Appeals Court reverses transfer of prison inmate from men’s to women’s prison

The North Carolina Court of Appeals has reversed a lower court’s 2023 decision mandating the transfer of an inmate from a men’s prison to a women’s prison. The decision Wednesday split the court, 2-1, on how much information the court should have released to the public.

Inmate Ashlee Inscoe, formerly known as William M. Inscoe, first sought a transfer to a women’s prison in 2020, according to Judge Donna Stroud’s majority opinion. Prison officials denied the request. Among the concerns prison officials cited was Inscoe’s conviction for sexually assaulting a 13-year-old girl.

A trial judge issued a writ of mandamus ordering the transfer in November 2023, based in part on the change of the sex listed on Inscoe’s birth certificate from “male” to “female” in May 2023. Prison officials appealed the decision.

“The trial court’s erroneous conclusion that the Department had no discretion to assign Petitioner to a male prison facility was based directly on its legal error in considering Petitioner’s birth certificate as creating an irrebuttable presumption she must be classified as female,” Stroud wrote.

“The Department presented voluminous evidence that Petitioner is male or at least intersex,” Stroud wrote. “Petitioner presented no evidence that she is actually female; she claims to be intersex. The medical evidence showed she had full male anatomy” before a surgical procedure involving removal of testicles.

“The trial court’s unchallenged finding that Petitioner is ‘intersex’ does not eliminate the Department’s discretion to determine an appropriate housing assignment,” the majority opinion added. “In considering Petitioner’s request for transfer, the Department was

required to exercise its discretion to deal with actual physical realities of both Petitioner and other inmates, and its discretion is not limited by Petitioner’s personal ‘material reality,’ as she describes it, or her ‘gender identity.’”

“To protect all inmates in North Carolina’s prison facilities, the Department must operate its prisons based on real custodial and correctional considerations, including the characteristics and needs of each prisoner as well as the available prison facilities and programs and the protection of all prisoners,” Stroud wrote. “Thus, the trial court’s error of law in the application of North Carolina General Statute Section 130A-93 in conjunction with North Carolina General Statute Section 148-44 caused the trial court to issue the Writ of Mandamus in error.”

“This error infringed on the Department’s discretionary authority to determine the appropriate housing assignment by ordering the Department to assign an inmate to a particular facility or type of facility. Mandamus was not the proper remedy in this case,” Stroud explained.

Judge Valerie Zachary joined Stroud’s opinion. Both are Republicans.

Judge Tobias Hampson, a Democrat, supported the decision to reverse the trial judge’s ruling. Yet Hampson objected to the majority releasing Inscoe’s personal medical details.

“[T]he majority elects to expose Petitioner’s identity, medical records, and other materials in order to relitigate Petitioner’s sex and gender identity,” Hampson wrote in a concurring opinion. “Not only is this unnecessary, it is misguided.”

“[T]he majority takes direct aim at Petitioner’s gender identity,” Hampson added.

“The broad question presented by this case is whether a trial court may compel, by writ of mandamus, the Department to transfer Petitioner from one prison facility to another, following an administrative review by the Department and its decision not to transfer Petitioner,” the concurring opinion continued. “Drilling down, we must determine whether the assignment of an inmate to a particular facility is a discretionary decision. Those questions are unchanged by the sex or gender of the inmate involved.”

“In sum, I believe the majority far exceeds the task before us,” Hampson wrote. “It is enough to say that after conducting an in-depth investigation and review, the Department made a discretionary determination on the facts before it not to transfer Petitioner — an intersex person — to a women’s prison. The grant of discretion to the Department under Section 148-36 is broad, requiring only that the Department make a decision based on ‘custodial and correctional considerations.’”

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