Suit Over Gender Confusion Settled

Already buffeted by controversies over its release of some inmates too early while keeping others too long, the Sheriff’s Department has resolved another potentially embarrassing problem: a lawsuit by a woman who contends that she was jailed as a man.

In her lawsuit filed in federal court, Candice Sue Penn charged that she was forcibly incarcerated at the Men’s Central Jail in March 1995--even though “it was clear and apparent” that she was a woman.

County documents concluded that Penn was medically examined and found to have “abnormalities” in her genital area, but she was “otherwise a normal female.”

On Monday, the county Claims Board settled the case, with Penn receiving $30,000 for emotional distress. Noting that Penn could have been awarded legal fees and other costs at trial, Assistant County Counsel Robert Ambrose concluded that the suit should be settled out of court.

“We believe the evidence at trial would show that Candice Sue Penn was unnecessarily transferred to the Men’s Central Jail,” Ambrose wrote in county Claims Board documents. “A jury is likely to find that there was no reasonable basis for the transfer.”

After her arrest in March 1995, Penn was first taken to the Sybil Brand Institute, the county women’s jail, and then to the men’s jail. There, she was “forced to remove all of her clothing in front of numerous sheriff’s deputies and inmates.”

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While at the men’s jail, Penn was “ridiculed, threatened, embarrassed, humiliated” by sheriff’s deputies, and “attacked, threatened and subjected to abuse” by inmates, the suit alleged.

Lawyers for the county declined to comment in detail. “We respect her right to privacy,” said Calvin House, a private lawyer retained by the county. “I don’t want to characterize what happened.”

A sheriff’s spokeswomen said “it would be inappropriate for the department to discuss the disposition of the case” because officials have not seen a copy of the settlement.

Penn was unavailable for comment. “It is a very upsetting case for her,” said Penn’s lawyer, Patrick Smith. “She is a woman who was sent to the men’s jail.”

Penn was arrested on charges of fighting with an ex-roommate and being armed with a weapon.

She was first sent to Sybil Brand, where some female inmates complained that she was a man, documents indicate. Penn was medically examined, prompting officials to transfer her to the Men’s Central Jail, where she was examined again by medical personnel and found to have an abnormality but was otherwise a normal female.

Penn was sent back to Sybil Brand the next day.

Smith said the case underscored the department’s shortcomings in dealing with inmates whose sexual orientations are not easily determined, even through medical examinations. Sheriff’s officials had argued that the system worked fine.

Penn is not a transsexual, and has never taken hormones or steroids that could make her look like a man, as has been the case with other jail inmates, Smith said. Nevertheless, she has a birth defect that has led at least one doctor working for the county to recommend sending her to a special ward in the men’s section of the jail system.

“The whole thing was an unfortunate incident,” Smith said. “They acted too hastily in this situation.”