Appeal from the United States District Courtfor the Eastern District of WashingtonRobert H. Whaley, District Judge, PresidingArgued and SubmittedMarch 11, 1999--Seattle, WashingtonFiled February 29, 2000Before: Betty B. Fletcher, Stephen Reinhardt, andSidney R. Thomas, Circuit Judges.Opinion by Judge Reinhardt
_____________________________COUNSEL Nancy J. Krier, Assistant Attorney General, Olympia, Wash-ington, for the defendants-appellants.Jeffry K. Finer, Finer and Pugsley, Spokane, Washington, forthe plaintiff-appellee.
_____________________________OPINION REINHARDT, Circuit Judge:Robert Mitchell, a Washington state prison guard, appealsthe district court's denial of his motion for summary judgmentin a case in which a male-to-female transsexual prisoner,Douglas ("Crystal") Schwenk, sought damages as a result ofMitchell's alleged attempt to rape her.1 Following the allegedassault, Schwenk sued various prison officials includingMitchell both under Section 1983, for a violation of herEighth Amendment rights, and under the Gender MotivatedViolence Act (GMVA).2 Mitchell's summary judgmentmotion was based on qualified immunity.With respect to Schwenk's Section 1983 claim, Mitchellargues that he is entitled to qualified immunity because theallegations amount only to sexual harassment and not to thesort of sexual attack proscribed by the Eighth Amendment.With respect to Schwenk's GMVA claim, Mitchell assertsthat he is entitled to qualified immunity because the constitu-tionality of the Act was not clearly established and its applica-bility under the circumstances of this particular assault wasfar from clear. For the reasons set forth below, we hold thatthe district court properly denied Mitchell's motion on theSection 1983 claim, but erred with respect to the GMVA.BACKGROUND3Douglas (Crystal) Schwenk asserts that she is a pre-operative male-to-female transsexual who plans someday toobtain sex reassignment surgery.4 Schwenk testified that sherealized that she was psychologically female by the age of 12,and that she used illegally-obtained female hormones prior toincarceration, although she never received any medical orpsychiatric treatment for gender dysphoria, the technical diag-nosis for transsexuality. According to Schwenk, she considersherself female and has been known as "Crystal Marie" sinceearly adolescence. She has shoulder-length hair, is extremelysoft-spoken and feminine, cries easily, and uses make-up andother female grooming products when possible.In June of 1993, Schwenk was incarcerated in the all-maleWashington State Penitentiary in Walla Walla. In Septemberof 1994, she was transferred to the prison's medium securityBaker Unit, where Robert Mitchell was employed as a guard.Mitchell recalls that shortly after Schwenk arrived at BakerUnit, other inmates told him that Schwenk was homosexual.Mitchell admits that soon after that, Schwenk told him thatshe intended to have a sex change operation after her releasefrom prison, and that she repeated this assertion to him "fromtime to time." Schwenk testified that she also told other prisonofficials that she was transsexual. According to Schwenk,Mitchell referred to her as Crystal, not Douglas.Schwenk alleges that shortly after she arrived in BakerUnit, Mitchell subjected her to an escalating series of unwel-come sexual advances and harassment that culminated in asexual assault. This harassment began with "winking, per-forming explicit actions imitating oral sex, making obsceneand threatening comments, watching Plaintiff in the showerwhile `grinding' his hand on his crotch area, and repeatedlydemanding that Plaintiff engage in sexual acts with him."Then, in late 1994, Mitchell asked Schwenk to have sex withhim in the staff bathroom, offering to bring her make-up and"girl stuff" in exchange for sex. When she refused andattempted to walk away, Mitchell grabbed her and groped herbuttocks. Schwenk pushed him away and ran back to her cellcrying. Later that day, Mitchell again approached Schwenkand told her that he had had oral sex with a former inmate andplanned to have sex with his neighbor's young son, who heclaimed to be "grooming" for the experience. Schwenk, whotestified that she was sexually abused as a child, became terri-fied of Mitchell and tried to avoid him as much as possibleafter that. She testified that: Once Mitchell told me that I -- I freaked. I just started trying to avoid Mitchell because I knew that -- I had a feeling that he might be dangerous . . . that he could be personally dangerous to me. I live in a unit where this man controls my every day essential life. That's why I was afraid to tell anybody, even the lieutenants or anybody that came into the unit because I didn't know if word was going to get back to Mitchell.Shortly thereafter, Schwenk says that Mitchell entered hercell, saw that they were alone, and demanded that Schwenkperform oral sex on him. Schwenk refused and told him to getout. Mitchell then turned and looked behind him to make sureno one was coming, unzipped his pants, pulled out his penis,and again demanded that Schwenk perform oral sex. Sheagain rebuffed him and again told him to leave. AlthoughMitchell said he would leave, he did not. Instead, accordingto Schwenk, Mitchell closed the door to her cell, grabbed her,turned her around forcibly, pushed her against the bars, andbegan grinding his exposed penis into her buttocks. Schwenktestified that she told him to "get off me Mitchell, leave mealone, get out of my house. And he -- he didn't listen to me."Schwenk alleges that Mitchell ignored her struggling and con-tinued to forcibly rub his penis against her, saying "oh baby,I knew you'd be good." The attack only stopped, according toSchwenk, when Mitchell, apparently fearing detection,abruptly pushed away from Schwenk, zipped up his pants,and left hastily.Later that week, Mitchell again demanded sex fromSchwenk, who again refused. Mitchell told her that if she didnot submit, he would "cross [her] out and send [her] inside toseg, give [her] a new address." Schwenk testified that sheinterpreted Mitchell's threat to cross her out to mean that hewould get her "infracted" and transferred out of the mediumsecurity Baker Unit into the main cell house, where she wouldbe at high risk for sexual attack by other inmates. On January11, 1995, this in fact happened. Schwenk's cell was stripped,and an illegal tattoo gun made out of a ball-point pen was dis-covered. As a result, she lost some accumulated good timecredit and was sent to segregation for 28 days. In addition, shewas moved to a multi-man cell in the maximum security Unit6 of the main institution, where she "live[d ] in a constant stateof fear and anxiety," wondering whether she would be rapedor otherwise assaulted.Schwenk subsequently filed an administrative grievanceregarding the attack by Mitchell. That grievance was deniedas untimely, however, because it was filed ten days after theattack and all such complaints must be made within five daysof the alleged incident. Approximately one year after theattack, Schwenk filed a pro se complaint in federal courtagainst Mitchell and various institutional defendants; in thatcomplaint, she alleged that the sexual assault violated herEighth Amendment rights. The district court appointed coun-sel for Schwenk, and an amended complaint adding a claimunder the Gender-Motivated Violence Act was filed. Afterdismissing the institutional defendants, the district court con-verted Mitchell's motion to dismiss into a motion for sum-mary judgment and allowed discovery to proceed.Schwenk claimed that she was traumatized by Mitchell'sassault and by his threats of retaliation. In support of thisassertion, Professor Klingbeil found that Schwenk did indeedsuffer psychological injury resulting from Officer Mitchell'sattack. Moreover, Klingbeil found Schwenk's description ofthe incident in her cell to be credible because it was consistentwith her previous testimony, her intense fear of Mitchell, andthe symptoms of post-traumatic stress that Schwenk dis-played. In particular, Klingbeil noted that Schwenk hadimproved since being transferred out of Walla Walla--andaway from Officer Mitchell--because she felt that she was"safe from retaliation and treated fairly by staff and inmates."Klingbeil found that Schwenk's reactions and symptomsclearly established "that the attack by Mitchell profoundlydisturbed Schwenk, left [her] feeling wholly vulnerable to[her] attacker, and experiencing great fear and dread."Following discovery, Mitchell renewed his request for sum-mary judgment based on what he presents on appeal as twoseparate grounds: first, the alleged failure to state a claimunder the GMVA; and second, qualified immunity withrespect to both the GMVA and Section 1983 Eighth Amend-ment claims. Mitchell raises three points regarding the firstground. First, Mitchell asserts that the acts of which he wasaccused do not satisfy the statutory definition of a crime ofviolence. Second, he asserts that Schwenk is male and that theGMVA does not protect men who are raped or sexuallyassaulted by other men. Third, Mitchell argues that in general,transsexuals are not covered by the act. In particular, Mitchellargues that Schwenk's allegations do not constitute a claimthat the attack was based on gender, as required by the statute,but rather on transsexuality. Therefore, Mitchell claims, therequisite gender motivation and animus are absent.All of these contentions may properly be considered as apart of Mitchell's qualified immunity claim, along with hisrelated assertion that he is entitled to such immunity because,at the time of the alleged assault, no court had yet applied theGMVA to a prison sexual assault on a transsexual by a guard.Mitchell also bases his immunity claim on the contention thatthe GMVA itself was not clearly established because the con-stitutionality of the act was in doubt at the time of the allegedattack. As to Schwenk's Eighth Amendment claim, Mitchellasserts that he is entitled to qualified immunity from Section1983 liability because Schwenk's allegations, even if true,describe only sexual harassment, not sexual assault. The dis-trict court rejected all of Mitchell's contentions, and this inter-locutory appeal followed. Because the legal issues aresimpler, we first discuss Mitchell's qualified immunity claimregarding Section 1983 and the alleged Eighth Amendmentviolation, before turning to the GMVA.ANALYSISI. Jurisdiction over the Interlocutory AppealAlthough the denial of a summary judgment motion is notordinarily an appealable order, this court has jurisdiction toconsider an interlocutory appeal where the ground for themotion in question is qualified immunity. See Behrens v.Pelletier,
516 U.S. 299, 312
(1996). Our jurisdiction in suchcases, however, is limited to questions of law; it does notextend to claims in which the determination of qualifiedimmunity depends upon disputed issues of material fact. SeeJohnson v. Jones,
515 U.S. 304, 319
(1995); Knox v. South-west Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997). Nonethe-less, this court is not precluded from reviewing such an orderon appeal merely because some of the facts are disputed;rather, for purposes of determining whether the alleged con-duct violates clearly established law of which a reasonableperson would have known, we assume the version of thematerial facts asserted by the non-moving party to be correct.See Behrens,
516 U.S. at 312
; Liston, 120 F.3d at 977. On thisappeal, then, we consider whether, resolving all factual dis-putes in Schwenk's favor, Mitchell is entitled to qualifiedimmunity from Schwenk's claims under Section 1983 and theGMVA. We conclude that he is not entitled to qualifiedimmunity with respect to Section 1983---the Eighth Amend-ment claim--but that, because the applicability of the GMVAto Mitchell's conduct was not clear at the time of the assault,he is entitled to such immunity with respect to the GMVA.II. Schwenk's Claims[1] Law enforcement officers, including prison guards,enjoy qualified immunity from civil damage suits unless theirconduct violates "clearly established statutory or constitu-tional rights of which a reasonable person would haveknown." Harlow v. Fitzgerald,
457 U.S. 800, 818
(1982).Under this standard, summary judgment based on qualifiedimmunity is improper if, under the plaintiff's version of thefacts, and in light of the clearly established law, a reasonableofficer could not have believed his conduct was lawful. SeeGrossman v. City of Portland, 33 F.3d 1200, 1208 (9th Cir.1994).5 Thus, "[a]n official's claim of qualified immunity willbe defeated if, `in the light of pre-existing law' the unlawful-ness of his conduct was `apparent.' " Id.[2] Once a defendant claims that he is entitled to qualifiedimmunity, the court is to determine "not only the currentlyapplicable law, but whether that law was clearly establishedat the time an action occurred." Harlow,
457 U.S. at 818
. InSiegert v. Gilley,
500 U.S. 226, 231
(1991), the SupremeCourt set forth the "proper analytical framework " for makingthat determination. In that case, the Court held that a neces-sary precursor to determining whether the right in questionwas "clearly established" at the time is the "threshold" inquirywhether the plaintiff has in fact asserted a violation of thatright. Id. at 231-32. Only after the court concludes that theplaintiff has sufficiently stated a claim for the violation of hisrights is the court to determine whether "the contours of theallegedly violated right were sufficiently clear that a reason-able official would understand that what he [was ] doing vio-late[d] that right." Liston, 120 F.3d at 975 (citing Osolinski v.Kane, 92 F.3d 934, 936 (9th Cir. 1996)). Deciding "thispurely legal question permits courts expeditiously to weed outsuits which fail the test without requiring a defendant whorightly claims qualified immunity to engage in expensive andtime consuming preparation to defend the suit on the merits."Siegert,
500 U.S. at 232
; see also Knox, 124 F.3d at 1107 ("Ifa plaintiff fails to allege a violation of clearly established law,the court need not even reach the other issues presentedregarding qualified immunity.").Therefore, we must affirm the district court's denial ofsummary judgment if: (1) Schwenk has alleged an actual vio-lation of her rights; and (2) "the contours of the allegedly vio-lated right were sufficiently clear that a reasonable officialwould understand that what he [was] doing violate[d] thatright." Liston, 120 F.3d at 975 (citing Osolinski, 92 F.3d at936).A. Schwenk's Eighth Amendment Claim[3] The Eighth Amendment proscribes the infliction ofcruel and unusual punishment on prisoners. Whether a partic-ular event or condition in fact constitutes "cruel and unusualpunishment" is gauged against "the evolving standards ofdecency that mark the progress of a maturing society."Hudson v. McMillan,
503 U.S. 1, 8
(1992) (quoting Rhodesv. Chapman,
452 U.S. 337
, 346, (1981)). However, theSupreme Court has clearly and repeatedly held that "whenprison officials maliciously and sadistically use force to causeharm contemporary standards of decency are alway sviolated." Id. at 9 (emphasis added). In such cases, no lastingphysical injury is necessary to state a cause of action. Rather,the only requirement is that the officer's actions be "offensiveto human dignity."6 Felix v. McCarthy, 939 F.2d 699, 702(9th Cir. 1991).[4] A sexual assault on an inmate by a guard--regardlessof the gender of the guard or of the prisoner--is deeply"offensive to human dignity." Id."Being violently assaultedin prison is simply not `part of the penalty that criminaloffenders pay for their offenses against society.' " Farmer v.Brennan,
511 U.S. 825, 834
(1994). As a result, in Farmer,the Supreme Court held that prison officials may be held lia-ble under the Eighth Amendment for the rape of a transsexualinmate by another inmate if the officials knew that the victimfaced a substantial risk of serious harm and they disregardedthat risk by failing to take reasonable measures to abate it. Id.at 847. Thus, the shield that qualified immunity provides islimited to those officials who are either unaware of the riskor who take reasonable measures to counter it.[5] Where guards themselves are responsible for the rapeand sexual abuse of inmates, qualified immunity offers noshield. See Mathie v. Fries, 935 F. Supp. 1284, 1301 (E.D.N.Y. 1996) (denying qualified immunity to director of prisonsecurity because "any reasonable prison Director of Securityknew that to try to force unwanted and prohibited sexual actson a powerless inmate is objectively unreasonable and in vio-lation of the inmates rights");7 Women Prisoners of the Dist.of Columbia Dept. of Corrections, 877 F. Supp. 634, 665(D.D.C. 1994) ("Rape, coerced sodomy, unsolicited touchingof women prisoners' vaginas, breasts and buttocks by prisonemployees are `simply not part of the penalty that criminaloffenders pay for their offenses against society' ") (quotingFarmer,
511 U.S. at 834
), aff'd in part and vacated in part,93 F.3d 910 (D.C. Cir. 1996). In the simplest and most abso-lute of terms, the Eighth Amendment right of prisoners to befree from sexual abuse was unquestionably clearly establishedprior to the time of this alleged assault, and no reasonableprison guard could possibly have believed otherwise.[6] Moreover, no case is necessary to establish the truth ofthe underlying proposition. The purpose of qualified immu-nity is to "ensure that defendants `reasonably can anticipatewhen their conduct may give rise to liability' by attaching lia-bility only if `[t]he contours of the right[violated are] suffi-ciently clear that a reasonable official would understand thatwhat he is doing violates that right.' " United States v. Lanier,
520 U.S. 259, 270
(1997) (quoting Anderson v. Creighton,
483 U.S. 635, 640
(1987)). Ordinarily, courts look to priordecisional law in order to determine whether the "contours ofthe right" have been defined at an appropriate level of speci-ficity. This does not mean, however, that the "very action inquestion [must have] previously been held unlawful."Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994); seealso Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir. 1990)("[T]he law simply does not require that we find a prior casewith the exact factual situation in order to hold that the offi-cial breached a clearly established duty."). Instead, qualifiedimmunity is inappropriate where the preexisting law was suf-ficient to provide the defendant with "fair warning" that hisconduct was unlawful. Lanier,
520 U.S. at 270
-71.[7] Where the law has provided the defendant with suchfair warning, "closely analogous pre-existing case law is notrequired to show that the law is clearly established."Mendoza, 27 F.3d at 1361. To the extent that Mitchell arguesthat the law is clearly established that a prison guard may beliable for allowing someone else to sexually assault an inmate,but not for an assault that he himself commits, his position,both legally and as a matter of common sense, is absurd. Inlight of pre-existing Eighth Amendment law, a reasonableprison guard simply could not have believed that he couldwith impunity enter the cell of a prisoner (transsexual or oth-erwise), unzip his pants, expose himself, demand oral sex, andthen, after being refused, grab the prisoner, push her upagainst the bars of the cell, and grind his naked penis into herbuttocks.[8] Mitchell next asserts that Schwenk's allegations consti-tute at worst "same-sex sexual harassment" and not sexualassault. According to Mitchell, it was not clearly establishedat the time of the incidents that same-sex sexual harassmentof prisoners by guards was unconstitutional. In so arguing, hepoints to our decision in Blueford v. Prunty, 108 F.3d 251 (9thCir. 1997), for support. Blueford, however, is entirely distin-guishable. Our holding in that case was specifically predi-cated on the fact that the officer in question never actuallytouched the prisoner but only subjected him to verbal abuse.See id. at 254. In contrast, here Schwenk alleges that she wassubjected to forcible sexual contact by a state prison guard.As set forth above, the law governing that conduct was utterlyunambiguous and clearly established at the time of the allegedattack. When the Supreme Court held in Farmer , 511 U.S. at834, that "[b]eing violently assaulted in prison is simply not`part of the penalty that criminal offenders pay for theiroffenses against society,' " it did not qualify that statementdepending on whether the assault in question was same-sex oropposite-sex (or whether the assault was committed by aninmate or a prison official). In other words, the gender of therapist or the victim does not make the assault in question anymore acceptable under the Eight Amendment.[9] The point of qualified immunity is to allow officials totake action "with independence and without fear ofconsequences." Harlow,
457 U.S. at 819
(citing Pierson v.Ray,
386 U.S. 547, 554
(1967)). There is, however, no soci-etal interest in allowing prison guards to rape (or attempt torape) inmates "with independence" or "without fear ofconsequences." The minimum consequences a sexually preda-tory guard should anticipate for such conduct is civil liability.Viewing the facts in the light most favorable to Schwenk (aswe must at this stage of the proceeding), we conclude that thedistrict court acted correctly in denying Mitchell qualifiedimmunity with respect to Schwenk's Eighth Amendmentclaims.B. GMVA Claim[10] The Gender Motivated Violence Act ("GMVA") wasenacted in 1994 as part of the comprehensive ViolenceAgainst Women Act. In part, the Act provides a new federalcivil-rights cause of action for victims of gender-motivatedviolence -- defined by the Act as "crime[s] of violence com-mitted because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender."42 U.S.C. S 13981(c). The Act expressly applies not only toprivate but also to public conduct--specifically, to actionstaken under color of state law. See 42 U.S.C. S 13981(c).Whether a particular act of violence is gender-motivated andthus falls within the Act's scope is determined in light of the"totality of the circumstances." See S. Rep. 103-138, pt. 4(1993); see also Crisonino v. New York City Hous. Auth., 985F. Supp. 385, 391 (S.D.N.Y. 1997).In considering Mitchell's claims, we first discuss whetherSchwenk failed to state a claim under the GMVA, and second,whether Mitchell is entitled to qualified immunity withrespect to Schwenk's claim under the GMVA.8 Because weconclude that, although Schwenk has stated a claim under theGMVA, the law governing that claim was not clearly estab-lished, we reverse the district court's judgment as to theGMVA claim. 1. Did Schwenk state a claim under the GMVA? On appeal Mitchell contends that Schwenk failed to state acognizable claim under the GMVA. He bases this contentionon three points. First, he argues, the acts of which he wasaccused do not satisfy the statutory definition of a crime ofviolence. Second, he contends that men do not fall under theprotections of the GMVA. Third, he asserts that transsexualsare not covered by the Act in general, and that in particularthe requisite gender motivation and animus are absent in thecase before us. We consider each of these contentions in turn.[11] In order to state a claim under the GMVA, Schwenkmust first allege that she was the victim of a "crime ofviolence." 42 U.S.C. S 13981(c). Under the GMVA, a crimeof violence is defined as "an act or series of acts that wouldconstitute a felony against the person . . . whether or not thoseacts have actually resulted in criminal charges, prosecution, orconviction." Id. S 13981(d)(2). Mitchell argues that his"actions, even if true, have not been determined to be actionswhich would constitute a crime of violence, or actions whichpresented a serious risk of physical injury." He points out thatSchwenk sought no treatment for physical or mental injuriesfrom prison authorities, that she did not pursue her prisongrievance to the final stage once it was denied as untimely,and that she did not mention Mitchell's actions in her infrac-tion hearing, press criminal charges, or file a criminal com-plaint. However, Mitchell's arguments are wholly inconsistentwith the plain language of the statute, which specificallyexcludes such factors from consideration. See id. 13981(e)(2)("[n]othing in this section requires a prior criminal complaint,prosecution, or conviction to establish the elements of a causeof action under" the GMVA). The district court performed thecorrect analysis and properly concluded that Schwenk's alle-gations, if proved, would fall within the definition ofattempted rape, which is a felony in the state of Washington.Thus, the facts and allegations in the record before us satisfythe first element required by the statute--namely, that thealleged assault constitutes a crime of violence. 9[12] The next question is whether the Act applies to males.As an initial matter, Mitchell contends that the district courterred in applying the statute to Schwenk because Schwenk isa man and the GMVA protects only women. In Mitchell'sview, a sexual attack by one man against another cannot be"gender-motivated" under the Act.10 However, Mitchell'sinterpretation of the statute as a "domestic violence law" thatprotects only women is plainly wrong. Although the largerbill within which the GMVA was passed was known as theViolence Against Women Act, the short title of the civil rightscause of action is the "Gender-Motivated Violence Act." Asthe district court correctly noted, the language of the civilrights statute is entirely gender-neutral and there is no indica-tion that Congress intended to exclude men from its purview.11[13] Rather, the legislative history makes it clear that Con-gress specifically intended to include men within the statute'sprotection. For example, the Senate Report accompanying thebill states that the new law "creates an appropriate remedy --a civil action in Federal court -- by a victim of gender-basedviolent crime against his or her attacker. " S. Rep. 103-138, pt.III.B.5.b (1993) (emphasis added). The same Report sug-gested that a victim could prove gender-motivation by show-ing that an attacker "shouted anti-woman (or man) epithetsduring the assault." Id. Senate hearings on the bill includedtestimony about males who had been subjected to gender-motivated violence. See Sen. Hearing 101-939, at 62. Mostcompelling for Schwenk, however, is the public statement ofthe bill's author and Senate sponsor, Senator Biden, that thelaw was specifically intended to protect male victims ofprison sexual assault: I might add . . . in the issue of rape, a male can bring a civil rights action. There is a great deal of rape in prison of males by males. So although it is a very small portion of the problem, this is literally gender- motivated, and in a strange sense gender-neutral. If the crime is a consequence of gender-motivation and that predicate can be laid down in court, then there can be a civil rights action. In almost all rape you'd find that situation.Senator Joseph Biden, Press Conference to Release the SenateReport on S. 11, The Response to Rape: Detours on the Roadto Equal Justice, May 27, 1993, available in Lexis NewsLibrary, Reuter Trans. Report File. We hold, therefore, thatthe plain language of the statute, as well as its legislative his-tory, make it clear that Congress intended the GMVA to applywith equal force to both men and women. This interpretationis consistent with Title VII, which the Supreme Court recentlyheld has long protected men from sex discrimination andharassment regardless of the gender of the supervisor perpe-trating the discrimination. See Oncale v. Sundowner OffshoreServs., Inc., 118 S.Ct. 998, 1001 (1998).[14] Mitchell next contends that even if the statute appliesto men, it does not apply to transsexuals in general or toSchwenk in the circumstances of this case. Mitchell's argu-ment that the GMVA does not apply to transsexuals in generalconflicts squarely with the plain language of the statute,which applies, without qualifications, to "all persons withinthe United States . . . ." 42 U.S.C. S 13981(b). Mitchell alsomakes the more sophisticated argument, however, that wemust reject Schwenk's claims that the attack occurred becauseof gender and that it was due in part to animus based on gen-der. According to Mitchell, Schwenk has alleged only that theattack occurred because of Schwenk's transsexuality, which,Mitchell contends, is not an element of gender, but rather con-stitutes gender dysphoria, a psychiatric illness. We disagree.[15] Under the statute, a crime is motivated by gender if itis "committed because of gender or on the basis of gender,and due, at least in part, to an animus based on the victim'sgender." Id. S 13981(d)(1). Congress intended proof of gendermotivation under the GMVA to proceed in the same way thatproof of discrimination on the basis of sex or race is shownunder Title VII. See S. Rep. 103-138, at 53 (1993); S. Rep.102-197, pt. III.C.4.c., at 50 (1991). In other words, the cor-rect test for determining whether a crime of violence is moti-vated by gender is whether gender was a "motivating factor"--it need not necessarily be the only motivating factor. SeePrice Waterhouse v. Hopkins,
490 U.S. 228, 249
(1989). Asthe Supreme Court held in Price Waterhouse, The critical inquiry . . . is whether gender was a fac- tor in the employment decision at the moment it was made . . . . [S]ince we know that the words "because of" do not mean "solely because of," we also know that Title VII meant to condemn even those deci- sions based on a mixture of legitimate and illegiti- mate considerations.Id. at 241. This standard was codified by the Civil Rights Actof 1991, which provided that a plaintiff can establish a primafacie case of employment discrimination by showing that sexwas a motivating factor even if other factors also motivatedthe practice. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 S 107(a), codified at 42 U.S.C.A.S 2000e-2(m).In order to determine whether Schwenk has alleged thatgender was a motivating factor in the attack, it is first neces-sary to define what is meant by gender. In the context of TitleVII, federal courts (including this one) initially adopted theapproach that sex is distinct from gender, and, as a result, heldthat Title VII barred discrimination based on the former butnot on the latter. See Holloway v. Arthur Anderson, 566 F.2d659, 661-63 (9th Cir. 1977) (refusing to extend protection ofTitle VII to transsexuals because discrimination against trans-sexuals is on basis of "gender" rather than "sex"). Othercourts held, more specifically, that "[t]he term `sex' in TitleVII refers to an individual's distinguishing biological or ana-tomical characteristics, whereas the term `gender' refers to anindividual's sexual identity," or socially-constructed charac-teristics. Dobre v. Amtrak, 850 F. Supp. 284, 286 (E.D. Pa.1993); see also Ulane v. Eastern Airlines, Inc. , 742 F.2d1081, 1084 (7th Cir. 1984) (construing "sex" in Title VII nar-rowly to mean only anatomical sex rather than gender). Male-to-female transsexuals, as anatomical males whose outwardbehavior and inward identity did not meet social definitionsof masculinity, were denied the protection of Title VII bythese courts because they were the victims of gender, ratherthan sex, discrimination.[16] The initial judicial approach taken in cases such asHolloway has been overruled by the logic and language ofPrice Waterhouse.12 In Price Waterhouse, which was decidedafter Holloway and Ulane, the Supreme Court held that TitleVII barred not just discrimination based on the fact that Hop-kins was a woman, but also discrimination based on the factthat she failed "to act like a woman"--that is, to conform tosocially-constructed gender expectations.13 Price Waterhouse,
490 U.S. 228, 240
(1989). What matters, for purposes of thispart of the Price Waterhouse analysis, is that in the mind ofthe perpetrator the discrimination is related to the sex of thevictim: here, for example, the perpetrator's actions stem fromthe fact that he believed that the victim was a man who "failedto act like" one. Thus, under Price Waterhouse, "sex" underTitle VII encompasses both sex--that is, the biological differ-ences between men and women--and gender. Discriminationbecause one fails to act in the way expected of a man orwoman is forbidden under Title VII. Accordingly, the argu-ment that the GMVA parallels Title VII and applies only tosex is in part right and in part wrong. The GMVA does paral-lel Title VII. However, both statutes prohibit discriminationbased on gender as well as sex. Indeed, for purposes of thesetwo acts, the terms "sex" and "gender" have become inter-changeable.[17] Here, it is undisputed that Mitchell knew that Schwenkconsidered herself a transsexual and that she planned to seeksex reassignment surgery in the future. Schwenk testified thatMitchell's demands for sex began only after he discoveredthat she considered herself female and that they escalated andincluded commentary about her transsexuality. Moreover,Schwenk testified that her appearance and mannerisms werevery feminine, and that Mitchell was aware of these character-istics. In fact, Mitchell offered to bring her make-up and other"girl stuff" from outside the prison in order to enhance thefemininity of her appearance. Thus, the evidence offered bySchwenk tends to show that Mitchell's actions were moti-vated, at least in part, by Schwenk's gender--in this case, byher assumption of a feminine rather than a typically masculineappearance or demeanor. Accordingly, we conclude thatSchwenk's assertion that the attack occurred because of gen-der easily survives summary judgment.[18] In addition to being motivated by gender, an attackmust also be "due, at least in part, to an animus based on thevictim's gender." 42 U.S.C. S 13981(d)(1). This is the mosttroublesome part of the statute because animus is generallythought of as reflecting "hostility." Such is not always thecase, however. "Animus" is defined in the Oxford EnglishDictionary as a "mental impulse, actuating feeling, disposi-tion in a particular direction, animating spirit or temper,usually of a hostile character." (Emphasis added.) The term"animus" is, in fact, an ambiguous one and other courts toconsider this question have combined animus and gender-motivation into a single inquiry. See, e.g., Liu v. Striuli, 36 F.Supp.2d 452, 474 (D.R.I. 1999). This, to us, constitutes a rea-sonable and logical approach. In Bray v. Alexandria Women'sHealth Clinic,
506 U.S. 263, 269
-70 (1993), the SupremeCourt noted that, in the context of 42 U.S.C. S 1985, an"animus" requirement can be met not just by acts that aremaliciously motivated, but also by acts arising out ofassertedly benign or even affectionate (though objectivelyharmful) impulses. In essence, what animus demands is sim-ply a strong emotion, such as is present in cases involving"sex-based intent." In other words, animus, for purposes ofthe GMVA, is not necessarily overt hostility; it may in someinstances even involve expressed or believed affection. Weconclude, therefore, that for purposes of the GMVA, it is suf-ficient if a strong emotional response to the victim's genderor sexual identity is partly the cause of the assault. Under suchan approach, if an attack is emotionally motivated--as are allrapes and sexual assaults--it is necessarily animated bygender-animus. See, e.g., Culberson v. Doan, 65 F. Supp.2d701, 706 (S.D. Ohio 1999).[19] The fact that in this case the alleged crime was a sex-ual assault is sufficient in and of itself to support the existenceof gender-based animus for purposes of the GMVA. Rape (orattempted rape) is sui generis. As several courts have noted,rape by definition occurs at least in part because of gender-based animus.14 The psychological factors that underlie a par-ticular rape or the conduct of a particular rapist are often com-plex as well as extremely difficult to determine. It would beboth an impossible and an unnecessary task to fashion a judi-cial test to determine whether particular rapes are due in partto gender-based animus. With respect to rape and attemptedrape, at least, the nature of the crime dictates a uniform, affir-mative answer to the inquiry.[20] In sum, Schwenk has produced evidence and allega-tions that, if proved at trial, would establish a violation of herright to be free from gender-motivated violence under theGMVA. This satisfies the first part of the "analyticalframework" for determining qualified immunity established inSiegert. We next consider whether the law was sufficientlyclearly established at the time in question to provide a reason-able government official with "fair warning" that the allegedconduct was contrary to the GMVA. Lanier,
520 U.S. at 270
-71. 2. Was the Law Clearly Established?Mitchell claims that the district court erred in denying hisclaim of qualified immunity because this court had not yetaddressed the constitutionality of the law and because at thetime of the alleged assault there were no published opinionsinterpreting the GMVA. In Mitchell's view, he cannot be heldliable under the GMVA unless there is a Ninth Circuit opinion(or, presumably, a Supreme Court opinion) holding: (1) thatthe statute in question is constitutional; and (2) that the statuteapplies specifically to the sexual assault on a male to femaletranssexual state prison inmate by a male prison guard. Mitch-ell's second point is, perhaps, more fully described as encom-passing two partially overlapping arguments. The first is thatit was not clearly-established that the GMVA applies to per-sons other than women or to prison inmates. The second isthat it was not clearly established that an attempted rape moti-vated by the victim's transsexuality (or gender dysphoria)meets the test for gender motivation and animus.[21] As the district court properly determined, Mitchell waswrong in his assertion that the GMVA was not clearly estab-lished law because neither this Court nor the Supreme Courthad determined whether it was constitutional. Mitchell wasalso wrong in significant respects as to his second majorpoint. In general, the GMVA clearly does apply to personsother than women---to men, to transsexuals, and to prisoninmates; and it is not necessary that this court have decidedthe precise question. Nevertheless, we are compelled to con-clude that, even though the GMVA prohibits the conductinvolved, its applicability under the facts alleged inSchwenk's claim, was not clearly established at the time ofthe assault. Accordingly, we hold that Mitchell is entitled toqualified immunity with respect to the GMVA claim.We will review Mitchell's contentions in order. Mitchellfirst contends that even if the terms of the GMVA are clear,the statute could not clearly establish the law because thiscourt had not held that the GMVA was constitutional. Indeed,at the time of the alleged events at issue in this case, no courtof appeals had yet ruled on the law's constitutionality. Wenote that after the events in this case, the Fourth Circuit heldthe GMVA unconstitutional, and that the Supreme Court hasgranted certiorari in order to review that question. SeeBrzonkala v. Virginia Polytechnic Institute and State Univ.,169 F.3d 820 (4th Cir. 1999) (en banc), cert. granted, 120S.Ct. 11 (Sept. 28, 1999). Mitchell's contention, however, isnot that the Act is unconstitutional. Even when asked specifi-cally at oral argument, he declined to take that position.Rather, he argues a different point--essentially, that statutesrequire judicial ratification before they can be consideredclearly-established law. We reject Mitchell's argument.It is well-established that acts of Congress enjoy a strongpresumption of constitutionality and that newly-passed stat-utes do not require judicial ratification in order to take effect.See, e.g., United States v. X-Citement Video, Inc., 513 U.S.64, 73 (1994) ("[W]e do not impute to Congress an intent topass legislation that is inconsistent with the Constitution asconstrued by this Court."). Under this rule, state officials --like all other persons -- are responsible for obeying a lawpassed by Congress unless the Supreme Court or, at a mini-mum, a United States Court of Appeals or district court in thecircuit or district in which the state official performs hisduties, strikes down the law as unconstitutional. Mitchellacknowledges that no court had done so at the time of thealleged attack. Thus, he was required to presume the statute'sconstitutionality and conform his conduct to that law. Stateofficials are certainly not entitled, as Mitchell apparentlybelieves, to ignore a new federal law in the hopes that a courtwill subsequently strike it down. If officials choose to ignorea federal law, they do so at their peril.15 Accordingly, Mitchellis not entitled to qualified immunity from Schwenk's GMVAclaim on the basis of the absence of a court opinion confirm-ing the statute's constitutionality.Mitchell's second point, as we noted earlier, in fact encom-passes two arguments: first, that it was not clearly establishedat the time of the attack that any person other than a womancould claim the protections of the Act,16 and second, that itwas not clearly established at the time of the attack that gen-der motivation and animus encompassed acts motivated by avictim's transsexuality. As discussed earlier, courts ordinarilylook to prior case law to determine whether the "contours ofthe right" have been defined at an appropriate level of speci-ficity. However, a statute itself, standing alone, may providesufficient evidence that the law was clearly established at thetime of the conduct. See, e.g., Doe v. Petaluma City Sch.Dist., 54 F.3d 1447, 1452 (9th Cir. 1995).The question then is whether the GMVA did provide fairwarning that the conduct in question was contrary to the stat-ute's commands. With respect to who is protected by the stat-ute, the language of the GMVA is utterly unambiguous. Thestatute states that "all persons within the United States shallhave the right to be free from crimes of violence motivated bygender," and specifically includes prison officials and others"acting under color of state law" within its reach. 42 U.S.C.S 13981(b), (c). The statute could not be clearer: it protects allpersons and applies to all government officials. There is noth-ing in the GMVA to suggest that it would not apply to men,to transsexuals, or to prisoners. On the contrary, the plain lan-guage of the statute makes it clear that such persons do fallwithin its purview. Accordingly, as in Alexander v. Perrill,916 F.2d 1392, 1397 (9th Cir. 1990), there is no need to "lookto decisional law" in order to determine who enjoys the rightin question.[22] Mitchell's argument, however, also comprehends thepoints discussed earlier as to what is intended by the provisionthat a crime of violence must have been committed "becauseof gender or on the basis of gender, and due, at least in part,to an animus based on the victim's gender." 42 U.S.C.S 13981(d)(1). With respect to that question, the terms of thestatute are considerably less clear. Although the GMVAdefines a "crime of violence" by reference to state law,17which itself may be quite clear, see 42 U.S.C. S 13981(d)(2),what constitutes the requisite gender motivation and genderanimus is, as the earlier discussion in this opinion makes evi-dent, not so readily apparent from the language of the statute.Thus, although we now hold that a violation of state lawsregarding rape or sexual assault necessarily constitutes a vio-lation of the GMVA regardless of the actor's motivation, stateof mind or emotions, we also hold that the law regarding gen-der motivation and animus was not clearly established at thetime of the assault. Accordingly, we find that Mitchell is enti-tled to qualified immunity with respect to Schwenk's GMVAclaim.CONCLUSIONIn conclusion, the facts and allegations in the record clearlymake out a claim for relief under both Section 1983 and theGMVA. Mitchell is not entitled to qualified immunity fromSchwenk's claim under Section 1983 for violation of herEighth Amendment rights. It was well established prior to theattack that Mitchell's alleged conduct constituted a violationof the Eighth Amendment, and no reasonable prison officialcould have believed otherwise. Although the GMVA doescover Mitchell's alleged conduct, the law regarding the scopeand applicability of that statute was not clearly established atthe time of the assault on Schwenk, at least with respect toquestions of gender motivation and animus. Accordingly, wereverse the district court's denial of qualified immunity toMitchell with respect to the GMVA claim.The decision of the district court is therefore AFFIRMEDin part and REVERSED in part.
___________________________FOOTNOTES 1 In using the feminine rather than the masculine designation when refer-ring to Schwenk, we follow the convention of other judicial decisionsinvolving male-to-female transsexuals which refer to the transsexual indi-vidual by the female pronoun. See, e.g., Murray v. United States Bureauof Prisons, 106 F.3d 401, 401 n.1 (6th Cir. 1997) (unpublished disposi-tion); Meriwether v. Faulkner, 821 F.2d 408, 408 n.1 (7th Cir. 1987).2 The GMVA was enacted as subtitle C of the Violence Against WomenAct of 1994. See 42 U.S.C. S 13981.3 For purposes of reviewing a grant or denial of summary judgment,even in a qualified immunity case, the reviewing court must assume thenonmoving party's version of the facts to be correct. See Liston v. Countyof Riverside, 120 F.3d 965, 977 (9th Cir. 1997).4 In support of Schwenk's contention that she is transsexual and hasadopted a female gender role, Schwenk submitted the declaration of KarilKlingbeil, an expert in prison sexual assault and Clinical Associate Profes-sor of Social Work and adjunct Professor of Psychiatry and BehavioralSciences at the University of Washington. On the basis of a clinical inter-view with Schwenk and an extensive review of Schwenk's medical, psy-chiatric, and correctional records, Klingbeil concluded that it was"apparent" that Schwenk considers herself to be "female and would pref-erentially dress and live as a female, to the point of having substantiveevaluation including surgery to obtain -- as far as possible -- femaleanatomy." Klingbeil furthermore concluded that there is no indication Schwenk's behavior was in any way incon- sistent with gender dysphoria during his incarceration at Walla Walla. By all accounts, Schwenk conducts himself among his peers and with his immediate authorities as a female insofar as he is allowed by prison regulations, states a preference for the female identity as opposed to mere sexual gratification for the female sex roles, and has believed this since early adolescence and even before adolescence.5 This court has variously characterized the inquiry into qualified immu-nity as either two-part or three-part. See id. , 33 F.3d at 1208 nn. 14-15.However, the specifics of the particular characterizations are not particu-larly important. As we observed in Knox,"[r]egardless of any formalisticdifference in description, our approach has been consistent and essentiallyequivalent." 124 F.3d at 1107 n.2. That approach has always been to"determine whether a reasonable officer could have believed lawful theparticular conduct at issue." Id. at 1107 (citations omitted).6 Mitchell argues that he is entitled to qualified immunity becauseSchwenk has not produced any evidence that she sustained any seriousinjury. However, as stated above, there is no requirement that the plaintiffproduce such evidence where the assault is one, such as attempted rape,that lacks any legitimate penological justification and is "offensive tohuman dignity." Moreover, Schwenk did in fact produce evidence in theform of the affidavit of Karil Klingbeil that Schwenk sustained seriousemotional harm as a result of the attack.7 In Mathie, an inmate was anally raped by a correctional officer. Thedistrict court held that the "sexual abuse and sodomy perpetrated . . .against the powerless inmate was applied maliciously and sadistically inorder to afford personal gratification to Fries. These malicious acts vio-lated all contemporary standards of decency." 935 F. Supp. at 1300.8 Although Mitchell presents these as two separate claims, the two inqui-ries are in fact both part and parcel of the qualified immunity analysis,which requires us to ask first, whether the right in question has been vio-lated and second, whether the right was clearly-established at the time ofthe violation. See Siegert,
500 U.S. at 231
-32.9 In considering a GMVA claim, the court reviews the facts to determinewhether they would, if proved, constitute a felony, but the question ofwhether the elements have in fact been proved is for the jury to decide.See Crisonino, 985 F. Supp. at 393 (holding that the court determines asa matter of law whether the allegations constitute a crime of violencewithin the meaning of the GMVA, but that "the jury will decide as a mat-ter of fact whether the elements constituting a felony have in fact beenproved in the particular case").10 Specifically, the statute provides that "[n]othing in this section entitlesa person to a cause of action . . . for random acts of violence unrelated togender or for acts that cannot be demonstrated by a preponderance of theevidence, to be motivated by gender." 42 U.S.C.S 13981(e)(1).11 Another district court within this circuit recently upheld the GMVAin the context of a claim by an accused wife-beater who claimed that thelaw created an impermissible gender classification scheme that violatedhis right to equal protection. In a published opinion, the district court heldthat the act was gender-neutral and offered an equal level of protection toboth men and women. See Ziegler v. Ziegler, 28 F. Supp. 2d 601, 616(E.D. Wash. 1998).12 In any case, the purpose of statutory interpretation is to "ascertain thecongressional intent and give effect to the legislative will." Pressley v.Capital Credit & Collection Serv., Inc., 760 F.2d 922, 924 (9th Cir. 1985);see Brothers v. First Leasing, 724 F.2d 789, 789 (9th Cir. 1984). Wherelimiting language present in earlier statutes is not included in later legisla-tion, it can be presumed that the omission was intentional. See Russello v.United States,
464 U.S. 16, 23
(1983). Furthermore, when Congressadopts language from case law into statutes, there is a strong presumptionthat Congress intends the language to have the same meaning in the statutethat it has in the case law. See Espinoza-Gutierrez v. Smith, 94 F.3d 1270,1275 (9th Cir. 1996). We may presume that Congress, in drafting theGMVA, was aware of the interpretation given by the pre-PriceWaterhouse federal courts to the terms "sex " and "gender" under Title VIIand acted intentionally to incorporate the broader concept of "gender."This interpretation is particularly appropriate given the remedial purposesof the statute. See Almero v. INS, 18 F.3d 757, 762 (9th Cir. 1994)("remedial legislation should be construed broadly to effectuate itspurpose"). We therefore decline to give the term "gender," as used in theGMVA, a narrow interpretation that would exclude all those, likeSchwenk, who do not conform to socially-prescribed gender expectations.13 Moreover, as the Court made clear in Oncale, same-sex discriminationis cognizable under Title VII under certain circumstances. See Oncale, 118S.Ct. at 1001-02.14 Prison rape is a particularly serious problem. It is well-documented inboth scholarly literature and reported judicial opinions that young, slight,physically weak male inmates, particularly those with "feminine" physicalcharacteristics, are routinely raped, often by groups of men. See Farmerv. Brennan,
511 U.S. 825
, 852-53 & n.* (Blackmun, J., concurring) (col-lecting cases); see Robert W. Dumond, The Sexual Assault of MaleInmates in Incarcerated Settings, 20 Int'l J. Soc. L. 135-157 (1992); KevinWright, The Violent and Victimized in the Male Prison, 16 J. OffenderRehabilitation 144 (1991), reprinted in Michael C. Braswell ed., PrisonViolence in America 145-65 (2d ed. 1991); Nobuhle R. Chonco, SexualAssaults Among Male Inmates: A Descriptive Study, 68 Prison J. 1, 72-82(1989); A. Nicholas Groth and Ann W. Burgess, Male Rape: Offendersand Victims, 137 Am. J. of Psychiatry 806-19 (1980). Once raped, aninmate is marked as a victim and is subsequently vulnerable to repeatedviolation. The victims of these attacks are frequently called female namesand terms indicative of gender animus like "pussy " and "bitch" during theassaults and thereafter. See, e.g., LaMarca v. Turner, 662 F. Supp. 647,691-95 (S.D. Fla. 1987) (rapists told victims "that's some good pussy,"that they were now "girls," and forced them to "look female and accentu-ate his femininity"). After they are raped, victims are consigned to"passive" female sexual and social roles within the prison. See StephenDonaldson, Op. Ed., The Rape Crisis Behind Bars, New York Times,December 29, 1993, at A21; Gilian Mezey and Michael King eds., MaleVictims of Sexual Assault (1992); C.L. Anderson, Males as Sexual AssaultVictims: Multiple Levels of Trauma, 7 J. Homosexuality 2 (1974). In con-trast, prison rapists commit assaults in part to establish and maintain amasculine gender. According to the psychological literature, ibid., prisonrapists strongly resist the characterization of their activities as homosex-ual. Instead, they conceive their sexual partners as female members of theprison social order. Thus, as with rape in general, all prison rape occurs"because of" gender--both that of the rapist and that of his victim.15 This, of course, does not preclude state officials from testing new stat-utes by asserting their unconstitutionality, even in the course of a qualifiedimmunity defense.16 We note that Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct.998 (1998), establishing protection for men who are the victims of same-sex harassment under Title VII, had not been decided at the time of Mitch-ell's assaults.17 In general, the violation of a state or federal statute by an official isnot enough to deprive the official in question of qualified immunity,unless that statute or regulation provides the basis for the cause of actionsued upon. See Davis v. Scherer,
468 U.S. 183
, 194 n.12 (1984); see, e.g.,Carlo v. City of Chino, 105 F.3d 493, 501 (9th Cir. 1997). In this case,state statutes provide only a partial basis for claims under the GMVA.Commission of what constitutes a felony under state law is necessary, butnot sufficient to state a claim under the GMVA; rather, the plaintiff mustalso allege gender motivation and animus.