Inherently Transitory Exception to Save Transgender Inmate Putative Class?

Mootness, as one of the big three justiciability requirements, is a jurisdictional requirement on which judges do not normally postpone adjudication. But in a recent putative class action of transgender inmates, the D.C. district court held off on its determination to examine a rarely invoked exception to the mootness doctrine applied only in the class context.

Sunday Hinton, a transgender woman who was housed in the men’s unit of the D.C. jail, brought a putative class action against the District of Columbia asserting that the housing policy of the D.C. Department of Corrections (DOC) unlawfully discriminates against transgender individuals by housing inmates based on their anatomy, not gender identity.

Two significant factual changes early on in the case brought mootness concerns to the forefront.

First, within days of filing the action, the district had agreed to transfer Hinton to the women’s unit of the jail and, less than a month later, Hinton was released from custody pending trial on her criminal charges. Second, within two months of the start of the suit, the district amended its policy to eliminate the complained-of presumption of housing transgender inmates based on anatomy.

A case is moot where “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” As the court explained, however, “the bar for maintaining a legally cognizable claim is not high: ‘as long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Moreover, in class actions, the inherently transitory exception allows a court to exercise jurisdiction if (1) the named plaintiff’s individual claim might end before the district court has a reasonable amount of time to decide class certification and (2) some class members will retain a live claim at every stage of litigation. In this way, an otherwise certifiable class would not be denied for mootness of an individual plaintiff’s claim.

As to Hinton’s custodial release before the housing policy was revised, the court ruled that Hinton’s individual claim was moot because “a prisoner's transfer or release from a prison moots any claim she might have for equitable relief arising out of the conditions of her confinement in that prison.” It also ruled as moot all claims by transgender individuals who were in custody at the time she filed suit whose injuries stemmed from the former policy’s presumption of anatomy-based housing, as each was afforded a hearing under the presumption-free guidelines of the new policy.

As to the new policy, on the other hand, the court ruled that Hinton’s class claims could potentially survive under the inherently transitory exception if Hinton could put forward a certifiable class under Rule 23. In her amendment to her complaint, Hinton asserted that the new policy too was constitutionally infirm. Hinton claimed the policy discriminated against transgender individuals by placing them in protective custody at intake for days while a final housing determination is made, a “unique disadvantage not applicable to cisgender people.” The court agreed with Hinton that the amended claim presented an adjudicable controversy and that Hinton had standing to assert the claim, but explained that Hinton had one other problem: she had no putative class members for the claim. Hinton failed to provide evidence of a sufficiently numerous class of current or future transgender inmates who would face the new policy’s protective custody requirement to satisfy Rule 23 requirements. The court therefore denied class certification, but did so without prejudice to allow Hinton to conduct class discovery on the transgender population in DOC custody.

The court explained that it was convicted in this result as “non-numerical factors affecting the impracticability of joinder would militate in favor of certification if plaintiff demonstrated a sufficiently numerous class.” For example, “the population in DOC custody is fluid and unpredictable,” which can make the DOC's actions “essentially unreviewable without a class action, as no detainee could litigate his or her claim during the few days he or she is held in protective custody at intake, making joinder not just impracticable, but impossible.” The court also emphasized transgender inmates’ unique vulnerability as a group, as they are “likely to lack financial resources to press individual claims” and experience mistreatment from and often distrust law enforcement, and therefore “less likely to stick out their necks and join or commence litigation to challenge their conditions of confinement and vindicate their constitutional rights.”

Hinton’s claims, therefore, will continue to a second class certification battle post-class discovery.

Hinton’s case highlights not only the importance of recognizing potential exceptions to jurisdictional requirements that apply only in the class context but also the potential complexity of the numerosity analysis under Rule 23. As this action demonstrates, the court will not solely look to the cold, hard numbers when assessing numerosity; non-numerical factors must also be considered.

Hinton v. District of Columbia, No. 1:21-cv-01295 (D.D.C. Sept. 30, 2021).