Frame of a sweat lodge in Lake Superior.
Jessika Stover is a transgender Native American woman from Idaho who is currently serving a prison sentence in a men’s prison. As you might imagine, this led to an awful lot of problems both large and small, recently detailed before an Idaho federal court that raised an interesting question – when religious identities get complicated in an institutional setting like a prison, how are the boundaries drawn?
The Idaho prison where Stover was imprisoned had a sweat lodge for Native American religious use, and Stover wanted to use it. She was told no – prison guards couldn’t see into the lodge while the ritual was underway, and Stover, as a woman with breasts in a men’s prison, would be at risk of sexual assault during that time. There’s some disagreement about whether or not Stover agreed, but at any rate a compromise was reached: she could use a smudging stick in her cell instead.
Which is all well and good, except that then a solid ten weeks of bureaucratic confusion occurred while she tried to get a smudging stick. At which point Stover became understandably frustrated and announced that she wanted to use the sweat lodge after all. A volunteer chaplain agreed to escort her to the lodge after the men had finished, to address the safety concern.
Here’s where it gets interesting. The court acknowledged that the prison’s interest in preventing sexual assault was a “compelling government interest” that might justify restricting religious practice, but only if done by the “least restrictive” means – meaning the chaplain’s offer to escort Stover would seem to solve the problem.
But the prison put forward another argument – that a two-spirit person’s use of the sweat lodge would potentially violate the religious beliefs of other sweat lodge users:
“[S]ome Native American tribes believe that allowing a two-spirited person (an individual suffering from gender identify disorder or gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would desecrate the religious sanctity of the lodge.”
The prison didn’t offer any evidence that any specific prisoners held this belief, however, so the court dismissed that argument:
Defendants have not establish[ed] that burdening one individual’s religious practice in an attempt to avoid burdening another’s religious practice is a compelling governmental interest under RLUIPA. …. The Court is persuaded that government officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious concerns, particularly where, as here, the asserted justification is based on mere speculation as to what some other inmates might find religiously objectionable.
The court never says if Stover herself identifies as two-spirited, and, as I mentioned above, the prison didn’t offer any evidence that anyone in the prison actually believed that. Rather, they seem to just be pulling out a Native American term – one that could be considered a theological term in some ways, particularly here in the context of ritual practice – as a way to get out of their obligation to accommodate Stover.
The interesting thing is that while many of the problems in the case – particularly the prison’s failure to protect Stover from sexual assault – might have been prevented had she been housed in women’s prison that matched her gender identity, the question of whether she, as a “two-spirited” person, can use a single-gender sweat lodge wouldn’t be, if Native American women held the same hypothetical objection. In that case, it’s hard to say how the line would be drawn.
I imagine there have probably been conflicts over shared religious spaces in prisons that might give some hints as to how such a case would play out if it ever happened – anyone know any?
As an aside, it’s worth noting that treatment of trans people in prisons ranges from inadequate and insensitive to completely horrible. Stover’s complaints, from not being provided appropriate bras to suffering multiple sexual assaults, show the many and varied ways that prisons fail trans inmates.