In Benzel v. Grammer (1989), a U.S. Court of Appeals upheld a prison regulation that explicitly discriminated against communication with men. Under Nebraska State Penitentiary’s telephone regulations, prisoners held in disciplinary segregation could make any number of telephone calls to legal or religious professionals. In addition, prisoners could submit a list of three persons to be approved for telephone contact. The list could include family members and at most one female nonfamily member. Prisoners were allowed to make no more than two phone calls per week to approved persons from that list. Prisoners were thus allowed to make up to two calls per week to a female nonfamily member, but prisoners were not allowed to make any calls to a male nonfamily member. The court cited the Nebraska State Penitentiary Warden’s explanation for this sex discrimination:
in looking at the kinds of contacts that we felt it would be most significant, allowing that there also was the privilege of visiting, mail to continue, we felt that some family contact certainly was significant, and that primarily the other significant kinds of contacts with men within the institution [sic] were with significant females in the community, in terms of mother or children or wife or girlfriend or fiance or common-law wife or something of that sort. And we thought that would be the most significant kind of contact, rather than another male contact.
This description blurs the distinction between telephone contact with “family members” and with “non-family members.” Of the enumerated relational categories, “girlfriend” is the category least likely to be generally recognized as specifying a family member. For a homosexual male inmate, “boyfriend” is a category similar to “girlfriend” for a heterosexual male inmate. The reason for allowing a male inmate to telephone a girlfriend, but not a boyfriend, seems to be categorical sex discrimination. Nonetheless, that categorical sex discrimination troubled little the Court of Appeals in its brief opinion. That opinion uncritically deferred to prison officials’ descriptions and asserted “the inherent reasonableness of the challenged restriction.”
Men are subject to more criminal suspicion than women are. Prison officials screen persons whom prisoners can call. Prison officials also record and review prisoners’ telephone conversations. Discriminating telephone contacts by sex is an additional regulatory control. The added value of that additional sex-based control is far from clear to reason. As a sex, men are vastly disproportionately represented among prisoners. Presuming greater criminal suspicion of men contributes to highly unequal punishment by sex.