By Grace Headrick

            Dee Farmer, a pro se litigant, is recognized as the first transgender person heard by the Supreme Court.[1] Dee, who never graduated high school, wrote her original complaint by hand from a prison cell and filed it with the U.S. District Court for the Western District of Wisconsin .^[2] Dee spent most of her time in the sparsely populated prison library to avoid taunting, harassment, and violence from other prisoners. There, she taught herself the law to advocate for her rights. When she was beaten and raped by another prisoner two weeks after being transferred to a high-security prison, she filed a civil lawsuit that took her all the way to the Supreme Court in 1994.

            As discussed below, Dee’s experience demonstrates that the landscape of the carceral system and the legal system remains largely unchanged. This injustice leaves victims of sexual violence in prison the same singular avenue for justice three decades later—proving that their case meets the stringent deliberate indifference standard.

            Dee’s case forced the U.S. to acknowledge its willful blindness of prison rape, yet the “brutality” that is the “equivalent of torture”^[3] continues to be a reality of confinement. The Prison Rape Elimination Act (PREA) largely inspired by Farmer—as passed unanimously by Congress in 2003 and signed into law by President George W. Bush in 2003.^[4] The PREA created the National Prison Rape Elimination Commission, which was tasked with “identifying ways to curb the incidence of sexual assaults in prison.”^[5] The Commission ultimately submitted standards to the DOJ for review, and the final standards were published in the Federal Register in 2012.^[6]

            So far as incentivizing prison reform goes, it lacks teeth.^[7] Though the PREA established new standards for compliance, improved data collection, and increased general awareness, noncompliance is penalized by a mere loss of 5% of grant funds.^[8]Most notably, the PREA doesn’t provide a private right of action that victims could use to sue.^[9] Absent sufficient government intervention, prisoners continue to face sexual violence as though it were a condition of their imprisonment.^[10] The most recent statistics available from the Bureau of Justice Statistics reported 36,264 allegations of sexual victimization in 2020.^[11]

            Farmer v. Brennan is now the binding precedent for “failure to protect” claims under the Eighth Amendment.^[12] It is one of the most cited cases in U.S. history.^[13] The Eighth Amendment prohibits “cruel and unusual punishment.”^[14] In Farmer, the Court created a two-part test:  that a plaintiff can establish a “failure to protect” claim in violation of the Eighth Amendment by showing that (1) they are “incarcerated under conditions posing a substantial risk of serious harm” and (2) that prison officials are deliberately indifferent “to inmate health or safety.”^[15]

            This ruling may seem like a victory for prisoners’ rights, but plaintiffs routinely fail to meet the high standard of “deliberate indifference” set by the court in Farmer. This was Dee’s fate. She lost her case on remand.^[16] The first prong of the Farmer test does not typically prove to be a legal obstacle for victims of sexual violence, but the second prong is a different story. What exactly is deliberate indifference? The term “deliberate indifference” originated from a 1976 case, Estelle v. Gamble,[17] in which the Supreme Court defined this standard to mean “a state of mind more blameworthy than negligence.”^[18]

            Dee argued for a lesser objective standard similar to civil law’s negligence standard. The Court expressly rejected Dee’s argument and instead adopted the subjective standard of criminal recklessness to prove deliberate indifference.^[19] Under this standard, a prison official will only be held liable if they subjectively knew of the risk of harm and, despite their knowledge of the risk, failed to take reasonable action to prevent it. Put another way, the victim must show that the prison official knew there was a risk of harm and failed to respond reasonably. Under this standard, the claim lives or dies by the proof of what was in the officials’ mind–not the abuse itself, regardless of how extreme.^[20] There is no specific data on these cases, but a 2020 analysis of 1,500 failure to protect cases found that less than 1% were successful.^[21] Plaintiffs often fail to surpass opposing counsel’s motion for summary judgment.^[22]

            For a prisoner, the legal obstacles they must face to seek justice are nearly insurmountable. Even if the standard were lessened to the civil negligence standard, prisoners still face the Prison Litigation Reform Act, which created a slew of significant roadblocks to bringing suit.^[23] The greatest roadblock, however, is fear. Victims often face psychological and social difficulties in the process and decision to confront their abuser. An incarcerated victim faces these same fears from behind bars. Prisons are plagued with hyper-masculinity, vastly unequal power dynamics, and stigmatized beliefs of sexual orientation and gender identity.[24] The mental and physical risk to safety posed by bringing lawsuit is an extreme deterrent. The standard should be reformed, and a higher threat of liability could incentivize change in prisons. But not in the service of prison reform. That is the government’s responsibility. It should be reformed for the same reasons that any standard should be reformed—in the service of equitable justice.

            “[M]any inmates,” Justice Blackburn wrote in Farmer, “discover that their punishment degenerates into a reign of terror unmitigated by the protection supposedly afforded by prison officials.”^[25] The United States retains toothless federal regulations, narrow avenues of legal relief, and a society that more commonly recognizes prison rape as a punchline rather than a problem. The government frequently fails to meet its responsibility to protect incarcerated citizens­­.[26] Instead, the United States government chooses to primarily place the burden of rectifying the country’s morality squarely on the backs of incarcerated victims of sexual violence. The government’s deliberate indifference—if put to the test—should not survive.

[1] Beth Schwartzapfel, The First Trans Prisoner Who Took Her Case All the Way to the Supreme Court, Marshall Project (July 17, 2025), https://www.themarshallproject.org/2025/07/17/farmer-brennan-transgender-prisoner-supreme-court.

^[2] Id.; Hank Minor & Grayson Metzger, Case: Farmer v. Brennan, Civ. Rts. Litig. Clearinghouse (Mar. 27, 2024), https://clearinghouse.net/case/17516/.

^[3] Farmer v. Brennan, 511 U.S. 825, 833 (1994).

^[4] 34 U.S.C. § 303.

^[5] Reggie B. Walton, Opinion: Sexual Assault Should Never be Part of a Prison Term, CNN, https://www.cnn.com/2023/09/17/opinions/prison-rape-20-years-prea-reforms-judge-walton (last updated Sept. 17, 2023).

^[6] Prison Rape Elimination Act, Nat’l PREA Res. Ctr., https://www.prearesourcecenter.org/about/prison-rape-elimination-act (last visited Oct. 17, 2025).

^[7] Elizabeth A. Reid, The Prison Rape Elimination Act (PREA) and the Importance of Litigation in Its Enforcement: Holding Guards Who Rape Accountable, 122 Yale L. J. 2082 (2013).

^[8] Prison Rape Elimination Act (PREA), BJA, https://bja.ojp.gov/program/prea/overview (last visited Sept. 17, 2025); Subsequent amendments the PREA in 2016 and 2018 have followed suit. Justice For All Reauthorization Act of 2016, Pub. L. No. 114–324, 130 Stat. 1948 (2016); United States Parole Commission Extension Act of 2018, Pub. L. No. 115–274, 132 Stat. 4160 (2018).

^[9] Jael Humphrey, The Prison Litigation Reform Act (PLRA): Shielding Prisons from Accountability for Sexual Abuse, Lambda L.: Blog (Jun. 13, 2015), https://legacy.lambdalegal.org/blog/20150613_humphrey-plra.

^[10] See Walton, supra note 4.

^[11] Emily D. Buehler & Shelby Kottke-Weaver, Bureau of Just. Stat., Sexual Victimization Reported by Adult Correctional Authorities, 2019–2020 – Statistical Tables 1 (2024).

^[12] Dee Deidre Farmer & D. Dangaran, Farmer at 31: Historicizing Trans Rights in Prison through Intergenerational Doctrine, 48 N.Y.U. Rev.  L. & Soc. Change 321, 326 (2025).

^[13] Lauren Mattiuzzo, Most-Cited U.S. Supreme Court Cases in HeinOnline: Part III, HeinOnline: Blog (Sept. 26, 2018), https://home.heinonline.org/blog/2018/09/most-cited-u-s-supreme-court-cases-in-heinonline-part-iii/.

^[14] U.S. Const. amend. VIII.

^[15] Farmer v. Brennan, 511 U.S. 825, 834 (1994).

^[16] Farmer & Dangaran, supra note 13, at 338.

[17] Estelle v. Gamble, 429 U.S. 97, 102 (1976).

^[18] Farmer, 511 U.S. at 835. 

^[19] Farmer & Dangaran, supra note 13, at 326.

^[20] Hannah Beckler et al., The Gutting of the Eighth Amendment, Bus. Insider (Dec. 19, 2024), https://www.businessinsider.com/eighth-amendment-prohibit-protect-prisoners-cruel-and-unusual-punishment-gutted-2024-12.

^[21] Id.

^[22] See Ciara N. Cannoy et al., Legal Digest, Standard for Deliberate Indifference to Inmate Safety and Medical Needs, 52 J. Am. Acad. Psych. & L. 128, 1–3 (2024).  

^[23] See Humphrey, supra note 9.

[24]See Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, 48 Am. Crim. L. Rev. 121, 127–28, 134–35, 139 (2011); See also Alysia Santo et al., In New York Prisons, Guards Who Brutalize Prisoners Rarely Get Fired, Marshall Project (May 19, 2023), https://www.themarshallproject.org/2023/05/19/new-york-prison-corrections-officer-abuse-prisoners.

^[25] Farmer v. Brennan, 511 U.S. 825, 853 (1994).

[26] See Bureau of Prisons: Strategic Approach Needed to Prevent and Address Employee Misconduct, GAO (Sept. 29, 2025), https://www.gao.gov/products/gao-25-107339; See also Justice Department Finds Unconstitutional Conditions in Georgia Prisons, U.S. Att’y’s Off. S. Dist. Geor., https://www.justice.gov/usao-sdga/pr/justice-department-finds-unconstitutional-conditions-georgia-prisons (Oct. 24, 2024); See also Michael Balsamo & Michael R. Sisak, AP Investigation: Women’s Prison Fostered Culture of Abuse, AP (Feb. 6, 2022), https://apnews.com/article/prisons-california-united-states-sexual-abuse-only-on-ap-d321ae51fe93dfd9d6e5754383a95801; Jonathan Allen, Mississippi’s Violent Prisons Violating Constitution, US Justice Department Finds (Feb. 29, 2024), https://www.reuters.com/world/us/mississippis-violent-prisons-violating-constitution-us-justice-department-finds-2024-02-28/.