Oregon Judge Blocks Housing Trans Women in Men’s Prisons
The ruling directly conflicts with a Trump order requiring transgender inmates to be housed according to their assigned sex at birth.
U.S. Magistrate Judge Mark Clarke, of the U.S. District Court of Oregon, issued a preliminary injunction on April 29 blocking the placement of transgender women in men’s prisons and ordering the Oregon Department of Corrections to conduct individualized safety assessments for transgender inmates — directly conflicting with President Donald Trump’s executive order requiring inmates to be housed according to their assigned sex at birth.
The case stems from a class-action lawsuit brought by two prisoners on behalf of current and future transgender inmates, accusing the state of failing to protect transgender women from sexual and physical violence by housing them in men’s prisons.
Clarke said his preliminary injunction is not as sweeping as it may appear because it requires corrections officials to follow the same practices they already claim to use. But he noted that despite individualized evaluations, more than 90% of transgender women in Oregon’s prison system are housed in men’s prisons.
The current system appears to operate under the presumption that transgender women should generally be housed in men’s prisons, with rare exceptions, Clarke said. He argued the presumption instead should be that transgender women are housed according to their gender identity.
“It is undisputed in the record before the Court that this default presumption, and their overwhelming placement in men’s prisons, has exposed transgender women inmates to a high risk of violence and sexual assault,” Clarke wrote in a 38-page opinion. “The undisputed facts additionally show that ODOC has systemically failed to appropriately address this exposure.”
The injunction will remain in effect for 90 days and can be renewed through a motion by the prisoners who filed suit, who are identified only by their initials. Clarke also ordered a status report within a month to determine whether the Department of Corrections is complying with the injunction.
According to state data, 117 prisoners have self-identified as transgender women while in custody. Of those, 26 have sought housing at the state’s women’s prison, Coffee Creek Correctional Facility, but only eight are currently housed there.
Clarke found that state lawyers failed to support their claim that some transgender women request placement in men’s prisons because they are not ready to come out as transgender.
The state also argued that placing transgender women at Coffee Creek could endanger cisgender female prisoners, who could face a risk of sexual assault from “convicted and potential sexual predators at intake who may not be sincere in their asserted gender identity.”
Lawyers for the state claimed they were aware of at least one individual who falsely claimed to be transgender in order to be placed in a women’s prison and prey on female inmates. But Clarke found that the state failed to provide supporting evidence “for even the single purported instance of a faked transgender identity.”
“The Court is not naive: housing someone with a complicated status of both ‘vulnerable’ and ‘aggressive’ is extremely challenging,” Clarke wrote in his opinion. “However, the continued placement of a victimized transgender woman in a men’s prison is undeniably different treatment than the treatment received by cisgender women, whose placement in a men’s facility is never an option, regardless of their history of violence or sexual aggression.”
John Burgess, an attorney for the plaintiffs, said the judge’s ruling does not require transgender prisoners to be automatically transferred to women’s prisons.
“It requires the state to start from a baseline of housing people consistent with their gender identity, while still allowing individualized, safety-based decisions,” Burgess told The Oregonian. “We believe the court reached the right result, and this preliminary injunction is an important first step toward bringing ODOC’s housing system into compliance with the Constitution.”
But the decision conflicts with the federal government’s current policy on housing transgender prisoners. Shortly after taking office last year, President Donald Trump issued an executive order refusing to recognize transgender identity as valid and directing that transgender women prisoners be housed in men’s prisons. Those provisions were upheld by the D.C. Circuit Court of Appeals last month, allowing the Trump administration to transfer 18 transgender inmates from women’s prisons to men’s facilities.
To comply with Trump’s order, the Department of Justice also ordered prison inspectors to stop evaluating key protections created under the 2003 Prison Rape Elimination Act designed to prevent sexual violence against transgender, intersex, and gender-nonconforming inmates.
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