By Maxine Bernstein
Oregonlive.com
PORTLAND, Ore. — A federal judge has ordered the Oregon Department of Corrections to house transgender women in state prisons based on their gender identity and only after completing safety assessments on each case.
Two prisoners sued the state, alleging it failed to protect transgender women from sexual and physical violence by housing them in men’s prisons where they faced dangerous and degrading conditions. They sued on behalf of a class of current and future transgender women prisoners.
U.S. Magistrate Judge Mark D. Clarke said his preliminary injunction ordering individual assessments for all transgender women in custody isn’t nearly as sweeping as it may appear because he’s requiring corrections officials to follow the same practice that they say they already use.
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But he noted that despite the evaluations, more than 90% of transgender women in Oregon’s prison system are housed in men’s prisons.
The current system, he said, appears to begin with a presumption that transgender women should generally be housed in men’s prisons, with rare exceptions.
Instead, he ruled, the presumption should be that transgender women will be housed according to their gender identity.
Clarke said his order is “narrowly drawn,” allowing for individual assessments without a mandate on specific placements for any specific prisoner.
The injunction will remain in effect for 90 days and may be renewed through a motion by the prisoners who filed suit. They are identified only by initials. The judge said he expects to get a status report within a month from both sides on how the department is carrying out the order.
“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.”
That’s why Clarke said he needed to take action immediately.
“The Defendants, ODOC, and the State of Oregon have a legal obligation to immediately do better to protect transgender inmates, a very vulnerable population,” he wrote.
According to state data, 117 prisoners who have self-identified as transgender women are in custody. Of those, 26 have sought housing at the state’s women’s prison, Coffee Creek Correctional Facility, and eight are actually housed there.
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Clarke found that lawyers for the state didn’t back up their claim that some transgender women request housing at men’s prisons because they aren’t ready to “come out as transgender” to other prisoners or their families.
The state also argued that the prison system considers the gender identity of transgender women prisoners “in the context of their own safety, and the safety of other women, including other transgender women, when assessing and determining housing assignments.”
Placing some transgender women in the women’s prison could pose a danger to cisgender women prisoners at Coffee Creek, the state’s lawyers argued.
“ODOC has an important government objective in reducing potential sexual victimization by convicted and potential sexual predators at intake who may not be sincere in their asserted gender identity,” they argued.
The state said it was aware of at least one individual who asserted a transgender woman identity at intake and later recanted saying he only wanted to get put in a women’ s prison to prey on women.
Clarke found the state lacked “supporting documentation 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. 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,” Clarke wrote.
Attorney John Burgess , who represents the plaintiffs, said the judge’s ruling doesn’t require automatic transfers.
“It requires the state to start from a baseline of housing people consistent with their gender identity, while still allowing individualized, safety-based decisions,” he said by email. “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.”
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