US Appeals Court Allows Transgender Women to Be Housed in Men's Prisons in Oregon
A federal appeals court has ruled that the state of Oregon can continue to house transgender women in male correctional facilities. The decision overturned a lower court’s ruling that previously required trans women to be placed in women’s prisons by default, followed by an individual assessment of each case.
A three-judge panel of the 9th Circuit Court of Appeals, all appointed by Donald Trump, unanimously overturned the April ruling by U.S. Magistrate Judge Mark D. Clarke. Judge Eric Tung, who wrote the 18-page opinion, called the previous ruling “lacking record support and clearly erroneous.” He noted that the lower court “improperly disregarded the overwhelming contrary evidence presented by Defendants in favor of baseless speculation.” In the text of the decision, Tung described trans women as “male inmates who claim to be female” and stated that housing them in women’s prisons “compromises public safety.” The word “transgender” was repeatedly put in quotation marks in the court document.
According to LGBTQ Nation , plaintiffs’ attorney John Burgess criticized the language of the court’s decision. He emphasized that the question of the court recognizing gender identity was not raised, and the essence of the lawsuit was whether the state is taking reasonable measures to protect trans women from the high risk of physical and sexual violence in men’s prisons. A spokesperson for the Oregon Attorney General’s Office welcomed the decision itself as a rejection of “across-the-board policies” in favor of a case-by-case approach, but condemned the language used by the judges, noting that it “does not reflect our values.”
The lawsuit against the state and the Oregon Department of Corrections was filed by two anonymous female plaintiffs who alleged dangerous conditions and violence in men’s facilities. According to the state, 117 inmates in Oregon identify as trans women. Of those, 26 have requested a transfer to the state’s only women’s prison, the Coffee Creek Correctional Facility, but only 8 have been placed there.
State lawyers had previously argued against mass transfers. They claimed that some trans women could allegedly pose a danger to cisgender inmates, and some malingerers might use trans identity to access women. At the same time, the trial judge noted that the state did not provide any supporting documentation for even a single such instance of a faked identity.
The issue of housing transgender people in U.S. correctional facilities remains the subject of fierce legal and political debate. While human rights advocates point to the high risk of violence against trans women in men’s prisons, their opponents claim the need to protect the safety of biological women. The 9th Circuit Court of Appeals is the largest federal appeals court in the United States, with jurisdiction over a number of western states, including Oregon.
