Guard told transgender man: 'I need to see what is in your pants,' lawsuit claims

MORRISTOWN, N.J. — Nautica Pagan, a transgender man living in Clifton, N.J., says he has never faced any discrimination — not from any member of his community. That remained the case, he recently recalled, until he entered a supermarket late in the evening of May 12.

In a lawsuit filed last month in Superior Court in Jersey City, Pagan, 33, details how he allegedly faced an invasion of privacy, false imprisonment and discrimination when he entered Food Fair La Gran Marqueta on Market Street. In the suit, Pagan claims he was stopped by a security guard — whom Pagan alleges was an an off-duty Essex County Sheriff's officer — who three times said, "I need to see what is in your pants."

Then, according to Pagan's suit, the guard demanded he show his prosthetic penis.

“Never I’d say I faced any discrimination in my life, until this point,” Pagan told NorthJersey.com and The Record in a recent interview.

The general manager of the store, Elvis Rodriguez, denied the severity of the incident.

“I told them they’re not putting me in a bad spot, but it’s very uncomfortable when unfortunately it’s a high theft area,” Rodriguez said, “and it happened the way that it did, but it wasn’t like anyone ripped their pants off.”

The night in question

The incident occurred at 10 p.m. on May 12 and the lawsuit is still pending. Pagan said he was there to meet someone to sell a phone, choosing a public place for the exchange. He said he may have been accused of shoplifting because the door he entered from is often used by shoplifters. Rodriguez, who has been the store's general manager since it opened about five years ago, said Pagan drew the security guard's attention because he entered the store around closing time and tried to leave through an entrance without buying anything.

The guard then put his foot in front of Pagan and prevented him from leaving while repeatedly stating, “I need to see what is in your pants,” according to Pagan and the lawsuit. Pagan told the guard about the prosthetic, and the guard replied that he needed to call a female officer to inspect Pagan, the lawsuit states. Pagan tried to leave the store at that point but the guard kept him there and “specifically stated he needed to inspect the inside of [Pagan’s] pants,” the suit says. 

Rodriguez said Pagan did not immediately tell the guard about the prosthetic and referred to it as a personal or private item.

A long cylinder package of salami is one of the more frequently shoplifted items at the store, according to Rodriguez.

“It’s expensive and they sell it to little corner stores and stuff like that,” he said.

A female cashier was then called over to inspect Pagan and showed her the prosthetic penis and his vagina, according to the lawsuit. Rodriguez said the cashier only glimpsed the prosthetic, not Pagan’s vagina, and that Pagan did not object to going into the restroom with the cashier at the time. 

Pagan cried through the ordeal and felt humiliated, the lawsuit states.

“I was asking God to please get me out of the supermarket as fast as possible,” Pagan said as he fought back tears during the interview with The Record, which took place earlier this month at his attorney’s office in Morristown.

Rodriguez, though, said he was told that Pagan did not cry for help or beg to leave.

“I felt horrible when she was telling me she was crying and everything but did we detain her? No,” Rodriguez said. “Did we force her to show us [Pagan’s vagina]? No. We basically told her we need to see what’s in your pants because it [the prosthetic] was very exaggerated.”

Pagan exited the restroom and as he left the store the guard stated “I am so sorry,” the lawsuit stated. Pagan said the guard, who the store owner later told him was an Essex County Sheriff’s officer, had an aggressive demeanor based on how he spoke to him and by putting his foot down in front of Pagan.

Rodriguez said the security guard would have checked anyone the same way regardless of gender and that when people try to shoplift they often hide items in their pants. 

The aftermath

Kevin Lynch, spokesman for the Essex County Sheriff’s Department, said they have not been "served papers" and he has “no details about this alleged incident.”

Rodriguez said the security guard that night works Friday evenings and is still employed at the store. The guard has worked there for six to eight months and Rodriguez said they never had any trouble with him.

“His job is to make sure everybody here is safe,” Rodriguez said.

Months later and as the lawsuit continues, the memory of that night still haunts Pagan.

“I try my best not to think about it,” he said, “but certain things bring it up.”

It marked the first time Pagan said he felt ashamed of who he is. The Clifton resident works as a manager at an auto mechanic business, and, before that worked as a mechanic following his graduation from Lincoln Tech. Pagan said he always liked the ability to take things apart and put them back together as a car mechanic.

Born a woman, Pagan said he first identified as a transgender man around six years ago.

“I always knew, but I wasn’t sure what I was feeling,” he said. He then spoke to his mom about it to figure himself out.

“Moms know best,” he continued.

As for the lawsuit, Pagan’s attorney, Thomas A. McKinney of Castronovo and McKinney, said he expected a response from the defendants some time in the next month. Rodriguez confirmed that he'd retained a lawyer.

Robyn Gigl, an attorney at GluckWalrath with offices in Trenton and Red Bank, said it sounds like a "strange case."

"I think it's a very fact sensitive case as to whether or not there was coercion, whether or not there was consent," said Gigl, a former board member for the Garden State Equality organization who identifies as a transgender woman.

Dru Levasseur, director of the Transgender Rights Project at Lambda Legal at Rutgers University, said it was "pretty disturbing" when he heard about the incident. Fourth Amendment rights related to searches and seizures figure to be prominent in the case, Levasseur said. "Frisks" can be done with reasonable suspicion of a crime but only pertain to the outside of clothing, Levasseur continued.

Levasseur said he also feels for Pagan based on the account.

"What kind of insane world are we living in that a police officer would think it would be OK to force somebody to display their genitals or get into somebody's pants?" he said.

In the meantime, Pagan said he will stay true to who he is and hope that the result of the lawsuit can help others.

“Imagine someone making you afraid of who you are,” he said. “I don’t want this to happen to anyone like me.”

Email: jongsma@northjersey.com

© 2017 USATODAY.COM


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