At the West Valley Detention Center in San Bernardino County, gay, bisexual, and transgender (GBT) people are punished twice: first, for the crimes they allegedly committed and again, simply for being GBT. Unlike non-GBT inmates who are housed in dorms or are out of their cells most non-sleeping hours, GBT prisoners languish in an anachronistically dubbed "Alternative Lifestyle Tank."
Here, they are kept in their cells for an average of 22 hours each day and are given no access to the center's programs and facilities provided to non-GBT prisoners. They are prohibited from attending congressional prayer, and denied access to GED classes, rehabilitation programs and work opportunities -- all because of their sexual orientation or gender identity.

The denials of education, work and rehabilitation are particularly galling, as participation in these programs can not only reduce the time they serve, but can also facilitate their integration back into society, reducing recidivism rates and the strain on our already overburdened criminal justice system.

Although in most instances WVDC staff have claimed that this harsh treatment is for their “protection,” protective custody and equal protection are not mutually exclusive. Jails and prisons cannot justify discriminatory treatment of LGBT prisoners under the guise of keeping them "safe."

While there can be no doubt that LGBT prisoners are often vulnerable to harassment and assaults by other prisoners and many need protection, it is both possible and imperative that our correctional facilities ensure the safety of their charges while providing equal access to programs, privileges and facilities, as required by the Prison Rape Elimination Act and our constitutional guarantee of equal protection.

Jails are simply not Constitution-free zones.

As Lawrence v. Texas, Romer v. Evans and the movement for the freedom to marry show, state sanctioned discrimination against LGBT persons cannot stand. However, while we are no doubt making great strides towards complete legal equality, too many LGBT persons are still subjected to discrimination and harassment in the criminal justice system simply because of who they are.

That is why today we filed a class action lawsuit against San Bernardino County over its discriminatory policies at the West Valley Detention Center that deny GBT inmates equal access to work, recreation and rehabilitative programs solely based on their sexual orientation or gender identity.

It is true that “​you can judge a society by how well it treats its prisoners.” We are being judged, and we cannot turn a blind eye.

Brendan Hamme is staff attorney at the ACLU of Southern California. Follow ACLU SoCal on Twitter.