41-B. Equal Protection and Programming
Many prison programs fail to address issues that are specific to female prisoners because the majority of the prison population is usually male. Nonetheless, being smaller in number is not a reason to be discriminated against. Women prisoners should know that in many situations, they have the right to seek programs and services substantially equivalent to the ones offered to males.
If you feel that you have been unfairly discriminated against, there are two different legal steps you can take depending on the type of discrimination you think you are experiencing. If the discrimination concerns vocational and educational programs in prison, a claim may be brought under a federal law called Title IX of the Education Amendments of 1972.7 Otherwise, a challenge can be brought under the Equal Protection Clause of federal and state constitutions.8 Each type of action will be explained below.
The Equal Protection Clause: The Equal Protection Clause guarantees that people must be treated equally if they are similarly situated. To win an equal protection challenge, you must demonstrate that:
(1) groups of male and female prisoners are "similarly situated,"9
(2) the groups are treated differently on the basis of gender, and
(3) the difference in treatment is not "substantially related" to a legitimate government objective.10" Similarly situated" means that two groups share common features, or are the same in all major ways, except for their gender.11 Courts have held that groups of male and female prisoners are similarly situated in some circumstances.12 In other cases, however, courts have decided that male and female prisoners are not similarly situated, based on factors such as the number of inmates in their prison, the lengths of their sentences and differences in security classifications.13 If you are able to show that your group is similarly situated to a group of male prisoners, the next step is to look at the type of different treatment you receive. Men and women prisoners do not need to be treated identically. The Constitution only requires that your treatment be "substantially equivalent" or that men and women prisoners receive "parity" of treatment.14 In other words, you need to show that the difference in treatment that you are challenging is meaningful. In Betts v. McCaughty, for example, the court held that small differences in the grooming accessories made available to men and women inmates were not significant enough to amount to a constitutional violation.15
The last step is to look at the reason for the different treatment. Prisons are actually allowed to discriminate between similarly situated male and female prisoners if the different treatment is "substantially related" to important prison goals, such as safety and security.16 In Mathis v. Monza, for example, the County...
