The Rights of Gay Prisoners: A Challenge to Protective Custody

52 Pages Posted: 4 Dec 2012

See all articles by Joan W. Howarth

Joan W. Howarth

William S. Boyd School of Law, UNLV; Michigan State University College of Law

Date Written: 1980


This Note focuses on the specific issues raised by the traditional method of dealing with homosexuals in prison: isolation from the general prison population. This traditional segregation often results in almost twenty-four hour-a-day confinement to a cell, which severely limits access to programs and opportunities normally enjoyed by prisoners.

This Note first discusses the history and current practice of segregation of gay prisoners' as well as the broader subject of protective custody, and then outlines the judicial response to the problems of protective custody prisoners generally and gay prisoners specifically. It then critiques the judicial confusion and resulting reluctance to scrutinize these segregation policies. Specifically, the Note argues that constitutional due process requires the implementation of procedural safeguards prior to any non-voluntary assignment into protective custody." It also challenges the constitutionality of the segregation, protective or otherwise, of any prisoner solely on the basis of his or her status as a homosexual.' Finally, this Note argues that the due process clause, the eighth amendment, and the equal protection clause of the Constitution require major changes in the treatment of all protective custody prisoners, and of gay prisoners in particular.

Keywords: gay, lesbian, LGBT, rights, gay rights, protective custody, prisons, prisoners, segregation

Suggested Citation

Howarth, Joan W., The Rights of Gay Prisoners: A Challenge to Protective Custody (1980). Southern California Law Review, Vol. 53, 1980, Available at SSRN:

Joan W. Howarth (Contact Author)

William S. Boyd School of Law, UNLV ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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