Hastings Constitutional Law Quarterly


The perpetuation of a binary society with regards to sex creates problems for intersex persons who do not easily categorize as male or female. The current housing and treatment of intersex prisoners are based partly on this classic male-female dichotomy. This Note sheds light on sex as a spectrum, and examines the potential constitutional violations that arise from the current prison housing arrangements and treatment. It also analyzes the experiences of intersex prisoner Miki Ann DiMarco and her constitutional challenges as brought forward in DiMarco v. Wyoming Department of Corrections. Additionally, this Note suggests that intersex discrimination is a form of sex discrimination. Thus, a classification differentiating intersex persons from non-intersex persons is one that merits heightened scrutiny in order to determine whether there is a violation of the Equal Protection Clause. Lastly, this Note examines some guidelines in the treatment and housing of intersex prisoners seeking to avoid Eighth and Fourteenth Amendment violations.