Transgender inmate's request poses quandary for Cass County, ND, officials

William Anthony Fly, a 49-year-old who now goes by "Toni," told county commissioners in a Dec. 29 letter that she's being housed with male inmates contrary to her desire. She also claimed she was not getting the hormone treatments, feminine hygiene products and female undergarments as required.

"There is a pattern of diverting from all of the recognized standards, to include the federal Constitution of the United States of America," she wrote.

Capt. Andrew Frobig, the jail administrator, said he has housed inmates with the gender they identify with before, but doesn't believe it advisable to do so for Fly. "He willfully has sex as a male with females," Frobig said, referring to Fly. "Considering he's got crimes related to that, I have to take that into account with a female population."

Fly is awaiting sentencing after pleading guilty to transporting a female victim across state lines for criminal sexual acts. Fly is accused of fathering a child with the victim, and prosecutors say they have DNA evidence to prove it, according to court records.

Frobig said he expects many more requests like Fly's and those of other transgender inmates as societal expectations change. "I've told this to our staff in training. This is going to be the No. 1 — how do I phrase this — this is going to be the most difficult issue that we face managing the facility for the foreseeable future because it's happening more and more often."

Intersex inmate

In her letter, Fly called herself both "transgender" and "intersex," specifying that she is a "hermaphrodite."

What she appears to mean, based on the letter, is that she has anatomy that has male and female characteristics, but now identifies as female though she may appear male. It's not possible to ask her for clarification because her request for an interview, which she expressed in a separate letter, was blocked by her attorneys. Neil Fulton, who oversees federal public defenders in North Dakota, said it's a standard policy to prevent defendants from saying things unfavorable to their case while they await sentencing.

An intersex person, according to the Intersex Campaign for Equality, is someone with sexual characteristics that are not typically male or female, which could mean their chromosomes are a mix of both or that their anatomy is a mix of both. Those in the latter category have frequently been surgically altered to conform to one sex or the other as infants, sometimes leading to a lifetime of trauma. Fly referred to a "childhood sexual mutilation surgery" in her letter.

But intersex as a category is distinct from transgender, according to intersex advocates at InterAct. Where intersex is a physical condition, being transgender, in which a person who appears to be one sex but feels he or she belongs to another, is an identity.

Frobig said the jail doesn't decide whether an inmate's claim to being intersex or transgender is valid. "We take it at face value."

A federal law called the Prison Rape Elimination Act, or PREA, which Fly invoked, requires jails to give "serious consideration" to how transgender and intersex inmates view their own safety with the general inmate population because they are considered to be especially vulnerable.

But, as Frobig noted, jails may decide how to house transgender and intersex inmates on a "case-by-case basis," giving consideration to the inmates' safety and whether housing them with the gender they requested "would present management or security problems."

Though Fly is 6 feet 2 inches tall and weighs 230 pounds, Frobig said he's not concerned about violence from the inmate, only that Fly seems willing to have sex with women.

Initially, to accommodate Fly's request not to be housed with male inmates but also to avoid housing her with female inmates, the jail placed her in a segregation unit where she wouldn't mix with any other inmate. She complained that the segregation unit was for males.

Frobig said eventually Fly said she felt safe with the general male inmate population, and the jail moved her to a cell that she initially had to herself. He said the males complained that she repeatedly sexually harassed them — which could mean any unwanted attention of a sexual nature, such as a whistle — and she was moved back into a segregation unit.

Criminal sexual acts

According to court documents, it was in Minot and Rugby, N.D., between 2014 and 2016 that suspicions arose that Fly was sexually assaulting the victim, who told a social worker it had been happening since she was elementary-school age. The victim said they conceived the child during an out-of-state business trip.

Prosecutors said in court documents that a forensic expert has concluded that DNA tests show 99 percent certainty the victim's child, born last year, was fathered by Fly.

Fulton, the public defender, said, in contesting the need for DNA evidence, that Fly wouldn't challenge the accusation that she committed criminal sexual acts with the victim. However, Fulton said Fly would challenge that she transported the victim across state lines.

37 grievances

Much about Fly's complaints remain confidential, including some of Frobig's responses to them because they refer to Fly's medical conditions.

Besides complaints related to her intersex status, she also listed several others in letters to the commission and to The Forum of Fargo-Moorhead, including lack of treatment for several medical conditions. Most of the complaints have gone to jail administration.

Frobig said Fly has filed 37 grievances since she arrived here in September from a Bismarck jail. Frustrated with not getting the answers she hoped for, she said she has sent complaints to others including the County Commission, the North Dakota Board of Nursing and the Transgender Law Center in Oakland, Calif.

Maj. Steve Hall, who runs the Burleigh County Detention Center, said Fly did request to be housed with female inmates there as well, but was denied.

Cass County Administrator Robert Wilson said he, the state's attorney and County Commissioner Chad Peterson are reviewing Fly's complaint and will report what they find to the commission.

But the commission doesn't have control of the jail's operations, only its budgets, according to Frobig. The sheriff, an elected official like the commissioners, is the ultimate local authority on how the jail is run.

If an inmate doesn't like how a grievance is handled by jail administration, Frobig said, she can appeal to the sheriff and, after that, the court system. Some of Fly's grievances have been denied by Sheriff Paul Laney, which means they can go to court, Frobig said, but Fly hasn't taken that step yet.

Frobig said Fly, as a federal prisoner who happens to be housed at the Cass County Jail, could complain to the U.S. Marshals Service and federal courts but hasn't done so. Fly said in her letter to the commission that she feels courts are biased against intersex and transgender persons.

"This is the very first case where I've had someone dispute whatever our decision was," Frobig said. "I can tell you we've got prior cases that have gone both ways as far as whether they were or were not allowed to house with their stated gender identity. We're doing it case by case, and in this case it just turned out it's not in favor of what his preference is."