Appeals Court Clears The Way For Trans Women Inmates To Be Transferred To Men’s Facilities
A three-judge panel found insufficient evidence to support the claim that the transfers would constitute “cruel and unusual punishment.”
Featured image: via Getty Images (credit: EvgeniyShkolenko)
On Friday, April 17, a three-judge panel for the U.S. Court of Appeals for the District of Columbia found insufficient evidence to support the claim that moving trans women to men’s facilities would constitute “cruel and unusual punishment.” Two of the judges specifically found a lack of support for the idea that the trans women would be vulnerable “to violence, abuse, and psychiatric harm in men’s prisons.”
Such transfers have been blocked for more than a year, as a result of a district court judge’s previous rulings. Now that a federal court has vacated those rulings, the Bureau of Prisons could transfer 18 transgender women to men’s prisons within a matter of weeks.
According to the court filing, “Plaintiffs sued to block their transfers, claiming in relevant part that incarceration in men’s facilities will expose them to substantial risk of grave harm in violation of the Eighth Amendment to the U.S. Constitution.” Ultimately, however, the court decided that “the existing record does not include findings of fact about the individual plaintiffs’ vulnerabilities, or about the reasons on which the Bureau relied in placing plaintiffs in women’s facilities in the first place.”
At the same time, the district court remains open to providing the trans women “relief” if the claims can be supported by “further findings of fact and analysis.”
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According to the filing, each of the 18 plaintiffs has been diagnosed with gender dysphoria and all plaintiffs have received long-term hormone therapy which has caused some plaintiffs to “grow breasts” or develop “more feminine” features. The filing references Trump’s Executive Order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which directs the Attorney General and the Secretary of the Department of Homeland Security to “ensure that males are not detained in women’s prisons or housed in women’s detention centers.”
Since last year, the Plaintiffs have brought multiple legal actions challenging their transfers (or impending transfers) from women’s to men’s facilities. Preliminary relief had been granted. Plaintiffs had shown it was likely that they could prove 1) transgender women’s “significantly elevated risk of physical and sexual violence relative to other inmates when housed in a facility corresponding to their biological sex”; and (2) the risk that “placement in a male penitentiary by itself will exacerbate the symptoms of [plaintiffs’] gender dysphoria.”
But the Plaintiffs’ Eighth Amendment claims did not make individualized findings, i.e. effects of sex reassignment treatment on an individual or prior experience of assault in men’s prisons. The Eighth Amendment requires more than showing a generalized risk — it must show substantial risk to a specific person.
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Likely, the Plaintiffs will go back to the courts to address the specific issue that these judges identified. This could involve looking at individual medical records, expert testimony, prior experiences with assault, self-harm and so forth. In the meantime, these incarcerated trans women could be transferred at any time to men’s prisons.
Studies show that trans women face a heightened risk of violence in men’s prisons. One National Inmate Survey found that 40% of trans persons incarcerated in state and federal prisons had been sexually victimized during the course of one year. The Marshall Project notes that 2,000 transgender people are incarcerated in federal prisons, and are disproportionately targeted for abuse and assault.
