The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Plaintiff seeks co-ed integration of California's prison population. Plaintiff challenges the policy of the California Department of Corrections and Rehabilitation to segregate all inmates by gender, claiming that this segregation is discriminatory in violation of the Fourteenth Amendment. Plaintiff contends that this policy must be analyzed under strict scrutiny, as it is comparable to race-based discrimination. However, plaintiff is mistaken.
Government actions based upon sex are governed by the equal protection clause of the Fourteenth Amendment. "Under the Equal Protection Clause gender and race are treated differently; race is accorded strict scrutiny whereas gender is only accorded intermediate scrutiny." Jeldness v. Pearce, 30 F.3d 1220, 1226 (1994) (state prisons are required by Title IX to make reasonable efforts to offer the same educational opportunities to women as to men, although the programs do not have to be identical in number or content).*fn1 Accordingly, sex-based classifications are justified only if substantially related to an important governmental objective, and "a party seeking to uphold government action based on sex must establish an exceedingly persuasive justification for the classification." U.S. v. Virginia, 518 U.S. 515, 524 (1996). Thus, this standard is not as strict as that which is used to determine whether a race based classification is constitutionally permissible. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 274 (1986).
The Eighth Circuit Court of Appeals stated that "[i]t is beyond controversy that male and female prisoners may lawfully be segregated into separate institutions within a prison system. Gender-based prisoner segregation and segregation based upon prisoners' security levels are common and necessary practices." Klinger v. Dep't of Corr., 107 F.3d 609, 615 (8th Cir. 1997).*fn2 See also Women Prisoners of Dist. of Columbia Dept. of Corr. v. Dist. of Columbia, 93 F3d 910, 926 (D.C. Cir.1996) ("the segregation of inmates by sex is unquestionably constitutional"),*fn3 citing Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989) (incarcerating D.C. female offenders at federal institution in West Virginia did not violate equal protection, even though similarly situated male offenders were incarcerated in D.C. facilities closer to D.C.). Although not directly on point, at least one Ninth Circuit case has recognized that prisons may have "bona fide reasons for segregation of the genders in prison." Jeldness, 30 F.3d at 1226. Finally, one district court in Oregon has found that "the prevention of heterosexual crime in prisons is a substantial government interest." Stevens v. Williams, 2008 WL 916991 (D.Or. 2008) (transgender prisoner's housing in male prison was not equal protection violation).
State prisons have long segregated prisoners by gender for legitimate and obvious security reasons. This segregation is substantially related to an important government objective, that is, the safety of the prisoners. Thus, this court finds that plaintiff fails to state a cognizable civil rights claim, and this action is dismissed.
In light of the above, plaintiff's request to proceed in forma pauperis is denied. 28 U.S.C. § 1915(2)(B)(ii).
IT IS HEREBY ORDERED that this action is dismissed without prejudice, and plaintiff's request to proceed ...