. We cannot allow this to happen.
Notice: Provisional Class Action Certification
Does v. Washington State Department of Corrections, et al., E.D. Wash. No. 4:21-cv-05059-TOR, is a federal class-action lawsuit challenging the way the Washington Department of Corrections (DOC) responds to Public Records Act requests for information about people in custody DOC has identified as transgender, non-binary, and/or intersex. The plaintiffs contend that DOC’s responses to such requests would reveal class members’ status as transgender, non-binary, and/or intersex and other private information such as their experiences surviving sexual violence and certain medical and mental health information. This action does not seek any money damages and none will be provided.
All persons who have been incarcerated in Washington State prisons and identified as transgender, non-binary, gender nonconforming, and/or intersex in records in the possession of the Washington State Department of Corrections are members of the provisional class in this lawsuit. You are a member of this class if you are currently or were formerly incarcerated in any Washington State prison and are identified in any DOC record(s) as transgender, non-binary, gender non-conforming, and/or intersex.
If you would like more information about this case or have any information that you wish to communicate to attorneys for the Provisional Class, please contact Disability Rights Washington, 315 5th Avenue S, Suite 850, Seattle, WA 98104, Tel. 206-324-1521, https://www.disabilityrightswa.org/cases/does-v-washington-department-of-corrections/.