Transgender Prisoner Rights with Alan Mills

Episode Notes

Transcript

Trisha Rich:

Hello, hello, hello everyone, and welcome to CBAs @theBar, a podcast where we have conversations with our guests about legal news, events, topics, and other stories that we think you’re going to find interesting. I’m one of your hosts today, Trisha Rich of Holland Knight and co-hosting the pod. With me today is Nikki Marcotte, a litigator and trial attorney at Kirkland and Ellis, and one of our newest hosts here at theBar. Nikki, as always, love seeing you. Grateful to be here together.

Nikkie Marcotte:

Same here, Trisha. Thanks.

Trisha Rich:

And joining me and Nikki today is one of my friends and heroes, Alan Mills. Alan is the longtime executive director of the Uptown People’s Law Center, one of the most prominent and effective legal aid organizations in the city of Chicago and in Illinois, although its impacts over the years have reverberated throughout the country. The Uptown People’s Law Center was started in 1975.

Insights as its mission upholding fundamental rights for the most vulnerable among us, including unhoused people, the disabled veterans, and importantly for today’s conversations, incarcerated individuals. Alan began working at the Uptown People’s Law Center as a volunteer in 1979, ultimately moving through the ranks to become a staff attorney, then legal director. And finally, in 2014, the organization’s executive director. Alan has spent his entire legal career being a champion for underserved populations, and his legacy is vast. In fact, if you are a lawyer in Chicago or Illinois and you have ever worked on a pro bono prisoner case, you have Alan Mills to thank for that will drop his home address soon later. I kid I can. Alan’s impact in this area truly cannot be understated, and we are absolutely thrilled to have him here today. Alan, thank you for joining us and welcome to at theBar, and

Alan Mills:

Thank you for that extremely generous introduction.

Trisha Rich:

Alright, we are here today to talk about your impact in prisoner rights litigation. So Nikki, I’ll let you jump in.

Nikkie Marcotte:

Yeah, yeah. So Alan, why don’t you give us a little background on your involvement with prisoner litigation specifically and kind of what you do in that realm.

Alan Mills:

How long do we have? 15 minutes. Right. So I mean, really it starts way back when I was in high school when my mom was involved in prison rights activism back in Baltimore. And at that point I was getting into photography, did a bunch of photography for a yearbook, and she needed some pictures of the Baltimore City Jail. So she dragged me inside to take some pictures and that’s when I sort of said, oh, well, gee, this is horrible. Maybe I should do something about that. And that’s what I had in mind when I went to law school. I want to do something civil rights and I want to do something community-based, and I wasn’t sure what that meant. And I ended up living in uptown kind of by accident. And I was bored after my first year of law school, so knocked on the door of the Uptown People’s Law Center and said, do you guys need any help?

45 years later I’m still there. And in terms of the prison stuff, the people who founded the Uptown People’s Law Center firmly believe that when people from the community went to Cook County Jail or into the prison system, they remained members of the community. And that’s how they started doing this work before I got there, long before I got there, is for people who lived in uptown and knew the Uptown People’s Law Center from work in the community, and they continue to represent them when they went to prison. Since then, it’s of course expanded and now we go way beyond people who lived in Uptown and it’s a statewide practice.

Trisha Rich:

Can I just ask a quick biographical question? I know going to Northwestern is what brought you here to the city? Did you intend on staying here?

Alan Mills:

Absolutely not. We came here with the idea that we’d be here for three years just for law school. Both my wife and I thought we were going to end up on the East Coast, probably in New York City. We kind of missed our deadline by 40 some years. Chicago and more particularly uptown just grabbed us. We ended up in Uptown by mistake. We knew one person in the city of Chicago who lived in the city, which was a teammate of my wife’s running team in high school. So we stayed with her in uptown and found a place a couple blocks away and then fell in love with the community. And my wife first became active in the community on Helen Schiller’s early Aldermanic campaigns. And then as I said, when I was bored with after the first year of law school, I joined the Uptown People’s Law Center as well.

Trisha Rich:

Well, I think you know my extreme bias about this, but knowing that your options were New York and Chicago, I will say that I think you lucked out.

Alan Mills:

I agree.

Nikkie Marcotte:

Yeah. So as a litigator myself, I have encountered you, Alan, quite a few times on incarcerated individual civil rights litigation. I know you run the trainings at the Federal Courthouse here, so you are very much a staple in the community. But I want to dive in a little bit and discuss a recent Seventh Circuit court opinion regarding the Monroe class action, which has a lot to do here in Illinois with incarcerated individuals and the gender affirming care that they do or rather do not receive here in the system. So why don’t you tell us a little bit about the Monroe Class action, what that’s about, and we’ll walk through that.

Alan Mills:

Well, I’m going to avoid your question for a second and talk first about how we met Ms. Monroe

Because it wasn’t through the class action case. We were representing prisoners throughout the state of Illinois in both a medical case and a mental health class action cases. And through that work, we had met a number of prisoners at Dixon Correctional Center, one of whom was Patrice Daniels, who has been in prison for a very long time and was very much an activist inside prison. And he called us one day and said, Hey, you have to represent this trans woman who was raped by a guard here. She didn’t want to come forward, but I persuaded her to file a grievance and now she’s being retaliated against her filing that grievance, so can you come interview her? And that turned out to be Ms. Monroe. So we first represented her, we continued to represent her in that case, we represented in her second case where she wanted to be moved to the women’s at Logan.

She had been at men’s prisons the entire time because at that point the Department of Corrections had a firm policy that you would be assigned based on your genitalia rather than anything about your actual orientation. So we’ve represented her in those two cases and then we, ACLU came in and expanded that to a much larger case, including trans people throughout the state of Illinois and in general their medical care or lack thereof, which is much more lack thereof, which sort of intersected with our claims about medical care. We had litigated the same thing on behalf of a couple other trans women in terms of clothing and medical care and treatment and really mental health care as well. So we were very familiar with the issue. So we were, kitz, I think is the right word on the Monroe case from pretty much the beginning.

Nikkie Marcotte:

This case originally, I believe, was filed in early 2018, the class action suit. So what were some of the grievances that some of the incarcerated individuals had that were finally culminating into this lawsuit?

Alan Mills:

I mean, originally it covered a vast majority of things. Everything from access to feminine products was an obvious one, makeup bras, all those sorts of things that women needed but men don’t, which were not available in the men’s prisons, which is where they were all kept at that point. By that time, the gender barrier had been broken. So there were a couple of people who had been moved to Logan. So it wasn’t, that itself was not the sole issue, but it went all the way from there. And then one of the big ones originally was mental healthcare. There were no sort of trans oriented mental health groups, and therefore they weren’t getting any assistance at all with the gender dysphoria that many people dealt with. And then finally it went all the way to surgery, and that particularly was Ms. Monroe issue. She had in fact attempted self-mutilation a couple of times when they refused to give her the surgery that she desperately needed.

Nikkie Marcotte:

That’s awful.

Alan Mills:

It was, yes.

Nikkie Marcotte:

How many years leading up to the lawsuit, how many years were these individuals requesting gender affirming care and getting denied that care or getting delayed in getting that care

Alan Mills:

A long time? I want to say memory of the band doesn’t go that far back, but I mean, I think it’s been a growing issue as people have become more comfortable with coming out as being trans, then as soon as you come out, you are going to ask for care. But I mean, it probably even predates that in some sense since the mental health care in general in the Department of Corrections is so bad, it’s going to be particularly bad for people who aren’t viewed as outside the norm or trans people in general are not going to get recognized as even needing care, let alone getting it. So I think in that sense it’s been going on forever.

Trisha Rich:

Can I jump in and ask a couple of questions just generally about the landscape of this for our listeners that aren’t quite as familiar with it? I understand this is an issue from reading about it in the newspaper and seeing your name on various articles, but as somebody that doesn’t really litigate in this space, is Illinois better or worse than other states on this issue? Or are we right in the middle? Are we doing anything better than what we see around the country?

Alan Mills:

I don’t know. The middle is right, but we’re not the worst.

Trisha Rich:

Yay.

Alan Mills:

I would’ve said we were the worst before many of us, mainly us in the MacArthur Justice Center started litigating some of these issues. We just ignored the issue entirely in this state, which is terrible. Other states still are ignoring the issue entirely. So I won’t say we’re the worst, but we’re certainly not cutting edge. And partly it’s because our medical care is among the worst in the entire country. So in that case, the care that trans people get is going to be terrible in general, let alone the trans-specific care. Right.

Trisha Rich:

By virtue of being incarcerated. And I don’t really want to get too political because that’s probably a different podcast, and here the CBA, they keep a tight leash on me, but as we head into, I think we just had an election here in America and

Alan Mills:

Did not escape my notice. No.

Trisha Rich:

As we head into the next administration, how do you expect the landscape to shift, if at all, maybe from your vantage point, the last administration wasn’t particularly progressive on this issue, and you think that’s not really going to change too much?

Alan Mills:

It’s hard to know historically, and oddly enough, Republican administrations have done more for prisoner rights than have Democratic administrations. Neither has been good on this building. This mass incarceration system that we have today has been very much a bipartisan effort. However, during Trump’s last administration, he passed the Second Chance Act and Biden did nothing like that. And of course, Biden was the author and major pusher of the 1984 crime bill, which it lengthened everybody’s sentences and made all kinds of bad things happen. Bill Clinton was the one who passed the prison Litigation Reform Act, which made it much harder for prisoners to get anything in prison, which we’ll talk about in a minute.

Nikkie Marcotte:

Oh. Yeah, we’ll definitely get into that

Alan Mills:

For sure. But that’s all democratic, that’s all a democratic bill. On the other hand, some of the judges that you have appointed are very hostile to prisoner rights, and there’s a real growing feeling in the United States Supreme Court of hostility to prison rights in general. So I’m not sure which of those two is going to happen during this administration. And Trump, as in many things, is hard to predict.

Trisha Rich:

Well, of course the CBA is nonpartisan as this podcast, but I am not as a Democrat. I have always felt like when I see Democrats at the national level, they’re often tripping over themselves to prove how tough on crime they can be. And that this is one of the implications of that.

Alan Mills:

It’s not just the national level. Same thing in Illinois.

Trisha Rich:

Right, right. Okay. And so one other question I want to ask about politics is as an observer of elections in the local, state and federal level, it seems to me that this has become somewhat of a political football in Illinois. We’re blessed to not have too many political television ads, but as regular listeners know, I hail from the greatest state in the country Michigan, and it happens to be one of the six states that now matter in federal elections. So when I am back in Michigan, I see ad after a a and over and over again. I saw even in this last cycle, so-and-so believes in sex changes in prison, et cetera, et cetera. And it seems like it’s become this very hot button political issue in a way that I don’t, this might be the softest question you’ll get today in a way that I don’t think is helpful for the discourse, at least from my perspective.

Alan Mills:

I mean, yeah, it’s a softball question. I completely agree. I went to a conference in Georgia just before the election and was shocked at how many ads there were there because coming from Illinois, you can kind of ignore it. It doesn’t show up on your TV all the time, and it certainly doesn’t show up on billboards. And just the drive from the airport to the hotel in Atlanta was overwhelming the number of political ads you saw, and at least a couple of them did talk about trans people in prison. I would say that whenever prisons become politicized, it’s bad news for everybody. The best work is done when it’s not in the headlines. And those headlines unfortunately, tend to be about the bad stuff. One of the reporters in town here told me it’s really hard to write articles that are meaningful about prison. On the one hand, nobody wants to hear this prisoner got out and did fine. That’s not a story, but that’s most people. But that’s not a story. On the other hand, if you write about the bad stuff in prison, just take medical care. You can write about one bad medical case today and tomorrow there’s going to be another one. And the day after that, there’s going to be another one. And you can’t just write stories every day saying prison medical care sucks. That’s not news either. So you tend to get the worst examples of what happens in prison is what makes the news. So the less it’s in the news, the better off we are

Trisha Rich:

As this podcast, I consider us a fellow member of the press. So I don’t want to shout out the press too much, but I will say everybody complains that the press is biased this way. The press is biased that way, and I always think they’re just biased toward a good story. And so that’s, I think exactly what you’re saying, the old adage of bleeding and bleeding. And so I think you’re exactly right about that.

Alan Mills:

It’s not even bleeding, it’s the uniformity of the problem. So it’s like there’s not a news hook all the time. It’s still bad and you can’t just write every day. It’s still bad. That could be the headline in the Tribune every day. Prisons are bad, but nobody writes that and nobody would buy the paper if that’s all they wrote

Trisha Rich:

About. Alright. I don’t know if the trip would write that would probably write. They could be.

Alan Mills:

I’m not saying they would publish it, but it would be a true headline.

Trisha Rich:

Nikki, you should jump in before the trip pulls their CBA sponsorship. That’s okay.

Nikkie Marcotte:

That’s okay. Now let’s jump back into Monroe a little bit and talk about, actually,

Alan Mills:

Can I say one more thing about politics? Sure. It’s odd in Illinois because during the last governor’s election, crime was the issue that was run on and the people who were raising crime as the issue lost. Nonetheless, the Democrats seem to be continually terrified that they’ll be attacked by being soft on crime, even though that Republicans lost overwhelming on that issue in the last election.

Trisha Rich:

I see that too. I mean, as somebody that lives in the city of Chicago, works in the city of Chicago, you two live in Chicago, you’re traveling around, I ride the trains, whatever, I’m walking around the loop, I hear people talking about crime, and that is not the Chicago I live in. And I don’t mean to discount the experiences of our friends and neighbors who live in neighborhoods that are much more dangerous than the one I live in. That is all true as well. But the vitriolic speech that has come out of this, the ads, again, coming into the next administration, I think we’re going to be hearing the word Chicago a lot on the national news. And I always say to people, that’s not the Chicago I know,

Alan Mills:

Right? Sorry,

Nikkie Marcotte:

I interrupted you. No, that’s okay. Let’s jump back into Monroe a little bit. Great segue. Smooth. Very. Yeah. So let’s talk a little bit about some of the kind of landmark and historical injunction rulings that the chief judge of the Southern District made, and then talk about the process of that kind of unraveling with the Seventh Circuit’s recent decision.

Alan Mills:

So I mean, there were really two trials in this case. So it’s a class action case on behalf of all trans people in the state of Illinois. And it really focuses on the medical care that they’re getting, although there are a few other issues in it, but it really focuses on medical care. And there were two lengthy trials held in front of the judge and it became very clear I was not there, but I have read the transcripts and talked to the lawyers. It became very clear during that the Department of Corrections simply didn’t take this seriously as an issue on the stand. Several Department of Corrections officials misgendered some of the plaintiffs in the case, and at least the rumor got back to the judge after she issued the first preliminary injunction that the warden at Menard had said, we don’t care what the federal court says, we’re going to keep doing things our way. So as a

Trisha Rich:

Result, judges notoriously loved that

Alan Mills:

Well, and she was not happy either. She had issued an order saying that the top officials in the Department of Corrections, including the warden, had to read the entire transcript and certify under oath that they had read it.

Nikkie Marcotte:

Awesome. That is a boss move.

Alan Mills:

So this is not a judge that’s afraid to rattle some cages. So there was a preliminary injunction or entered, I’m not good on time, but something over a year later, there was a trial that was supposed to be about a permanent injunction. We’ll talk about this supposed to be in a minute,

But it was supposed to be about the permanent injunction. And the proof there was that while the department had done some stuff, they really weren’t yet complying with the preliminary injunction. They really weren’t giving people the medical care that they needed and therefore the judge issued from the bench an oral ruling that the plaintiffs had won and told the department some things they had to immediately. And then a month or so later, and again, don’t hold me to the timeframes because I’m terrible at remembering when things happened, but she issued a written order spelling out in great detail the things that the department wasn’t doing, finding them to be in deliberate indifference about the medical care needed for trans prisoners and ordering to take various steps as well as talking about anyway, appointing monitors to make sure that the defendants actually carried out her orders.

Trisha Rich:

Let’s stop there for our first break

Nikkie Marcotte:

And we are back.

Trisha Rich:

Let’s jump right back into it.

Nikkie Marcotte:

Okay. So a little bit before the break, we were talking about the judges’ kind of historic preliminary injunction rulings and how IDOC was kind of struggling to follow that. So why was it that IOC was kind of struggling to follow those orders and what is it about the prison systems medical care here in Illinois that makes it difficult?

Alan Mills:

It’s a complicated question. So let me back up a little bit. So for those people who haven’t done a lot of work in the prison system, you may not know that Illinois’s medical Care is all provided by a private company. Wexford Health Sources Inc. So the state of Illinois contracts with that private corporation, private for-profit corporation to provide all the medical care that is provided throughout the prison system, whether it be TRANSCARE or cancer or whatever it may be, the private entity provides it. So that means that ultimately they’re the ones that are on the front line who have to provide this care. However, our position in the ACO U’S position in the Monroe case and our position in all of our medical cases is that the Constitution requires that the state of Illinois provide the medical care. How they choose to do that is up to them.

If they want to do it by hiring doctors, that’s fine. If they want to do it by contracting out somebody else, that’s fine. But nonetheless, it ultimately remains the responsibility of the state of Illinois. And the law is very clear that states can’t contract away their constitutional obligation. So even though it’s a private entity that’s doing it, the state still remains legally liable to make sure that its contractor is following the Constitution, which is what the judge found they weren’t doing. So yes, there’s another layer of bureaucracy to go through, but in terms of actually forcing this to happen, the judge has the right defendant in front of ’em, which is the officials of the Department of Corrections. Now, part of the problem was the Department of Corrections has set up this, I’ll call it a gerrymandered system, although gerrymandering usually refers to political drawing lines, but nonetheless, a gerrymandered system, one that they made up, which there was this transcare committee that was made up and rightfully it included some of the top medical people from the Department of Corrections as the state employees who oversee the entire system and oversee WEX Ford’s contract compliance.

So it included the chief medical director as well as the chief of mental health, but it also included a bunch of security people and then it included people from Wexford as well. So that group got together and decided what medical care was required. And that was one of the things the judge thought was just outrageous, is that you have people who aren’t doctors who have nothing to do with medical care making decisions about what the proper care is for a trans person, something that wasn’t done for anybody else. I mean, you would never have a guard sitting in decide whether or not somebody required a cast for a broken leg or

Nikkie Marcotte:

Chemo for cancer treatment

Alan Mills:

Or chemo for cancer, although I don’t want to talk about how bad that is.

Nikkie Marcotte:

It’s debatable another topic for another day.

Alan Mills:

Yeah, a different topic, which I don’t only want to set that out as a gold standard at all, but any other kind of medical care is not decided by security staff. Whereas here, they gave security staff a vote in it and the judge thought that was terrible and ordered that not to happen anymore. In theory, they set up a committee then to make medical decisions, which did not include security staff, but I think one of the things the judge was not convinced of that in fact they were separating the security issues from the medical issues.

Nikkie Marcotte:

And what do you mean by that? Separating the security and the medical issues?

Alan Mills:

I think that they were still getting input from the security side as to what care was appropriate for particular trans people, which is again, not something that a non-medical professional should have any input into. But I mean the argument about anything in prison is always security comes first. Our main job is to lock people up and punish people and everything else is secondary. And that’s really a problem when you’re talking about medical care.

Nikkie Marcotte:

So what were some of the security reasons that were underlying the decision to deny gender affirming care for trans prisoners?

Alan Mills:

Well, I think part of it was where they were placed. It certainly was a big deal. They wanted to review person by person who belonged in a men’s prison, who belonged in women’s prison regardless of what their gender was. And that, of course, is again, I think totally inappropriate, but that’s the security of saying they’re afraid that if they put biological men in big quotes, I’m making quotation marks in my fingers, you can’t see into a women’s prison. Then they would just turn around and rape everybody and therefore that’s a security issue. So those are the kinds of things that security is concerned about. There’s always a need for security interface with the medical department. So if somebody’s going outside, for example, for surgery, then they have to be transported there by somebody. The doctors don’t put them in their car and drive them there. They have to arrange guards and guards at the medical facility, guards at the prison to transport them. The medical records have to be transported. So all that kind of stuff does require coordination between medical and security. But that’s different than giving security a say in what medical care is going to be provided. So they were, I think, melding together the issues of security with coordination with security and decision making by security.

Nikkie Marcotte:

And aside from denying gender affirming care based on these security principles, there’s competing mental health treatment and diagnosis tension there. Can you talk a little bit about that and the appropriate mental health care that’s needed but is not being received?

Alan Mills:

Yeah, there are really several problems there. I mean, the most fundamental problem is that in a prison, in order to be entitled to any of this gender affirming care, you have to have a diagnosis because this is considered a medical problem. So therefore you have to be diagnosed with gender dysphoria. A lot of trans people say, I don’t have gender dysphoria. I’m quite comfortable with my gender as it is. So you have to sort of pathologize yourself in order to get any of the care that you need. And that is of course a problem. But beyond that, I think there’s been a definite learning curve for the Department of Corrections to figure out that trans people may need different treatment than anybody else, that they have problems that have, are unique to being trans. And I know that they did eventually after some litigation, including some that we were involved in, send people off to some national trainings to get some of their doctors trained in the things like just to use one example, many trans people have suffered some severe trauma and not always worked through all that trauma.

If you have some unresolved trauma, then group therapy, which is the default in the Department of Corrections for most mental health issues, can be very triggering. And nonetheless, they’re being assigned to group therapy just like everybody else without understanding that that might actually make things worse rather than better depending on your individualized assessment. And that’s kind of the problem with the Department of Corrections in general. They hate doing individualized assessment about anything. They hate providing anything separate and different to a prisoner than everybody else gets. Partly they don’t trust their staff. Unfortunately, the department has a long history of letting gangs run the world, and that all sort of ended in the mid nineties. But I think that fear remains within the department that if we allow any sort of discretion to anybody in the Department of Corrections, then it will swing back to the pendulum of swing back to where it was before, and we’ll have guards or anybody else accepting bribes and doing this and that and the other thing in order to favor some prisoners. So they like uniformity. And uniformity is not what you need for any mental health care. It’s not what you need for any sort of disability accommodations. Anybody’s litigated, the A DA knows that it requires individualized assessments. And it’s certainly true when you’re talking about trans people. You can’t treat all trans people the same, let alone trans people and non-trans people the same.

Nikkie Marcotte:

Okay, so the chief judge’s injunction rulings kind of address these tensions, these issues. And so there was a trial and then following the trial of some months later, she issued her final ruling, which now we kind of jump into the Seventh Circuit opinion and the PLR. So let’s lay the backdrop for this problem. So first, the order was styled as a preliminary injunction finding as opposed

Alan Mills:

To, yes, second order, right,

Nikkie Marcotte:

As opposed to a final or a more permanent injunction finding. So what was the lead up to the Seventh Circuit appeal?

Alan Mills:

So the Prison Litigation Reform Act sets some very specific and narrow requirements for injunctions in general. Preliminary injunctions can only be in effect for 90 days. After that, they disappear of their own court without any finding that you’ve complied with ’em or anything else. They just disappear. And injunctions have to be narrowly drawn and least intrusive to remedy the constitutional violations that are found. Even permanent injunctions. After two years, defendants can come in and say, we’ve complied. And then the burden shifts back to the plaintiff in order to prove their case over again. So you may litigate a case for eight years when, and then two years later have to re-litigate the entire case. And there’s a very quick timeline. The judge has to make a decision within 90 days of the state saying this should disappear. So in general, injunctions are really difficult under the PRA. And just to step back one step further, the whole point of the PRA allegedly and the PRA, by the way, is the Prison Litigation Reform Act. Sorry, I use too many acronyms here, but I’m in my own world and so I try not to do that. So the Prison Litigation Reform Act in general was justified based on the fact that too many frivolous cases were being filed. But obviously if you have an injunction, it’s not a frivolous case because you’ve won by definition, that’s not a frivolous case if you want it.

Nonetheless, those limitations still apply in this case, even though the judge at the end of the trial said she was entering a permanent injunction, when the written order came out, the caption said it was a preliminary injunction, and at least there’s some language in there that the Seventh Circuit thought was applying the standards for a preliminary injunction that is likelihood of success rather than an actual finding of success. So for several years, everybody acted defendants, plaintiffs and the court as if this was a permanent injunction way past the 90 days, they appointed monitors. There were reports as to compliance, they’re given to the judge, there are emotions to enforce it, and nobody said boo about it. And then once it looked very likely that the judge was going to find the Department of Corrections in contempt, they suddenly discovered that this thing was in fact a preliminary injunction, not a permanent injunction, and said, you can’t always contempt because this thing disappeared like three years ago. Nobody noticed it, but it disappeared like three years ago and there’s nothing to enforce. And the judge disagreed and said, no, this is a permanent injunction. Sorry I made a typo, but it’s a permanent injunction. Defendants appealed. And the seventh Circuit agreed with the Department of Corrections that it didn’t matter how people had acted, that wasn’t a waiver. In fact, it said preliminary injunction. So it’s a preliminary injunction and therefore there is nothing binding the department to do anything right now.

Trisha Rich:

Alright, with that, let’s head into our final break.

Nikkie Marcotte:

So the seventh Circuit, early December comes down with that decision basically undoing about five to six years worth of preliminary injunctions. So I guess the question, Alan, is where does that leave the trans prisoner litigation landscape?

Alan Mills:

So the good news of the bad news here is that the Seventh Circuit didn’t say that the injunction shouldn’t have issued. It didn’t say that trans people didn’t have these rights. It didn’t say that the judge went beyond the evidence. It only narrowly focused on this technical issue as to whether that was a preliminary or permanent injunction,

Nikkie Marcotte:

Purely procedural,

Alan Mills:

Purely a procedural issue. It didn’t say anything at all about the merits of the case and made it very clear at the end of his opinion that it was not intending to say anything at all about the merits of the case. So this leaves it open again to go back to the trial court, and that’s what the Seventh Circuit remanded to the trial court. And it clearly said the judge is free to enter a permanent injunction if the evidence says they should, but I think the defendants are clearly going to come in and I think at least orally have already made this argument that things have improved so much that there’s no longer a constitutional violation and therefore they’ll have to try the case all over again to decide whether or not the department is still being deliberately indifferent to the healthcare needs of trans people.

Trisha Rich:

Can I just jump in and ask a quick question? How do you pay for that, Alan?

Alan Mills:

How do you pay for all of this litigation?

Trisha Rich:

I am thinking about starting all over at Square one. How do you pay for this?

Alan Mills:

The same way all of us pay for our litigation, which is we ask people to donate money to us, we ask for grants.

Trisha Rich:

Is there anywhere on the Uptown People’s Law Center where people can go and donate there?

Alan Mills:

Just as a matter of fact is we have a website, U PLC Chicago all one word.org, and there’s a donation button every single page in that website.

Trisha Rich:

I had already previewed one of my questions as the biggest softball question and I managed to come up with one other.

Nikkie Marcotte:

So in the wake of the Seventh Circuit opinion, has there been any indication that that IDOC is just no longer complying with the preliminary injunction orders that have now been vacated?

Alan Mills:

Well, they weren’t complying before, so yes, I’m not aware of anything that’s gotten worse since the Seventh Circuit said it, but they weren’t complying in the first place, which is why this whole issue came up because the plaintiffs were moving for contempt because they weren’t complying. So it hasn’t gotten better, I don’t think it’s gotten much worse. They were doing a terrible job before the Seventh Circuit said they didn’t have to do a good job anymore, and they still are.

Nikkie Marcotte:

Okay. So the Seventh Circuit really just leaves it open for the possibility of entering more procedurally Correct. Injunction orders. Right, right.

Okay. So I know we were talking a little bit about the national stage earlier and kind of the backdrop of this political season. And actually just the day before the Seventh Circuit issued its opinion in Monroe, the Supreme Court of the United States heard oral arguments on the Retti case out of Tennessee related to gender affirming care for trans and gender nonconforming youth in the state of Tennessee. And I guess I’m just kind of curious because not only was that a landmark oral argument in and of itself, chase str Gio being the first openly trans individual to argue before the Supreme Court. But I’m curious as to kind of where TTI is potentially going to take us and what that means for the Monroe class action.

Alan Mills:

I mean, obviously it depends on how far the Supreme Court goes. I mean, they could write a very narrow opinion, obviously they could say the plaintiffs win, but given the oral argument, that seems somewhat unlikely. Although it’s always hard to judge what judges are going to do based on oral arguments.

Trisha Rich:

Yes, it’s a real mystery.

Alan Mills:

I have been both pleasantly and unpleasantly surprised by cases coming out either in my favor or against me based on oral arguments that I thought were either great or bad. So I don’t want to predict what the Supreme Court to do, but obviously the best case scenario is they say plaintiffs lose. Of course, they can require gender affirming care for juveniles. If they rule the other way in favor of the plaintiffs, then it depends on how far the Supreme Court goes. It could issue a very broad opinion saying basically that trans people aren’t covered under any of the statutes. There are no protections for them at all, which would essentially end the Monroe case, or they could have a much narrower ruling, which seems the way the court seems to be going these days is to issue quite narrow rulings rather than really broad ones. But again, I’m not about to predict what the Supreme Court is going to do.

Nikkie Marcotte:

Right. Yeah. So those very narrow carve outs. But there is a concern because the Tennessee Ag and their briefing very specifically asked the court to more broadly apply the Dobbs ruling, the one that overturned Roe versus Wade, and to kind of extend those same principles to gender affirming care, not just for youths in Tennessee, but for youths and incarcerated individuals across the country.

Alan Mills:

Yeah, I think that is definitely the danger. Obviously, judge Thomas and the Dobbs case, I dunno if it suggested is too strong a word, but certainly hinted that trans rights were going to be an excellent chalking block. But frankly, he has taken the position ever since he was on the court much broader than that, which is that eighth Amendment doesn’t apply to anything about prisons at all. If the Supreme Court should ultimately adopt that, then I would be out of a job, I guess. Well, I mean, we do some other stuff other than prisons, but our prison litigation would be very different than it is now because eighth Amendment is what we basically litigate day in and day out, and it’s the fundamental basis of the Monroe class action case as well as virtually every prison litigation that’s brought. There are some options out there. One is the state constitution, and there’s nothing the Supreme Court can do to say that Illinois can’t provide greater protections to trans people than does the United States Constitution. So either our laws or our Constitution could certainly overrule anything and protect them. And of course, the Department of Corrections could just do the right thing. They’re not required to do the minimum that’s required by the Constitution. They could actually be decent people. So I mean, there are other options out there, but nonetheless, it would be obviously a huge damage if the Supreme Court did the sort of maximal decision.

Trisha Rich:

Okay. So

Alan Mills:

I’d not depressing note.

Trisha Rich:

I know I’d like to end on a slightly more positive note here if our listeners want to get involved. Alan, what’s a way they can do that? I mean, I always hate to be like, call your state legislator. It feels like unhelpful advice. So if people want to get involved, what’s a good way to do that?

Alan Mills:

Well, I do think they should call their state legislature because there is definitely a movement in our state legislature to sort of put up some firewalls right now against what is coming. And I’m not sure that this issue is really on too many people’s agenda, although I know it’s on some legislator’s agenda. So the more calls that legislators who aren’t already committed to this issue get the better off we are. So I think that that’s really important. And I think it’s also important because one of the things that happens anytime I go to Springfield, which isn’t a lot, I try to avoid Springfield because it drives me crazy, but one of the things I hear all the time when I do go from legislators is we get lots and lots of calls about being too soft on crime, but nobody ever calls us up and said, you’re too tough on crime. So I know there are people out there who care about these issues and they’re just not heard by their legislature. So I think calling your legislature is important. Donating to people like us in the A CU is also very important. That is how we can do these cases. So those are the two things I would suggest.

Trisha Rich:

And if you’re a lawyer and you want to work on one of these cases, what do you do?

Alan Mills:

Well, you can call me or email me [email protected]. We take volunteers all of the time. You can also ask the district court here in the Northern district or in the Southern district to voluntarily appoint you to a prisoner case. They will involuntarily appoint people all the time, but they love it. If somebody comes in and says, I would like a prisoner case, please give it to me.

Trisha Rich:

And that is our show for today. I want to thank our guest, my friend Alan Mills, for his efforts across an entire career of working for these causes and this interesting conversation. Thanks Alan for being here today.

Alan Mills:

Thanks for having me.

Trisha Rich:

I also want to thank Nikki for being here today, our executive producer, Jennifer Byrne, for the work she does behind the scenes that makes this whole machine work. As always, a huge thanks to Adam Lockwood on Sound Engineering and to everyone of the Legal Talk Network family, they’re truly the very best in the business and we are lucky to work with them. Remember, you can follow us and send us comments, questions, or episode ideas on Facebook, Instagram X or whatever it’s called now at cba, at theBar, all one word. Please also rate us and leave your feedback on Apple Podcast, overcast Spotify, or wherever you download your podcast. It always helps us get the word out. Until next time, from everyone here at the Chicago Bar Association, thank you for joining us and we will see you soon @theBar.