A North Carolina mom is suing the United States Transportation Security Administration (TSA), alleging that the organization told her that her transgender child Jamii would have to be strip-searched, including a genital inspection, after a security screening.
The lawsuit, which was filed in August 2021, alleges that Kimberly and Jamii Erway attempted to travel through the Raleigh-Durham International Airport in May 2019. An earlier version of the lawsuit, filed in April 2020, was dismissed in November.
When Jamii, 15 at the time, entered a TSA body scanner, a "false positive" alert was issued, according to the lawsuit, because the scanner had "detected an anomaly" on her groin. The lawsuit uses she/her pronouns to refer to Jamii.
On their website, the TSA warns that the "advanced imaging technology" used in body scanners "eliminates passenger-specific images and instead auto-detects potential threats by indicating their location on a generic outline of a person." That generic outline, which the TSA said is "identical for all passengers," is gendered, and on their website, the TSA clarified that the officer administering the scan will press a button "designating a gender based on how" a passenger presents themselves. Since Jamii was identified as a woman, that body image was used, according to the lawsuit.
"The body scanner indicated an anomaly was present on Jamii's groin area ... Jamii, like all transgendered individuals, is more likely to encounter false positives (while screening) because although she appears female, she posesses external genitalia and thus will trigger a false-positive unless the screener presses male," said the lawsuit.
According to the lawsuit, false-positives can also be generated by sweat, different types of clothing, or movement during the scan. The lawsuit also highlights that Jamii could "avoid these troubles" by advising the scanner of which button to press, but noted that "body scanner operators are often unwilling to take instructions from passengers" and said that it could lead to further complications, like the body scanner flagging a bra clasp. According to the lawsuit, Jamii "advised" the body scanner operator that she was transgendered, but the operator allegedly summoned a supervisor instead of re-scanning the teen.
According to the TSA website, if an individual alarms the screening equipment, they are subject to a pat-down conducted by an officer of the same gender as the traveler presents as, and can be conducted in a private screening area "with a witness or companion of the traveler's choosing." The website specifies that travelers "will not be asked to remove or lift any article of clothing to reveal sensitive body areas."
The lawsuit alleges that Jamii was not given these options.
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"(The supervisor, identified in the suit as Jane Doe) advised Jamii that she would need to accompany her to a private room, expose herself, and allow (the supervisor) to 'feel up in there,' i.e., touch her genitals," the lawsuit alleges.
The lawsuit continued that Jamii "verbally protested" the search and was told that she could not leave the checkpoint until she complied. When her mother asked what was going on, the lawsuit alleges she was told to "mind her business" by the supervisor. When Erway made it clear she was Jamii's mother, she was allegedly "directed to force Jamii to submit to the strip-search."
The supervisor then summoned a police officer and TSA management. The police officer allegedly "advised that he would not be assisting in the detention of Jamii," and the mother-daughter duo left the airport and rented a car to drive 600 miles to their destination.
Jonathan Corbett, one of the lawyers representing Erway, said that the alleged events are in violation of TSA policy. Kimberly and Jamii Erway were not available to comment on the lawsuit.
A strip search is a universally humiliating experience, the offensive nature of which is immediately apparent to any human.
"TSA policy at the time of the incident did not allow a screener to demand anyone — let alone a child — expose their genitals as part of a search," Corbett said in an emailed statement. "This failure of training and supervision is all too common with the TSA, and we look forward to holding them accountable."
The lawsuit said that throughout the encounter, Jamii experienced "severe emotional distress, including symptoms of panic, anxiety, fear, racing heart, shortness of breath, uncontrollable shaking and nausea," and continues to experience these symptoms when she recalls the incident. The lawsuit also alleges that Jamii, previously a frequent flyer, has "been unable to fly" since the encounter and alleges the TSA supervisor "intentionally or recklessly caused the severe emotional distress experienced by Jamii."
"A strip search is a universally humiliating experience, the offensive nature of which is immediately apparent to any human," said the lawsuit. "The mere threat of forcing one to submit to a strip search and manual manipulation of one’s genitals, as DOE made to Jamii, when one wears the uniform of the United States of America and invokes that authority, and especially when the victim is a child, is sufficient to cause severe emotional distress in ordinary people."
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The TSA declined to comment on the lawsuit, citing a policy of not commenting on pending litigation.
Through the lawsuit, Erway is asking for actual damages for "loss of liberty, unconstitutional search, and any emotional damages," as well as punitive damages. Both of those amounts would be determined by a jury. The lawsuit also asks for an "injunction ... to prevent the reoccurrence of the injuries described herein."
"TSA has enacted policies that, if followed, would have prevented the injury incurred ... Plaintiffs do not challenge these policies and do not seek to modify them in anyway," said the lawsuit. "Instead, Plaintiffs seek an order compelling TSA to enforce these policies, e.g., via additional training, improved employment screening, better monitoring, etc."
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