WASHINGTON – A federal judge on Monday blocked the Justice Department from transferring 12 transgender female inmates to male prisons, in a setback for President Donald Trump’s executive orders denying recognition of transgender people.
The inmates housed at Bureau of Prisons facilities filed their lawsuit Jan. 30 because of concerns they would lose access to medical treatment if transferred to prisons that didn’t recognize their gender identities. The inmates argued they would be at substantial risk of serious harm if transferred, a violation of the Eighth Amendment to the Constitution.
U.S. District Judge Royce Lamberth had issued a temporary restraining order Feb. 18 against transferring the inmates. Lamberth, an appointee of former President Ronald Reagan, extended the block with a preliminary injunction by ruling the inmates were likely to win their case under the Eighth Amendment.
Lamberth said he was unpersuaded the inmates would be safer at a low-security men’s prison than in their current facilities, as the government proposed. He wrote that “numerous government reports and regulations recognizing that transgender persons are at a significantly elevated risk of physical and sexual violence relative to other inmates when housed in a facility corresponding to their biological sex.”
The case is one of several pending in federal courts where transgender people are arguing their rights are being trampled under Trump’s orders. At a National Governors Association meeting last week, Maine Gov. Janet Mills told Trump she would see him in court over his threat to halt federal funding to states that recognize transgender athletes.
In another case, transgender troops are fighting a policy to halt their recruitment and potentially remove them from the military.
Trump signed an executive order on Jan. 20, his first day in office, that designated only two sexes for people to protect women from what he said was “gender ideology extremism.” He issued another order Feb. 5 barring transgender athletes from competing against women athletes.
In the prison lawsuit, the inmates argued they would be at “extremely high risk of harassment, abuse, violence and sexual assault,” along with strip-searches by male correctional offices. The inmates could also be denied medical care they have received for years for gender dysphoria, the lawsuit said. The inmates were named by pseudonym, and their prisons were blacked out.
Trump’s presidential campaign spent about $215 million on advertising that vilified transgender Americans, according to the lawsuit.
As of Feb. 20, the Bureau of Prisons had 2,198 transgender inmates in prisons and halfway houses, including 1,488 people identified as male at birth who now identify as female, and 710 people identified as female at birth who now identify as male, according to Rick Stover, senior deputy assistant director of the bureau’s designation and sentence computation center. Prisons have 22 transgender females in female institutions and one transgender male in a male institution, Stover said in a statement for the lawsuit.
Government lawyers argued that Lamberth had no jurisdiction over the prison issue and that he had nothing to rule on because prisons haven’t adopted a new policy yet for transgender inmates.
One of Trump’s orders required the Bureau of Prisons to revise its policies concerning medical care so that no federal funds were spent “for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
The D.C. Circuit has long recognized that “the segregation of inmates by sex is unquestionably constitutional,” government lawyers said in their filing.
But Lamberth ruled that housing transgender inmates in male prisons would exacerbate their gender dysphoria even if they weren’t subject to physical or sexual violence because “the mere homogeneous presence of men will cause uncomfortable dissonance.”
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