Farmer at 31: Historicizing Trans Rights in Prison through Intergenerational Dialogue

Abstract

In 1994, the U.S. Supreme Court held in Farmer v. Brennan that prison officials can be found deliberately indifferent for failing to protect incarcerated people from a known or obvious risk of harm. Co-author Dee Deidre Farmer litigated that case pro se through the Court's grant of certiorari. The case was groundbreaking: Ms. Farmer is the first known trans plaintiff in the Supreme Court, and her trans rights case set important precedent for all people behind bars. 

Recently, citing the Supreme Court's growing "disfavor" towards expanding Bivens claims into new contexts, federal courts have ruled that there are no available damages remedies for failure-to-protect claims against federal prison officials. Appellate courts have referenced the Supreme Court's trio of established Bivens cases as the only contexts in which such a remedy apply. But the Supreme Court has never overturned Farmer, which was explicitly a Bivens damages case. Lower courts have therefore eroded the basic premise of Farmer and, in doing so, rendered invisible Ms. Farmer's hard-fought success in establishing the failure-to-protect claim. 

In this Article, we argue that Farmer is still valid as an established Bivens remedy for failure-to-protect claims. First, we historicize Farmer by reviewing the publicly available record, letters of Justices of the Court, and the decisions on remand-which Ms. Farmer experienced firsthand. Second, we situate Farmer in the modern Bivens framework to show that it remains an established Bivens context. A contrary outcome contributes to the trend of trans erasure across the country.

Keywords: LGBT Rights, Transgender, Bivens, Constitutional Law, Civil Rights, Supreme Court, Prison