Rufus West v. Dylon Radtke ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 20-1570
RUFUS WEST,
Plaintiff-Appellant,
v.
DYLON RADTKE, Warden, ∗ et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-cv-482-pp — Pamela Pepper, Chief Judge.
____________________
ARGUED SEPTEMBER 22, 2021 — DECIDED SEPTEMBER 16, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and BRENNAN,
Circuit Judges.
SYKES, Chief Judge. Rufus West is confined at Wisconsin’s
Green Bay Correctional Institution where he must undergo
strip searches by prison staff on regular occasions—namely,
∗ We substitute Dylon Radtke for Scott Eckstein in his official capacity as
Warden of the Green Bay Correctional Institution. See FED. R. APP.
P. 43(c). Eckstein remains a defendant on the individual-capacity claim.
2 No. 20-1570
when he leaves and reenters the prison, during lockdowns,
before and after visits from outsiders and certain other
movements within the facility, and whenever directed by a
prison supervisor. Under prison policy two guards partici-
pate in every strip search, one who directly performs it and
another who observes to ensure that it is performed proper-
ly.
West is a Muslim. Strip searches by prison guards of the
opposite sex violate the moral tenets of his faith, which
prohibit him from exposing his body to a woman who is not
his wife. In July 2016 he was required to submit to a strip
search by a guard who is a transgender man—a woman who
identifies as a man. West objected on religious grounds but
was refused an accommodation, and the transgender guard
participated in the strip search as the observing officer. After
this incident, West requested an exemption from future
cross-sex strip searches. The warden denied the request and
told West that he would be disciplined if he objects again.
West responded with this lawsuit against the warden and
various corrections officials. He chiefly seeks an injunction
against cross-sex strip searches under the Religious Land
Use and Institutionalized Persons Act of 2000 (“RLUIPA”),
42 U.S.C. §§ 2000cc et seq., which prohibits a prison from
substantially burdening an inmate’s religious exercise unless
doing so is the least restrictive means to further a compelling
governmental interest. Separately, he asserts a violation of
his Fourth Amendment right to be free from unreasonable
searches.
The district court dismissed the constitutional claim
based on circuit precedent holding that a prisoner has no
Fourth Amendment interest against visual inspections of his
No. 20-1570 3
body. West asks us to reverse this ruling based on Henry v.
Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc), which over-
ruled that precedent.
The RLUIPA claim failed on cross-motions for summary
judgment. The judge concluded that West had not shown a
substantial burden on his religious exercise because he was
subjected to only one cross-sex strip search and it’s not clear
when others will occur. The judge also determined that
cross-sex strip searches are permissible in any event as the
prison’s only means to avoid unlawfully discriminating
against its transgender employees.
We reverse. Henry revives the Fourth Amendment claim.
And West is entitled to judgment in his favor on the RLUIPA
claim. There’s no dispute that his objection to cross-sex strip
searches is both religious in nature and sincere. The prison
has substantially burdened his religious exercise by requir-
ing him to either submit to cross-sex strip searches in viola-
tion of his faith or face discipline. The burden is unjustified
under RLUIPA’s strict-scrutiny standard: accommodating
West’s request for an exemption from cross-sex strip searches
will not violate the antidiscrimination rights of transgender
prison employees under Title VII of the Civil Rights Act of
1964 or the Equal Protection Clause of the Fourteenth
Amendment. Accordingly, we remand for entry of appropri-
ate injunctive relief on the RLUIPA claim and further pro-
ceedings on the Fourth Amendment claim.
I. Background
West is serving a lengthy prison term imposed by a
Wisconsin court and is confined in the state prison in Green
Bay. According to his Islamic beliefs, he is forbidden to
4 No. 20-1570
expose his naked body to anyone but his wife. This precept
compels him to shield the area between his naval and knees
from others, especially from those of the opposite sex.
Knowingly violating the nudity prohibition will condemn
him in the afterlife, with greater condemnation resulting
from cross-sex violations of the taboo.
As a prisoner West is occasionally subjected to strip
searches of his naked body. He submits to these searches
because he understands their role in prison administration
and because Islam compels him to avoid unnecessary con-
flict. But he draws a line between strip searches conducted
by male guards and those conducted by female guards.
Exposing his naked body to a woman who is not his wife is
the more serious violation of his faith, so he objects on
religious grounds to being strip-searched by female prison
employees.
The Green Bay Correctional Institution, like other state
prisons, conducts inmate strip searches pursuant to policies
promulgated by the Wisconsin Department of Corrections.
The Department defines a strip search as “the examination
of [an] inmate’s clothing and body and a visual inspection of
his or her body, so as to permit a visual inspection of the
person’s breasts, buttocks or genitalia.” Wis. Div. of Adult
Insts. Policy # 306.17.02 p.2 (Mar. 26, 2015). Strip searches are
conducted in several circumstances, including when an
inmate leaves or enters the prison, before certain movements
within the prison, before and after visits with those outside
the prison, during periodic lockdowns, or at any time as
directed by a prison supervisor. Id. # 306.17.02(III)(D).
The policy explains how strip searches are conducted.
Two staff members are required: one prison guard “directly
No. 20-1570 5
observ[es]” the inmate being searched while a second guard
“observes the first [guard]” to ensure that the search is
properly conducted. Id. # 306.17.02(III)(E). Both guards
“shall be in close proximity to the inmate.” Id.# 306.17.02(III)(E)(b).
The policy specifically prohibits “cross gender” strip
searches “except in exigent circumstances.” Id.# 306.17.02(III)(A). This rule follows a regulation promulgat-
ed by the federal Department of Justice pursuant to the
Prison Rape Elimination Act of 2003 (“PREA”), 34 U.S.C.
§§ 30301 et seq., under which “cross-gender” strip searches
are prohibited “except in exigent circumstances or when
performed by medical practitioners.” 28 C.F.R. § 115.15(a).
The term “gender” is not specifically defined; neither the
prison policy nor the federal regulation specifies whether the
term is synonymous with “sex”—that is, biologically male or
female. See, e.g., Sex, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“The sum of the peculiarities of structure and function that
distinguish a male from a female organism; gender.”);
Gender, GARNER’S MODERN ENGLISH USAGE (4th ed. 2016)
(describing the interchangeability of and possible distinc-
tions between “sex” and “gender”).
Nor does the DOJ’s guidance provide a definition. The
guidance is vague and suggests only that a transgender
guard’s “gender” for purposes of PREA should be deter-
mined with reference to applicable legal authorities. Absent
such authorities, the DOJ recommends that the guard’s
gender should be an “individualized determination” made
“not solely on the basis of the [guard’s] biological gender.”
Frequently asked questions, NATIONAL PREA RESOURCE CENTER
6 No. 20-1570
(Apr. 23, 2014), https://www.prearesourcecenter.org/node/
3261.
The incident sparking this lawsuit occurred in July 2016.
West was visited by a friend from outside the prison, and
after the visit he was approached by Corrections Officer
Isaac Buhle for a routine postvisit strip search. Buhle, who
began working at the prison six months earlier, is a
transgender man—a woman who identifies as a man—and
was assigned the duties of a male guard.
West objected on religious grounds to being strip-
searched by Buhle. He asked if other nearby guards, all
biological males, could instead perform the search. One
agreed to do so, but Buhle still participated in the search in
the role of the observing officer. West says that Buhle saw
him naked from the observation position. Prison officials
respond that the setup of the room where the search oc-
curred should have prevented this. As they describe the
room, an inmate to be strip-searched enters one of several
three-sided stalls, each equipped with a “courtesy curtain”
to provide privacy from those not participating in the search;
the guard directly performing the search stands at the
opening while the guard in the observation role stands at an
angle to the opening. Still, West’s claim that his body was
exposed to Buhle during the search remains uncontradicted.
He is the only person who recalls the search. Buhle has no
recollection of the incident.
After the strip search, West filed a complaint with prison
officials and requested an exemption from cross-sex strip
searches. The warden denied the request in writing, stating:
“[T]he officer in question is a male and is qualified to com-
plete these duties. If in the future you are directed to submit
No. 20-1570 7
to a strip search by this individual or any other male staff
member[,] it is my expectation that you will comply.” The
security director responded separately, writing: “[T]his
person is a male[,] and any further issues on this will result
in discipline for you.” West then filed a complaint with the
Department of Corrections, but this request, and his subse-
quent appeal, were denied.
West then filed suit against the warden, the security di-
rector, Buhle, and several other prison officials; we refer to
the defendants collectively as “the prison.” His pro se com-
plaint raised several claims, just two of which remain rele-
vant on appeal: a Fourth Amendment claim under 42 U.S.C.
§ 1983 and a RLUIPA claim seeking an injunction exempting
him from cross-sex strip searches.
The district judge screened the complaint as required by
the Prison Litigation Reform Act. See 28 U.S.C. § 1915A. She
dismissed the constitutional claim based on circuit precedent
holding that a prisoner has no Fourth Amendment privacy
interest against visual inspections of his body. That prece-
dent has since been overruled by our decision in Henry. The
same screening order also rejected a request from West for
the appointment of pro bono counsel.
The parties filed cross-motions for summary judgment
on the RLUIPA claim. As noted, RLUIPA bars prisons from
substantially burdening an inmate’s religious exercise unless
doing so is the least restrictive means to further a compelling
governmental interest. The prison argued that its strip-
search policy—which so far had resulted in only one cross-
sex strip search of West—had not substantially burdened his
religious exercise. The prison argued in the alternative that
the policy was lawful in any event as a necessary means to
8 No. 20-1570
further several compelling interests, including complying
with the antidiscrimination requirements of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the
Equal Protection Clause of the Fourteenth Amendment. 1
The judge granted the prison’s motion and denied West’s,
ruling that the prison had not substantially burdened West’s
religious exercise. She emphasized that West identified only
one cross-sex strip search and that future cross-sex strip
searches were not likely to consistently recur. She also
doubted that West could be burdened by strip searches
conducted by transgender men given that he does not seek
an exemption from strip searches generally.
The judge went on to address the prison’s asserted inter-
ests in complying with antidiscrimination law. Although
West requested an accommodation based on the sex of the
guard performing the search, the judge reasoned that the
relevant trait for the analysis is transgender status. Using
this lens, she rejected the prison’s Title VII argument because
transgender status is not included in the statute’s list of
protected classes. She accepted the equal-protection justifica-
tion, however, based on caselaw in which transgender
plaintiffs had asserted colorable equal-protection claims.
Final judgment for the prison followed. West appealed,
still proceeding pro se. After reviewing the initial briefs, we
1 In the district court, the prison also asserted interests in effective prison
management and the medical privacy of its staff. It no longer relies on
those interests.
No. 20-1570 9
recruited pro bono counsel for him, ordered new briefing,
and held oral argument. 2
II. Discussion
We turn first to West’s RLUIPA claim and then address
his Fourth Amendment privacy claim, which we consider in
light of intervening circuit precedent.
A. The RLUIPA Claim
We begin with some background regarding RLUIPA. The
statute is the product of a long-running congressional effort
to limit governmental action that burdens the free exercise of
religion. The legislative initiative began in response to
Employment Division, Department of Human Resources v. Smith,
494 U.S. 872 (1990). There the Supreme Court held that the
Free Exercise Clause of the First Amendment does not
exempt religious exercise from neutral rules of general
applicability. Id. at 879. Smith thus left religious practice
vulnerable to laws that incidentally burden the right to the
free exercise of religion. That was a departure from
Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner,
374 U.S. 398 (1963), older cases that applied strict scrutiny to
laws that incidentally burden religious exercise.
Congress first responded to Smith with the Religious
Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.
§§ 2000bb et seq. RFRA provides that a government may not
substantially burden a person’s religious exercise unless
2 Nicholas Gowen and Geneva Ramirez of the firm Burke, Warren,
MacKay & Serritella, P.C., accepted the pro bono appointment. They
have ably discharged their duties. We thank them for their service to the
court and their client.
10 No. 20-1570
doing so is the least restrictive means to further a compelling
governmental interest. Id. § 2000bb-1(b). RFRA’s protections
expressly apply to laws of “general applicability,” id.
§ 2000bb-1(a), reflecting Congress’s judgment that “laws
‘neutral’ toward religion may burden religious exercise as
surely as laws intended to interfere with religious exercise,”
id. § 2000bb(a)(2). The goal, in short, was to restore through
statute the “compelling interest test” adopted in Yoder and
Sherbert for free-exercise claims. Id. § 2000bb(b)(1).
The story doesn’t end with RFRA. As originally enacted
the statute reached all laws, regulations, and governmental
actions—both state and federal. But the Supreme Court
curtailed RFRA’s reach in City of Boerne v. Flores, 521 U.S. 507,
529–32 (1997), which held that the statute’s application to the
states exceeded Congress’s Fourteenth Amendment en-
forcement power. This again left religious exercise vulnera-
ble to state action under the Smith rule.
Congress responded again, this time with RLUIPA. The
statute invokes Congress’s powers under the Spending and
Commerce Clauses to partially patch the hole left by City of
Boerne. See 42 U.S.C. § 2000cc-1(b). Relevant here, RLUIPA
provides that a federally funded prison may not “impose a
substantial burden on the religious exercise” of an inmate
unless it can prove that doing so “is the least restrictive
means of furthering [a] compelling governmental interest.”
Id. § 2000cc-1(a). This is not a new standard but rather a
second attempt to install the protections set out in RFRA’s
codification of the strict-scrutiny standard of Yoder and
Sherbert. Koger v. Bryan, 523 F.3d 789, 802 (7th Cir. 2008). A
prisoner whose religious exercise has been burdened in
No. 20-1570 11
violation of the statute may sue for injunctive or declaratory
relief. Charles v. Verhagen, 348 F.3d 601, 606 (7th Cir. 2003).
RLUIPA thus generously protects the religious exercise of
those confined in penal institutions. The term “religious
exercise” is amply defined as “any exercise of religion,
whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. § 2000cc-5(7)(A). To comply with
RLUIPA, a prison may be required to provide individual
exemptions to general rules, id. § 2000cc-3(e), and may also
need to “incur expenses in its own operations to avoid
imposing a substantial burden on religious exercise,” id.
§ 2000cc-3(c). Congress further instructed that RLUIPA
“shall be construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by the terms of
this chapter and the Constitution.” Id. § 2000cc-3(g).
A plaintiff raising a RLUIPA claim bears the initial bur-
den to make a prima facie case that a prison practice sub-
stantially burdens his sincere religious exercise. Holt v.
Hobbs, 574 U.S. 352, 360–61 (2015) (citing Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 717 n.28 (2014)). If he can
make this showing, the burden shifts to the defendant to
prove that the practice in question is the least restrictive
means to further a compelling governmental interest.
Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022).
West lost in the district court at each step in this frame-
work. The judge first determined that he had not made a
prima facie case that his religious exercise was substantially
burdened and then held that the prison satisfied the
compelling-interest test in any event. She therefore granted
the prison’s motion for summary judgment and denied
12 No. 20-1570
West’s. We review that ruling de novo. Markel Ins. Co. v. Rau,
954 F.3d 1012, 1016 (7th Cir. 2020).
1. Substantial Burden
As we’ve noted, a plaintiff raising a RLUIPA claim must
first show that the challenged prison practice substantially
burdens his religious exercise and that his request for a
religious exemption is sincere. See Ramirez, 142 S. Ct. at 1277–
78; Gonzales v. O Centro Espírita Beneficente União do Vegetal,
546 U.S. 418, 428 (2006). The challenged practice here is the
prison’s policy requiring West to submit to cross-sex strip
searches in violation of the moral tenets of his Islamic faith.
Everyone agrees that West’s objection to this practice is both
religious in nature and sincere. The dispute at this step of the
RLUIPA framework centers on whether the prison’s strip-
search policy is a substantial burden on West’s religious
exercise.
We are guided by the Supreme Court’s decisions in Hobby
Lobby and Holt, both of which addressed what constitutes a
substantial burden on religious exercise. In Hobby Lobby
employers sued the Secretary of Health and Human Services
under RFRA seeking an exemption from a federal law
requiring them to provide health-insurance coverage for
contraceptives in violation of their religious beliefs. 573 U.S.
at 701. Refusing to provide the coverage brought hefty fines
of potentially millions of dollars. Id. at 720. The Court held
that forcing the employers to choose between considerable
financial penalties and providing the coverage in violation of
their religious beliefs was a substantial burden on their
religious exercise. See id.
No. 20-1570 13
Holt considered the substantial-burden standard in the
context of a RLUIPA claim by a prisoner. A Muslim inmate
sought an exemption from a prison policy banning facial
hair so he could wear a half-inch beard in accordance with
his religious beliefs, which prohibited him from trimming
his beard. Holt, 574 U.S. at 358–59. Prison officials denied the
request, telling him that violating the policy would result in
discipline. Id. at 359. The Court held that requiring the
inmate, on pain of discipline, to shave his beard in violation
of his religious obligations substantially burdened his reli-
gious exercise. Id. at 361.
The pertinent lesson from Holt and Hobby Lobby is that a
substantial burden on religious exercise occurs when a
prison attaches some meaningful negative consequence to an
inmate’s religious exercise, forcing him to choose between
violating his religion and incurring that negative conse-
quence. See Jones v. Carter, 915 F.3d 1147, 1150 (7th Cir. 2019).
Or as we have previously stated, “a burden on religious
exercise … arises when the government ‘put[s] substantial
pressure on an adherent to modify his behavior and to
violate his beliefs.’” Korte v. Sebelius, 735 F.3d 654, 682 (7th
Cir. 2013) (alteration in original) (quoting Thomas v. Rev. Bd.
of Ind. Emp. Sec. Div., 450 U.S. 707, 718 (1981)). In assessing
whether a burden is substantial, we “focus[] primarily on the
intensity of the coercion applied by the government” and not
the centrality of the religious practice in question. 3 Id. at 683
(cleaned up).
3 We do not mean to suggest that a substantial burden may arise only
when a prison threatens an inmate with some negative consequence. A
substantial burden might also arise when a prison declines to provide an
inmate access to something that will allow him to exercise his religion.
14 No. 20-1570
Neither Holt nor Hobby Lobby suggested that the burdens
identified in those cases set “floor[s]” for establishing a
substantial burden on religious exercise. Jones, 915 F.3d at
1150. Although the relevant line—how much pressure is too
much—may be difficult to discern with precision, we know
from Holt that “significant disciplinary consequences” cross
it. Id. It’s clear, then, that the prison has put West to a choice
that RLUIPA aims to avoid. Prison officials told him, une-
quivocally, that he must submit to future strip searches by
Buhle (and presumably any other prison employee who is a
transgender man) and that refusal will result in discipline.
That’s a substantial burden as the Supreme Court has inter-
preted the statutory standard. And while the disciplinary
threats themselves cross the relevant line, we add that West
might additionally feel pressure to forgo activities—such as
visits with family or friends—to decrease his chances of
enduring a cross-sex strip search.
The prison counters that Buhle might not have seen West
naked during the first search, but that contention is immate-
rial to resolving the substantial-burden question. West seeks
prospective relief from the prison’s policy requiring him to
submit to future cross-sex strip searches.
The prison also emphasizes that West has been ap-
proached for only one cross-sex strip search in more than
two decades of imprisonment and cannot say when the next
one will occur. The argument, in other words, is that cross-
See, e.g., Schlemm v. Wall, 784 F.3d 362, 365 (7th Cir. 2015) (considering
whether a prison’s refusal to provide traditional foods for a religious
feast amounted to a substantial burden on religious exercise).
No. 20-1570 15
sex strip searches do not occur frequently enough to sub-
stantially burden his religious exercise.
One problem with this argument is that it gets the rele-
vant timeframe wrong. West was subjected to a cross-sex
strip search just six months after the prison hired Buhle. And
it’s worth noting that the prison does not argue that West
lacks an actual or imminent injury to support his standing to
seek injunctive relief. See City of Los Angeles v. Lyons, 461 U.S.
95, 101–02 (1983). (To be clear, we have no independent
concerns about his standing.)
The more fundamental problem with the prison’s argu-
ment is that a substantial burden can exist even if it is uncer-
tain when a prisoner will next be put to the choice of
violating his religious beliefs or facing discipline. As we’ve
explained, the prison regularly strip-searches inmates, and it
has told West in no uncertain terms that he must submit to
future strip searches conducted by Buhle. The prison’s policy
requiring West to submit to cross-sex strip searches and its
stated intention to enforce that policy with disciplinary
measures stands as a present and substantial burden on
West’s religious exercise.
The prison also suggests that the burden is illusory be-
cause West can simply ask a guard who is about to strip-
search him for an on-the-spot exemption from a cross-sex
strip search. But West’s request for an accommodation has
already been denied multiple times—first when Buhle
participated in the July 2016 strip search and several more
times when the prison denied his exemption request
through the inmate complaint process. There is no ambigui-
ty here. Prison officials have warned West that he will be
disciplined for refusing to comply with any future cross-sex
16 No. 20-1570
strip searches. That standing threat of punishment is a
substantial burden on his religious exercise. West is not
required to leave his RLUIPA religious-exercise rights to the
graces of individual prison employees who may or may not
be willing to violate prison policy by granting an on-the-spot
exemption.
Finally, the prison argues that West’s limited request for
an exemption from only cross-sex strip searches undermines
his claim because all strip searches—even those by male
guards—violate the nudity taboo of his religion. To the
extent this is an objection to West’s willingness to compro-
mise, the argument fails under Supreme Court and circuit
precedent. In Holt the prisoner proposed a half-inch beard
even though his faith obligations forbade him from trim-
ming his beard at all. 574 U.S. at 359. The Court nonetheless
found a substantial burden on his religious exercise. Id. at
361. In Schlemm v. Wall, 784 F.3d 362, 363 (7th Cir. 2015), a
prisoner sought game meat for a religious feast but was
willing to settle for ground beef. That proposal did “not
scuttle his claim, any more than Holt’s proposed compro-
mise (a short beard) did.” Id. at 365.
At times the prison’s argument goes beyond objecting to
compromise and begins to imply that West misunderstands
what his religion requires. The prison suggests that we can
infer that West is not really burdened by cross-sex strip
searches because prison life demands that he endure strip
searches generally. Put slightly differently, the prison main-
tains that West shouldn’t care who strip-searches him be-
cause the religious transgression is equally grave whether
his naked body is exposed to a male or a female guard.
No. 20-1570 17
As an evidentiary matter, this argument is contrary to the
record. At his deposition West explained that although the
nudity prohibition applies generally, he “would be punished
more harshly if … Officer Buhle strip search[ed] [him] than
if … a man strip search[ed] [him].”
The argument also misses the mark as a matter of law.
The substantial-burden inquiry does not ask whether West’s
understanding of his faith obligations is correct. “Courts are
not arbiters of scriptural interpretation,” Thomas, 450 U.S. at
716, so “the test for substantial burden does not ask whether
the claimant has correctly interpreted his religious obliga-
tions,” Korte, 735 F.3d at 683. West’s understanding of the
Islamic faith draws the line at cross-sex strip searches, and
“it is not for us to say that the line he drew was an unrea-
sonable one.” Thomas, 450 U.S. at 715; see, e.g., United States v.
Lee, 455 U.S. 252, 257 (1982) (refusing to entertain the argu-
ment that “payment of social security taxes will not threaten
the integrity of the Amish religious belief or observance”).
To be clear, courts are authorized to decide—indeed,
must decide—whether a request for a faith-based exemption
is in fact religious in nature and sincere. See Koger, 523 F.3d
at 797–98; see also Ramirez, 142 S. Ct. at 1277–78; Lee, 455 U.S.
at 257. These are “factual inquiries within the court’s authori-
ty and competence” that are “important to weed out sham
claims.” Korte, 735 F.3d at 683; see also Hobby Lobby, 573 U.S.
at 718 (“[T]he scope of RLUIPA shows that Congress was
confident of the ability of the federal courts to weed out
insincere claims.”). But there’s no dispute about the religiosi-
ty or sincerity of West’s beliefs. The prison’s argument on the
substantial-burden question is both factually and legally
flawed.
18 No. 20-1570
Requiring West to submit to cross-sex strip searches sub-
stantially burdens his religious exercise by forcing him to
either violate his religious duties or be disciplined. The
burden thus shifts to the prison, which must justify its policy
under RLUIPA’s strict-scrutiny test.
2. Compelling Interest; Least Restrictive Means
A substantial burden on an inmate’s religious exercise is
justified under RLUIPA only if the prison can show that it “is
the least restrictive means of furthering [a] compelling
governmental interest.” § 2000cc-1(a)(2). RLUIPA’s strict-
scrutiny standard, like others, is “exceptionally demanding.”
Hobby Lobby, 573 U.S. at 728. “[I]f a less restrictive means is
available for the [g]overnment to achieve its goals, the
[g]overnment must use it.” Holt, 574 U.S. at 365 (first altera-
tion in original) (quotation marks omitted). In applying the
test, courts cannot show “unquestioning deference” to
prison officials, id. at 364, but must themselves “consider
whether exceptions are required under the test set forth by
Congress,” id. (quoting O Centro Espírita, 546 U.S. at 434).
Critical to the proper application of the compelling-
interest test is viewing the asserted governmental interest at
the correct level of generality. The test is tailored “to the
person” seeking relief. Id. at 363 (quoting Hobby Lobby,
573 U.S. at 726). We must therefore “look beyond ‘broadly
formulated interests justifying the general applicability of
government mandates’ and ‘scrutinize[] the asserted harm of
granting specific exemptions to particular religious claim-
ants.’” Korte, 735 F.3d at 685 (alteration in original) (quoting
O Centro Espírita, 546 U.S. at 431); see also Holt, 574 U.S. at
363. “Put simply, we must examine both sides of the ledger
on the same case-specific level of generality: asking whether
No. 20-1570 19
the government’s particular interest in burdening this plain-
tiff’s particular religious exercise is justified in light of the
record in this case.” Yellowbear v. Lampert, 741 F.3d 48, 57
(10th Cir. 2014).
If a prison cannot satisfy the compelling-interest test, it
may need to “change [its] rules to accommodate [a] religious
practice[]” of a particular prisoner. Schlemm, 784 F.3d at 365.
Holt illustrates how this requirement applies in practice.
There prison officials argued that forbidding the prisoner
from growing a half-inch beard was necessary to detect
hidden contraband. Holt, 574 U.S. at 364. The Court
acknowledged the expertise of prison officials on matters of
institutional security, but the prison’s rationale still could not
survive the level of scrutiny that RLUIPA requires. Id. Even if
a half-inch beard could conceal contraband—a point the
Court doubted—the prison already searched inmates’ hair
and clothing for contraband, and it gave no reason why it
couldn’t do the same for a short beard. Id. at 364–65.
Although the burden RLUIPA places on prisons is de-
manding, applying the compelling-interest test must account
for the distinctive needs of penal institutions. As the
Supreme Court has explained, “[c]ontext matters” in apply-
ing the strict-scrutiny standard. Cutter v. Wilkinson, 544 U.S.
709, 723 (2005) (alteration in original) (quoting Grutter v.
Bollinger, 539 U.S. 306, 327 (2003)). Thus, “courts should not
blind themselves to the fact that the analysis is conducted in
the prison setting.” Holt, 574 U.S. at 369; see also Cutter,
544 U.S. at 722 (“We do not read RLUIPA to elevate accom-
modation of religious observances over an institution’s need
to maintain order and safety.”).
20 No. 20-1570
Here the prison offers two justifications for its cross-sex
strip-search policy, both rooted in antidiscrimination law. It
argues that granting an accommodation for West will violate
the equal-employment rights of its transgender employees
under Title VII and the Equal Protection Clause.
(i) Title VII
Everyone agrees that complying with Title VII is a com-
pelling governmental interest. We therefore narrow our
focus and ask whether denying West an exemption is the
least restrictive means to further this interest.
Title VII makes it unlawful to discriminate in “terms,
conditions, or privileges of employment” against an indi-
vidual because of his “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff bringing a
disparate-treatment claim under Title VII must show that he
belongs to a protected class and that he has suffered an
adverse employment action due to his membership in that
class. Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 779
(7th Cir. 2007). The prison bears the burden of establishing
that accommodating West would entail violating the
Title VII rights of its transgender employees.
In the district court, the prison suggested that this case is
about transgender-status discrimination. The judge thought
so too and cut short the Title VII inquiry because
transgender status is not listed as a protected class in the
statute. That was before Bostock v. Clayton County, 140 S. Ct.
1731, 1741 (2020), which held that transgender-status dis-
crimination amounts to sex-based discrimination for
Title VII purposes.
No. 20-1570 21
The prison also must show, however, that granting West’s
request for an exemption from cross-sex strip searches
would amount to an adverse employment action against its
transgender employees. Lewis v. City of Chicago, 496 F.3d 645,
652–53 (7th Cir. 2007). Adverse employment actions are
“material, sufficiently important alterations of the employ-
ment relationship.” Id. at 654 (quotation marks omitted).
This means “something more disruptive than a mere incon-
venience or an alteration of job responsibilities.” Nichols,
510 F.3d at 780 (quotation marks omitted).
Broadly speaking, three types of employment actions
meet the threshold:
(1) termination or reduction in compensation,
fringe benefits, or other financial terms of em-
ployment; (2) transfers or changes in job duties
that cause an employee’s skills to atrophy and
reduce future career prospects; and (3) unbear-
able changes in job conditions, such as a hostile
work environment or conditions amounting to
constructive discharge.
Barton v. Zimmer, Inc., 662 F.3d 448, 453–54 (7th Cir. 2011).
The last category includes severe and pervasive harassment:
“mistreatment of an employee by coworkers or supervisors
that is sufficiently severe to worsen substantially his condi-
tions of employment as they would be perceived by a rea-
sonable person in the position of the employee.” Herrnreiter
v. Chi. Hous. Auth., 315 F.3d 742, 745 (7th Cir. 2002).
The prison offers no argument under established
Title VII doctrine that exempting West from cross-sex strip
searches would inflict an adverse employment action on its
22 No. 20-1570
transgender employees. There’s no suggestion that a change
in compensation would result, and such an insignificant
change in job duties neither harms the career prospects of
transgender employees nor creates a hostile work environ-
ment. And it certainly does not amount to a constructive
discharge. Simply put, requiring strip searches to be per-
formed by guards of the same sex as the inmate does not
materially alter the conditions of employment. The prison
does not argue otherwise.
The prison’s Title VII argument would fail even if it could
show that exempting West from cross-sex strip searches
would lead to an adverse employment action. Title VII
permits sex-based distinctions in employment where sex “is
a bona fide occupational qualification reasonably necessary
to the normal operation of [a] particular business or enter-
prise.” 42 U.S.C. § 2000e-2(e).
Generally speaking, the exception is narrow and ap-
proves sex-based employment discrimination only where
“the essence of the business operation would be undermined
by not hiring members of one sex exclusively.” Torres v. Wis.
Dep’t of Health & Soc. Servs., 859 F.2d 1523, 1527 (7th Cir.
1988) (en banc) (quoting Dothard v. Rawlinson, 433 U.S. 321,
333 (1977)). The distinctive needs of prisons, however, often
allow sex-based adjustments to employment duties. See, e.g.,
Dothard, 433 U.S. at 335–36 (order and security in a prison
housing particularly violent inmates, including many sex
offenders); Everson v. Mich. Dep't of Corr., 391 F.3d 737, 753
(6th Cir. 2004) (prison security and inmate safety and priva-
cy); see also Reidt v. County of Trempealeau, 975 F.2d 1336, 1339
n.3 (7th Cir. 1992) (“Title VII’s proscription against sexual
No. 20-1570 23
discrimination in employment must be balanced against
issues of inmate privacy and jail security … .”).
Sex is a bona fide occupational qualification for perform-
ing strip searches of prisoners with sincere religious objec-
tions to cross-sex strip searches. RLUIPA requires a prison to
avoid placing a substantial burden on an inmate’s religious
exercise as long as it can do so without undermining a
compelling governmental interest. Here the asserted gov-
ernmental interest—complying with Title VII—expressly
allows sex-based limitations on strip-search duty because the
limitation is reasonably necessary to accommodate the
bodily-privacy and religious-exercise rights of inmates.
Courts have long recognized that sex is a trait relevant to
inmate privacy. “[W]hile all forced observations or inspec-
tions of the naked body implicate a privacy concern, it is
generally considered a greater invasion to have one’s naked
body viewed by a member of the opposite sex.” Harris v.
Miller, 818 F.3d 49, 59 (2d Cir. 2016) (alteration in original)
(quoting Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994));
see also Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135,
1141 (9th Cir. 2011) (“The desire to shield one’s unclothed
figure from [the] view of strangers, and particularly
strangers of the opposite sex, is impelled by elementary self-
respect and personal dignity.” (alteration in original) (quot-
ing York v. Story, 324 F.2d 450, 455 (9th Cir. 1963))). That
“basic fact of human behavior” sometimes allows or even
requires sex-based adjustments to prison guard duties. Smith
v. Fairman, 678 F.2d 52, 53 (7th Cir. 1982) (per curiam).
Federal law and the prison’s own policy acknowledge the
relevance of sex to prison strip searches. The prison already
bans “cross-gender” strip searches in accordance with
24 No. 20-1570
PREA. See 28 C.F.R. § 115.15(a). Even so, the prison insists
that denying West’s requested accommodation is consistent
with these rules. It argues that “gender,” which is left unde-
fined in the applicable prison policy and federal regulation
and guidance, means something other than biological sex.
There are reasons to doubt the prison’s interpretation of
these authorities. 4 That aside, we have previously explained
that Title VII allows prisons to prohibit cross-sex strip
searches for purposes of inmate privacy. In Canedy v.
Boardman, a male inmate asserted a constitutional-privacy
claim against a host of cross-sex privacy intrusions by female
guards, ranging from being observed while dressing and
showering to being strip-searched. 16 F.3d 183, 184 (7th Cir.
1994). The defendant prison officials responded that the
inmate’s privacy interests were outweighed by the prison’s
interest in providing equal-employment opportunities to
female guards. Id.We began by acknowledging that inmates have signifi-
cantly diminished privacy interests by virtue of their incar-
ceration. See id. at 185. We also explained that sex is not, as a
4 A Department of Corrections regulation provides that “[e]xcept in
emergencies, a person of the same sex as the inmate being searched shall
conduct [a] strip search.” WIS. ADMIN. CODE DOC § 306.17(2)(b) (June
2018) (emphasis added). The undefined term “sex” presumably takes its
ordinary meaning that refers to male and female biological traits. The
prison’s written policy instructs that strip searches “shall be conducted in
compliance with” this state regulation. Wis. Div. of Adult Insts. Policy
# 306.17.02(I)(A) (Mar. 26, 2015). And as explained, the DOJ suggests that
“gender” as used in 28 C.F.R. § 115.15(a) should be interpreted with
reference to applicable legal authorities such as the state regulation. West
does not raise this point, however, and our conclusions do not rest on an
interpretation of prison policy or state or federal regulations.
No. 20-1570 25
general matter, a bona fide occupational qualification for
employment in all-male prisons; thus, “prisons must be
allowed to utilize female guards to the fullest extent possi-
ble.” Id. at 186–87 (quotation marks omitted). At the same
time, however, inmates retain some “constitutional protec-
tion against invasion of their privacy by members of the
opposite sex.” Id. at 186 (quotation marks omitted).
To reconcile the conflicting interests of inmate privacy,
prison security, and employment rights, we applied the
Fourth Amendment’s requirement that all “searches must be
conducted in a reasonable manner.” Id. (quoting Bell v.
Wolfish, 441 U.S. 520, 560 (1979)). Applying the reasonable-
ness test, we held that “occasional or inadvertent sighting[s]
by female prison employees” do not violate a male inmate’s
privacy interests and hence require no accommodation. Id. at
187. We also held, however, that more intrusive cross-sex
privacy invasions—“like a strip search, in the absence of an
emergency”—are materially different. Id. These particularly
invasive cross-sex viewings require a reasonable accommo-
dation. Id. at 188.
Canedy demonstrates that Title VII does not require a
prison to permit cross-sex strip searches. The prison resists
this conclusion, arguing that Canedy is distinguishable
because it presented a clash between an inmate’s constitu-
tional rights and the statutory rights of female prison em-
ployees while here West’s claim is grounded in rights
conferred by statute. That distinction is immaterial. The
pertinent point from Canedy—no matter the source of the
right invoked there—is that it provides the prison with a full
defense to a charge that exempting West from cross-sex strip
searches violates Title VII.
26 No. 20-1570
The prison also contends that Canedy does not apply be-
cause it concerned a male prisoner and female prison guards
while this case concerns a male prisoner and a prison guard
who is a transgender man. But a prisoner’s right to be free
from highly invasive intrusions on bodily privacy by prison
employees of the opposite sex—whether on religious or
privacy grounds—does not change based on a guard’s
transgender status.
For all these reasons, the prison can accommodate West’s
request for a religious exemption from cross-sex strip
searches without violating Title VII. We turn next to the
prison’s additional (but overlapping) justification for deny-
ing the requested accommodation.
(ii) Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amend-
ment commands that “[n]o State shall … deny to any person
within its jurisdiction the equal protection of the laws.” U.S.
CONST. amend. XIV, § 1. As the Supreme Court has ex-
plained, the clause is “essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The prison
contends that accommodating West’s request for an exemp-
tion from cross-sex strip searches would violate the equal-
protection rights of its transgender male employees.
The first task in equal-protection analysis is to identify
the type of governmental classification at issue, which
determines the level of scrutiny that applies. See id. at 440–
41. The district judge and the prison have wrongly treated
the classification as one based on transgender status. We
deal with a sex-based classification because West asks for a
No. 20-1570 27
strip-search accommodation overtly conditioned on the sex
of the prison guards. See Tagami v. City of Chicago, 875 F.3d
375, 380 (7th Cir. 2017); see also Pers. Adm’r v. Feeney, 442 U.S.
256, 273 (1979).
When a sex-based classification is at issue, the burden is
on the state to demonstrate that the “classification serves
important governmental objectives and that the discrimina-
tory means employed are substantially related to the
achievement of those objectives.” Whitaker ex rel. Whitaker v.
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034,
1050 (7th Cir. 2017) (quoting United States v. Virginia, 518 U.S.
515, 524 (1996)). “Between [the] extremes of rational basis
review and strict scrutiny,” Clark v. Jeter, 486 U.S. 456, 461
(1988), “[t]his intermediate level of judicial scrutiny recog-
nizes that sex ‘has never been rejected as an impermissible
classification in all instances,’” Tagami, 875 F.3d at 380 (quot-
ing Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981)). Indeed,
“[p]hysical differences between men and women … are
enduring,” Virginia, 518 U.S. at 533, and “a community made
up exclusively of one [sex] is different from a community
composed of both,” id. (alteration in original) (quoting
Ballard v. United States, 329 U.S. 187, 193 (1946)).
The prison’s position is immediately in doubt given that
Canedy, though not an equal-protection case, endorsed a ban
on cross-sex strip searches. 16 F.3d at 187–88. Canedy aside,
the prison has not developed an argument that exempting
West from cross-sex strip searches would fail intermediate
scrutiny if challenged on equal-protection grounds. The
prison simply asserts that accommodating West would
require it to treat its employees differentially based on sex.
28 No. 20-1570
That’s obviously true, but the pertinent question is whether
the difference in treatment is unlawful.
A sex-based classification of this type is not unlawful.
Accommodating West’s request for an exemption from cross-
sex strip searches is substantially related to the important
governmental objective of respecting the RLUIPA and
constitutional-privacy rights of prison inmates. Indeed, the
prison already prohibits female guards from strip-searching
male prisoners except in exigent circumstances. If that is
constitutionally permissible—and it is—so too is West’s
requested accommodation.
In sum, the prison will not violate any employee’s
Title VII or equal-protection rights by exempting West from
cross-sex strips searches. On remand West is entitled to
appropriate injunctive relief.
B. Fourth Amendment Claim
Based on circuit precedent, the judge dismissed West’s
Fourth Amendment claim at screening for failure to state a
claim. See 28 U.S.C. § 1915A(b)(1). That ruling followed from
King v. McCarty, 781 F.3d 889, 900 (7th Cir. 2015), which held
that a prisoner has no Fourth Amendment privacy interest
against visual inspections of his body. After final judgment
below, we overruled King while sitting en banc, holding in
Henry that “the Fourth Amendment protects a right to bodily
privacy for convicted prisoners, albeit in a significantly
limited way, including during visual inspections.” 969 F.3d
at 774.
Fourth Amendment searches of prisoners, like all Fourth
Amendment searches, are evaluated for reasonableness.
Kentucky v. King, 563 U.S. 452, 459 (2011). To assess the
No. 20-1570 29
reasonableness of a search of a prisoner, “[c]ourts must
consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and
the place in which it is conducted.” Bell, 441 U.S. at 559. The
inquiry, however, accounts for the “wide-ranging deference”
owed to prison administrators in their adoption of practices
to maintain order and security. Henry, 969 F.3d at 783 (quot-
ing Bell, 441 U.S. at 547).
It is well established that strip searches of inmates per-
formed for security purposes are reasonable as a general
matter. See Florence v. Bd. of Chosen Freeholders, 566 U.S. 318,
328–29 (2012); Peckham v. Wis. Dep’t of Corr., 141 F.3d 694,
696–97 (7th Cir. 1998). West’s argument is limited to strip
searches by prison employees of the opposite sex. (Contrary
to the prison’s assertion, he does not contend that the rea-
sonableness of the searches turns on his religion.) As our
earlier discussion explains, this claim finds support in circuit
precedent holding that highly invasive cross-sex privacy
intrusions like strip searches are unreasonable under certain
circumstances (namely, absent exigent circumstances). See
Smith, 678 F.2d at 53; see also Canedy, 16 F.3d at 186–87 (dis-
cussing the substantive-due-process right to privacy before
applying the Fourth Amendment reasonableness test to
cross-sex privacy intrusions in prisons). On the other hand, it
is also clear that occasional and incidental cross-sex viewings
do not invade a prisoner’s Fourth Amendment privacy
interests. See Henry, 969 F.3d at 783.
The precise contours of the Fourth Amendment claim
need not be worked out on this appeal. It is enough to say
that Henry has revived West’s constitutional claim, and he is
entitled to develop it on remand.
30 No. 20-1570
III. Conclusion
For the foregoing reasons, we REVERSE the judgment and
REMAND for the entry of appropriate injunctive relief on
West’s RLUIPA claim and further proceedings on his Fourth
Amendment claim.