A federal judge temporarily blocked prison officials from moving a transgender woman to a men’s prison and cutting off her access to gender-affirming care.
The temporary restraining order issued on Sunday from U.S. District Court Judge George O’Toole prevents part of President Donald Trump’s executive order declaring there are only “two sexes” from going into immediate effect. The order, signed by the president on his first day in office, called on government officials to ensure that there are no transgender women in women’s detention centers and that no federal funds are used to provide gender-affirming care to people in Bureau of Prisons custody.
The day after Trump signed the executive order, BOP moved a transgender woman in Massachusetts identified as Maria Moe into a solitary confinement unit typically used for disciplinary purposes, pending transfer to a men’s facility. Moe sued the Trump administration on Sunday night — the first known legal challenge to the executive — alleging that the directive put her safety at risk. The case was sealed until Thursday, when the court held a hearing on whether to grant Moe further relief.
“We are relieved that our client is staying put for now,” Jennifer Levi, senior director of transgender and queer rights at GLAD Law and one of Moe’s lawyers, said in a statement. “For over ten years, prison officials have had the discretion to make individualized housing decisions to protect transgender women from severe violence in men’s facilities. Corrections experts agree that case-by-case assessment is crucial for safety throughout the prison system and oppose any blanket rule that would overturn a policy that has been proven to work.”
Moe identified as a girl by the time she was in middle school, began medically transitioning when she was 15 years old, and has been incarcerated in women’s facilities since her arrest. Her incarceration was “generally unremarkable,” her mother wrote in an affidavit. On Jan. 21, the day after Trump signed the executive order, Moe called her mother “frantic” and told her “through tears” that she was going to be transferred to a men’s prison because of the order, according to the affidavit. By Jan. 25, her sex classification on publicly available BOP records had been changed from “female” to “male.”
“When your child is incarcerated, you worry about them,” wrote Moe’s mother, whose name is redacted in the affidavit. If she “were transferred to a men’s prison, my fears would multiply,” her mother added, citing fears that Moe would be targeted for harassment, abuse and violence — and suffer from being cut off from her medication.
After Moe filed her motion for a temporary restraining order, she was removed from solitary confinement and returned to general population, Shannon Minter, legal director of the National Center for Lesbian Rights and one of Moe’s lawyers, told HuffPost.
In her complaint, Moe alleged that BOP’s plan to transfer her violates the Fifth Amendment’s due process protections and the Eighth Amendment’s protections against cruel and unusual punishment. It also argues that Trump’s executive order did not follow federal law related to rulemaking.
The Prison Rape Elimination Act, a law enacted in 2003 but not implemented until 2012, requires prison officials to conduct housing reviews for incarcerated trans people at least twice a year to determine, on a case-by-case basis, where they should be imprisoned. The law states that the individual’s views on their own safety should “be given serious consideration.”
Incarcerated transgender people are disproportionately targeted for violence and sexual assault. “This reality is uncontroverted,” Levi wrote in a court filing. “A 2013 study by the Department of Justice estimated that nearly 35% of incarcerated transgender people in state and federal prisons were sexually assaulted between 2007 and 2012. From 2011 to 2012, transgender people were sexually assaulted at nearly ten times the rate for the general incarcerated population.”
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Cutting off Moe’s access to hormone therapy would “trigger severe physical and psychological consequences,” Levi continued. “Without hormone therapy, her body will undergo significant and irreversible changes that will exacerbate her gender dysphoria, causing the kind of disabling depression, anxiety, lack of self-esteem, and suicidality that characterize untreated gender dysphoria.”
Openly trans people account for less than 1% of people in federal prisons, according to the Bureau of Prisons. The bureau does not disclose how many trans people are currently incarcerated in prisons that match their gender. In the days following Trump’s executive order, lawyers and advocates told HuffPost that trans women in BOP facilities throughout the country were being placed in isolation and notified of upcoming transfers to men’s facilities.
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