inmates from wearing female makeup and apparel. Furthermore,
the plaintiff's equal protection claim is without merit.
Regardless, the defendant is entitled to qualified immunity as
the plaintiff has no clearly established right to cross-dress
in prison. Accordingly, the defendant's motion for summary
judgment will be allowed and the plaintiffs motion for summary
judgment will be denied.
The plaintiff argues that the First Amendment (applicable to
the states through the Fourteenth Amendment) guarantees his
right to freedom of expression. Even assuming that the
plaintiff would otherwise have a right to express himself by
wearing women's clothing and cosmetics, legitimate security
concerns override any right the plaintiff may have.
While prisoners do not lose their First Amendment rights upon
incarceration, see Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct.
2532, 2538, 49 L.Ed.2d 451 (1976), an inmate's rights are
subject to restriction. "[A] prison inmate retains those First
Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94
S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). "[M]aintaining
institutional security and preserving internal order are
essential goals that may require limitation or retraction of
the retained constitutional rights. . . ." Bell v. Wolfish,
441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979).
Federal judges may not interfere in the daily administration of
state prisons barring substantial evidence that they have acted
disproportionately to correctional needs. Pell, 417 U.S. at
827, 94 S.Ct. at 2806.
When a challenged prison regulation impinges on an inmate's
constitutional rights, the regulation is valid if it is
"reasonably related" to legitimate penological interests.
Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96
L.Ed.2d 64 (1987); Siddiqi v. Leak, 880 F.2d 904, 909 (7th Cir.
1989); Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988).
In the case at bar, the defendant has articulated a rational,
non-arbitrary basis for regulating inmate attire. In his
affidavit, Gramley states that the Department of Corrections
has set restrictions on what clothing inmates are allowed to
possess in order "to minimize security risks." Gramley asserts
that allowing an inmate to wear women's garments and makeup in
an all-male prison could provoke and/or promote homosexual
activity or assault, thereby creating safety and security
risks. Gramley further maintains that an inmate dressed as a
female poses an additional security risk because the
potentially drastic "change in his identity" could facilitate
an escape from prison.*fn2
Moreover, accommodation of the plaintiff's asserted right
would be unduly burdensome for prison officials. Providing a
selection of female clothing and makeup at the prison
commissary for one (or few) inmates would make little fiscal
sense, apart from the additional inventorying such a venture
would necessarily entail. Furthermore, inmates dressed as
females undoubtedly would require heightened protection to
avoid attack by intolerant or sexually aggressive fellow
The plaintiff's discrimination claim likewise fails. The
plaintiff reasons that if women are allowed to wear pants, then
he should be allowed to wear a dress. In the context of equal
protection claims, the reasonableness of prison rules and
policies must be examined to determine whether distinctions
made between groups in prison are reasonably related to
legitimate penological interests. Williams v. Lane,
851 F.2d 867, 877 (7th Cir. 1988), cert. denied, 488 U.S. 1047, 109
S.Ct. 879, 102 L.Ed.2d 1001 (1989) (addressing unequal
opportunities for different religious groups).
First, the plaintiff is treated no differently from any other
similarly situated (i.e., male) inmate. In any case, the
differential treatment between men and women cannot sensibly
be compared. Wearing pants is now generally accepted for women;
whether it is fair or not, society frowns on men wearing
dresses. A female inmate will not be victimized for wearing
pants, but a male inmate wearing a dress faces ridicule or,
worse, physical assault.
Finally, even assuming (without finding) that the defendant
did violate the plaintiff's constitutional rights, the
defendant is entitled to qualified immunity from damages. The
plaintiff has no "clearly established" right to cross-dress. To
the contrary, while the Seventh Circuit has not addressed the
issue in the non-medical context, case law in other
jurisdictions indicates there is no such right. See, e.g.,
White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988); Hill v.
Estelle, 537 F.2d 214 (5th Cir. 1976). Furthermore, the court
has become aware that the plaintiff raised the same claim in
the Northern District of Illinois; that suit was dismissed as
In sum, no material facts are in dispute and the court
concludes that the defendant is entitled to judgment as a
matter of law. The defendant has set forth legitimate
penological justifications for barring inmates from wearing
female makeup and apparel. Furthermore, the plaintiff's equal
protection claim is without merit. Regardless, the defendant is
entitled to qualified immunity as the plaintiff had no clearly
established right to cross-dress in prison. Accordingly, the
defendant's motion for summary judgment will be granted and the
plaintiff's motion for summary judgment will be denied.
IT IS THEREFORE ORDERED that the plaintiff's motion for
summary judgment (docket # 21) is denied.
IT IS FURTHER ORDERED that the defendant's motion for summary
judgment (docket # 18) is allowed. The Clerk of the court is
directed to enter judgment in favor of the defendant and
against the plaintiff pursuant to Fed.R.Civ.P. 56. The case is
terminated. The parties are to bear their own costs.