Sex-biased job restrictions on men prison staff illustrate public deliberation supporting sexual suspicion of men. In 1929, the International Penitentiary Commission adopted the following rule governing relations between prison officials and prisoners:

The supervision of female prisoners should be entrusted, as far as possible without exception, to female officers.

No male officer, whatever his rank, should be allowed to enter the female prisons or sections of prisons, except when he is called by his duties. In this case he should be always accompanied by a female officer, unless in the case of the Governor, the Medical Officer or the Chaplain.^

This rule was subsequently adopted by the League of Nations.^ In 1955, the United Nations adopted a similar rule, with additional provisions:

53. (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.

(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.

(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.^ ^

These rules, which remain in effect, don’t represent informed officials’ necessary response to specific circumstances of sexual abuse that could not be feasibly addressed in a way that did not treat men prison staff as generically suspect in relation to female prisoners. These rules blur the distinction between convicted offenders and men as a class. These rules categorize men as per se threats of sexual misconduct.

While the League of Nations and United Nations representatives who adopted these rules were mostly men, women-dominated bodies have also endorsed rules restricting employment of men prison staff. With respect to facilities for federally sentenced women inmates in Canada, the Third and Final Annual Report of the Cross-Gender Monitoring Program offered as Recommendation 1:

It is recommended that males should not be permitted to be front line Primary Workers. This would include not being permitted to act in a security function with respect to living and segregation units, cell extraction teams regardless of time of day, and escorts of any kind.^

This report lists as authors four females, along with the assistance of two females. The Canadian Association of Elizabeth Fry Societies, a strong advocate for this position, is also women-dominated. Both men and women leaders have endorsed employment restrictions on men based on sexual suspicion.

U.S. courts have upheld specific cases of employment restrictions on men prison staff. In Everson v. Michigan Dept. of Corrections (2004), the U.S. Court of Appeals, Sixth Circuit, decided that the Michigan Department of Corrections (MDOC) could restrict men prison staff’s employment opportunities within women prison housing units. MDOC justified these employment restrictions with specific reasons:

First, the presence of males in the housing units necessitates the use of “artificial barriers to security” such as covers for cell windows, doors on the toilet stalls, shower curtains, the moratorium on pat-down searches by male officers, and the “knock and announce” policy. Second, allegations of sexual abuse, whether true or not, create a “poisoned atmosphere” that breeds misconduct on the part of inmates and guards. Third, many male officers, afraid of false accusations of sexual abuse, become “gun-shy” and fail to monitor and discipline inmates in a proactive fashion.^

Employment of men in women’s prisons is currently standard practice nationwide in the U.S.^ However, the Court cited the previous decade’s factual record as indicating that MDOC had not successful addressed serious problems of staff sexual abuse and other mistreatment of women inmates.^ The court reasoned that, if men continued to be employed, action to stop sexual abuse and mistreatment of women prisoners could not succeed while maintaining a necessary level of prison security. However, MDOC’s reasons for its employment restrictions are generic. Both staff sexual victimization of men and women inmates, along with false accusations of such victimization are serious problems in U.S. prisons and jails generally. The Court stressed that its ruling applies narrowly to MDOC’s specific circumstances. That’s generic narrowing move for legal decisions. More significantly, the Court failed to recognize the history of employment discrimination against men in women’s prison and the prevailing culture of criminal suspicion of men.

Women have supervised incarcerated men from no later than the eighteenth century. In England in the eighteenth century, jail keeping was a commercial business. Widows occasionally become jail keepers when their jail-keeping husbands died.^ In the U.S., the first woman named to run a major municipal agency of New York City was appointed in 1914 to be Commissioner of Corrections for New York City.^ At that time, men probably outnumbered women in New York City jails by more than ten to one. Only about a decade later, the League of Nations forbid men prison staff from supervising women’s prisons, or even entering a women’s prison without a woman escort. Women supervising men prisoners has been much less restricted historically than men supervising women prisoners.

Women prison staff’s sexual misconduct is mitigated in public discourse in ways that men prison staff’s sexual misconduct isn’t. In Virginia prisons from 2002 to 2005, 80% of prison staff who perpetrated substantiated sexual misconduct toward inmates were women.^ A national survey of U.S. prisons in 2005 found that women staff perpetrated 62% of substantiated cases of sexual misconduct or sexual harassment of inmates. The percent of women perpetrators in a parallel survey of jails in 2005 was only 13%.^ A newspaper article reporting these findings included a quotation from an authority explaining why the share of women staff sexual misconduct is lower in jails than in prisons:

in jails, sexual relations between staff and inmates are “much more likely to involve a force or abuse of power . . . as opposed to something that is more characterized as romantic in nature in a prison.” ^

The article quoted a law professor and authority on prison administration. She rationalized the high share of women staff sexual misconduct:

“You will often find that the culture that allows this kind of stuff to happen is also a culture that is particularly inhospitable to female staff,” she said, noting that female staff might align themselves with inmates for protection.^

These explanations invoke folk stereotypes about sex differences and academic conventions for justifying women’s interests. Explanations of sexual misconduct and harassment as romantic, or, alternatively, as necessary instrumental action, are not explanations that would excuse men’s sexual misconduct.

The prominence of ideological explanations for the relatively high share of women staff sexual misconduct is particularly remarkable given a reasonable statistical explanation. Worldwide, the prisoner population is much more skewed toward men than is the prison staff population. That’s also true in the U.S. Like in most populations, most prison staff are heterosexual. Circumstances for women staff/men prisoner sexual misconduct are thus much more prevalent than circumstances for men staff/women prisoner sexual misconduct. Given equal propensities of men and women staff to commit sexual misconduct, a higher share of women staff sexual misconduct would be expected with such sex disparity among inmates.

Job restrictions on men prison staff reflect criminal sexual suspicion of men in public deliberation. The chaste woman and the predatory, brutish male are gender stereotypes deeply embedded in public deliberation.^ Elite men imagine themselves as champions for the chaste woman. Elite women imagine themselves as defenders against the predatory, brutish males. Ordinary men working as prison staff confront the reality that their employment opportunities are restricted because of their sex.

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.