Every jailhouse lawyer knows Dee Farmer’s name, even if they don’t know who she is.
Farmer v. Brennan is among the most frequently cited Supreme Court cases of all time, referred to in tens of thousands of lawsuits: about inadequate medical care, moldy and contaminated food, overcrowding, understaffing, gang violence, and a wide range of other issues in prisons and jails. Anyone suing the government to claim that corrections officials violated the Constitution by being indifferent to their health or safety has Farmer to thank.
What most of them don’t know is that the person who paved the road for them was a transgender woman who filed her suit from a federal prison cell, in an era when her gender identity was considered a mental illness.
As the Trump administration takes aim at transgender people, and state legislatures pass hundreds of anti-trans laws, prison systems face a flood of lawsuits demanding that they provide gender-affirming care. Farmer was bringing suits like these nearly 40 years ago.
In Farmer v. Brennan, the high court for the first time said that people in prisons and jails have a constitutional right to be protected from violence and assault by other prisoners. The 1994 decision found that failure to protect the safety of people in custody can be considered cruel and unusual punishment.
Farmer was the first transgender plaintiff known to have a case heard by the Supreme Court, and her lawsuit was the first time that the court addressed the issue of sexual assault in prison. And it laid the groundwork for the landmark Prison Rape Elimination Act in 2003.
“When she was bringing these claims, she never thought she would win,” said D Dangaran, a prison civil rights attorney and friend of Farmer’s. “She just thought she had a right to ask for it.”
Even as a young child growing up in Baltimore, Farmer adopted “feminine interests and mannerisms,” as she wrote in court documents later, “and a dislike for male orientated activities.” Teachers often took a special interest in her, she said, first for her intelligence, and then when they saw the ruthlessness with which other kids targeted her. Unable to manage the stress of being bullied, she eventually dropped out.
At 14, Farmer started buying female hormones on the black market. By 19, she had changed her first name, had breast augmentation surgery and enrolled in a program to prepare for additional gender-affirming surgery, working with several doctors in Baltimore. She was also working a hustle with a few friends to use stolen credit card numbers to buy furniture, computers and video equipment, and have them delivered to friends’ houses.
In 1985, she was arrested and charged in state and federal courts with separate crimes related to the scheme: theft, burglary and passing bad checks in state court; credit card fraud in federal court. She pleaded guilty, thinking the judge would order her various sentences to run at the same time. He did not. At 21, Farmer was sentenced to 20 years in federal prison, to be followed by 30 years in Maryland state prison.
She was sent to a men’s prison, where, because her youth and femininity made her vulnerable, she spent the majority of her first few years in solitary confinement. One official told her that in general population, “I would be raped at knife point or possibly murdered, because I would be the closest thing the inmates could get to a woman,” she wrote in a court filing. When she did spend time in general population in another facility, “I was constantly approached by inmates for sex,” she wrote, and on more than one occasion felt she couldn’t say no.
As a child who was picked on and ostracized, Farmer had long sought refuge in quiet places where she could be alone and read. “When I got to prison, the law library was the place where most people did not go. That’s how I began to go there. And of course, the more I read, the more conscious I became about the law and what was right and wrong,” she recalled in an interview with The Marshall Project. She filed her first lawsuit within a year, and soon, other prisoners sought her out for help with their legal filings. “The more I litigated, the better I became,” Farmer recalled.
At the time she was locked up, federal prisons would not allow gender-affirming medications. She started getting in trouble for smuggling female hormones into the facility. Once, she submitted a forged court document to her prison doctors, ordering them to prescribe her estrogen. Prison officials also wrote her up for ordering women’s clothes, jewelry, hair relaxer, and even flowers from the outside, and for wearing her prison uniform off one shoulder. All these infractions — and, Farmer contends, in retaliation for her increasingly effective legal advocacy — led officials to transfer her from a medium-security prison in Wisconsin to the maximum-security penitentiary in Terre Haute, Indiana.
The prison in Terre Haute was a particularly dangerous place, with rampant use of drugs and alcohol and a large population of people serving long terms for violent crimes, Farmer wrote later in court documents. There, officials sent her into general population.
The result, she argued, was entirely predictable. Less than two weeks after her arrival in 1989, another prisoner entered her cell and sexually assaulted her, she recounted in her legal filings. He punched her, tore her clothes and pinned her down. She tried to fight back, but when she saw a homemade knife, she said, she relented, scared of being stabbed. By the time he left, her face was swollen, her lips and nose were busted, and she was bloodied and humiliated.
Getting justice after a sexual assault is difficult under any circumstances, but particularly so in prison, where a lawsuit is often the only recourse. So, she sued. Farmer wanted the warden and a slew of Bureau of Prisons officials to pay her damages for her suffering. But first, she had to prove that they were liable for violating her rights.
Writing with a felt-tipped pen on lined paper, Farmer argued that prison officials knew that “the plaintiff or any male-to-female preoperative transsexual, who has a feminine appearance…would be sexually assaulted at USP-Terre Haute.” The warden knew she was trans. He knew that her youth and feminine appearance would make her a target, she argued. And he housed her in general population anyway.
For their part, prison officials argued in a brief that Farmer had never warned them that she would be attacked. They said they were “not liable under the Eighth Amendment unless they know that an inmate is in imminent danger of attack and decide to do nothing.”
At that time, in 1991, this was not settled law. The Supreme Court had ruled years earlier that prison officials violated prisoners’ rights if they showed “deliberate indifference…to a prisoner's serious illness or injury,” but had never clarified what “deliberate indifference” meant in other contexts or how to prove it.
Robert Loeb was an attorney at the Department of Justice at the time of Farmer’s lawsuit, and he helped draft some of the government’s briefs in the case. In a recent interview with the Marshall Project, he pointed out that the department’s Civil Rights Division tried to hold state and local officials accountable when their prisons and jails were not run humanely — so he and his colleagues weren’t unsympathetic to Farmer’s plight. At the same time, “prisons can be dangerous places. Every time one prisoner attacks another, you can’t have prison guards, the director of the Bureau of Prisons and the director of the region being sued.”
As for Farmer, she argued that because prison officials control almost every aspect of the lives of those incarcerated in their institutions — where they live, what they eat, what they wear, who they live with — prison employees should be held to a higher standard than other government officials.
“It seemed very common sense to me,” Farmer said recently. “Can you put somebody in a place where you know they’re going to be harmed? They have no control over where they go. It’s totally up to you.”
That argument did not go well in the federal district court in Wisconsin, where she lost. When she appealed to the Seventh Circuit Court of Appeals, she lost again, so she appealed to the U.S. Supreme Court.
It was an audacious show of confidence for someone who had never completed high school, and there was no reason to think her case would catch the justices’ attention.
In her petition to the Supreme Court, which she typed up in her prison’s law library, Farmer argued that it was wrong to say that prison officials had to know about, and ignore, a specific threat in order to be held accountable. She didn’t know a particular person would attack her on a given day. Rather, her risk in general population was so obvious that officials should have known and taken precautions to protect her.
The Supreme Court receives thousands of petitions every year and only hears about 80. But Farmer got a sense that the justices were seriously considering the case when she got a copy of a letter the Supreme Court sent to a lower court, asking for the entire record. So, she wrote to the ACLU in Washington, D.C., and asked whether, if the Supreme Court accepted her case, it would represent her. The ACLU said yes.
From the vantage point of today, it’s hard to call to mind just what Farmer was up against. At the time, it was legal to be fired for being gay, and it would be for years. Trans people were the butt of jokes in big-budget Hollywood slapstick comedies. At a 1991 trial in a case she’d brought demanding access to female hormones, a judge told Farmer to stand still because he didn’t want her “sashaying around my courtroom,” as she recalled. (She lost.)
Behind the scenes at the Supreme Court, a young clerk for Justice Harry Blackmun named Sherry Colb successfully urged her boss to take the case. Colb, who went on to become a preeminent legal scholar, wrote in a memo, “Rape is not a punishment that prison officials can expose or subject a prisoner to for violating prison rules.” A few months later, in the fall of 1993, the court announced it would hear Farmer’s case.
Margo Schlanger was also a law clerk at the Supreme Court that term, working for Justice Ruth Bader Ginsburg. “Unlike most state actors, who have only negative obligations — all they have to do is not hurt you — in prison, it’s different. They actually have affirmative obligations to run prisons humanely,” said Schlanger, now a University of Michigan law professor, summarizing Farmer’s argument. In other contexts, a public official may be obtuse or foolish for missing something obvious, but “not knowing something inside of prison is dereliction of duty,” Schlanger said. That theory, which Farmer laid out in her petition to the court — “it’s brilliant.”
The day that her case was argued before the Supreme Court, in January 1994, was like any other day for Farmer. She spent it in solitary confinement in the federal prison in Florence, Colorado, where she had been transferred after the assault in Terre Haute. She wasn’t allowed to attend oral arguments at the court in Washington, D.C., but the ACLU spoke for her.
Elizabeth Alexander, the ACLU attorney, called her “she.”
Paul Bender, the government’s attorney, called her “he.”
For their part, the justices seemed to try to avoid using any pronouns at all. It’s hard to imagine now, but the effort to not misgender Farmer was a huge deal at the time, Schlanger said. Ginsburg occasionally called her “she” but more often, with her heavy Brooklyn accent, just called her “Farmer.”
The justices primarily tangled with the question of what prison officials had to know in order to be liable for “deliberate indifference.”
In early drafts of the justices’ opinions, which were made public in 2004 after the death of Justice Harry Blackmun and the release of his papers, the justices staked out many positions. Justice David Souter experimented with the phrase “willful blindness”: What if prison officials didn’t know something because they didn't want to know? Justices Clarence Thomas and Antonin Scalia argued that inhumane and dangerous treatment in prison wasn't cruel and unusual punishment.
In the end, in a unanimous decision handed down in June 1994, the nine justices “sort of went down the middle,” Farmer said in a recent interview. To be liable for “deliberate indifference,” officials had to be aware of a risk of serious harm and disregard it. This strict interpretation won over the more conservative justices. But the justices who wanted to side with Farmer also claimed a victory. They set a relatively low bar for a prisoner to prove the official was aware: “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”
And then they sent Farmer’s case back down to the lower courts to weigh whether, with this new standard as a guide, the Bureau of Prisons officials had been deliberately indifferent to the likelihood that she would be raped when she was placed in general population at the penitentiary in Terre Haute.
So, in 1997 — eight years after her rape — Farmer was able to confront prison officials for putting her in harm’s way, in a trial in the district court. “By that time, the Bureau of Prisons claimed that all the records of the environment of Terre Haute — administrative detention and disciplinary records for the period that I was there — had been destroyed,” Farmer said.
After just two days at trial, she lost. The jury didn’t believe her testimony that she had been raped. While Farmer v. Brennan led to a path for prisoners to seek redress for abuses they suffer in prisons, it did not, ultimately, benefit Farmer herself.
By the time she was released in 2020, Farmer had served more than 30 years in federal and state prisons, and she was legally blind from a congenital eye condition. (If other prisoners wanted her help with legal filings, she said, she asked for them to read case law aloud as payment.) She had AIDS, and all the available antiretroviral medications had failed. Doctors gave her a year to live, she said. A Maryland judge ultimately reduced the state portion of her sentence to time served so she could enroll in a clinical trial of some new HIV medications, which saved her life.
Now 60 and living in Baltimore once again, Farmer is soft-spoken and unassuming. She channels what might otherwise manifest as anger into Fight4Justice, the nonprofit organization she founded to continue helping incarcerated people research and write legal claims and connect with attorneys. She is the subject of a forthcoming podcast about her life and work, and recently co-authored a law review article about Farmer v. Brennan with her friend Dangaran.
She said the current political atmosphere, in which lawmakers are targeting transgender people’s rights, feels different from what she faced more than 30 years ago.
“In the past, it was more out of ignorance or lack of education,” she said. “People were not out to intentionally make you suffer.” Now, she said, “it feels very deliberate and intentional.”
