Judge: Ore. transgender inmate must have transgender cellmate or be alone
The decision for the inmate is believed to be a first in Oregon at a men's prison
Everton Bailey Jr.
The Oregonian, Portland, Ore.
UMATILLA, Ore. — A judge this week ordered the state to house a transgender female inmate in a cell separate from male inmates and to protect her from harassment.
The decision for inmate Brandy Hall is believed to be a first in Oregon at a men’s prison, both state officials and Hall’s attorney said.
It paves the way for other transgender inmates to make the same request unless the Oregon Department of Corrections creates an overarching housing policy for transgender and intersex prisoners, said attorney Tara Herivel.
Hall “is a woman in a male prison and I think at a very basic level, that is understood as being extremely dangerous and problematic by most people,” Herivel said.
“But this is an area where as we’re expanding our ideas as a culture of what gender identity is, it’s also really expanding in the legal arena and I think this is a very important first step.”
Hall filed a habeas corpus complaint in June 2018 challenging her incarceration at the Two Rivers Correctional Institution in Umatilla, contending the state was violating her constitutional rights by refusing to address physical and sexual harassment she endured.
She also sought to receive medical care via gender reassignment surgery and to be in a prison that corresponds with her gender identity.
An order Wednesday by Circuit Judge J. Burdette Pratt in Umatilla County calls for Hall to be housed either in a single cell, have a transgender cellmate or one who doesn’t identify as their sex assigned at birth.
The Corrections Department showed a “deliberate indifference” to Hall’s safety by placing her in a cell with male inmates, he said.
Since April, Hall, 34, has been at the Oregon State Correctional Institution in Salem, where she initially had a transgender woman as a cellmate but now has no cellmate. She first entered Two Rivers in 2009 and has had male cellmates.
Hall was convicted of sex crimes in 2007. She transitioned while in prison. Her earliest release date is in May 2021.
Hall was diagnosed with gender dysphoria, a condition when people identify as a gender different from the one they were assigned at birth.
Hall has presented as a woman since 2014 and has been on hormone therapy since 2016, according to court records.
One of the treatments for gender dysphoria is gender reassignment surgery, Hall’s complaint said. She was approved for the surgery
by a corrections review committee last September, but the surgery hasn’t been arranged.
The judge said corrections officials “must do everything within their ability” to stop other inmates from verbally or sexually harassing Hall and to prevent staff from doing the same.
But Pratt also found that Hall didn’t prove the Corrections Department violated her constitutional rights. He stopped short of overturning the state’s decision to deny Hall’s request to be transferred to the Coffee Creek Correctional Facility, the state’s only women’s prison.
The judge determined that prison officials weren’t indifferent to her safety in that instance because a Corrections Department committee that addresses the needs of transgender and intersex inmates considered her request and factored in Hall’s 2007 criminal convictions, which included sexual abuse of girls.
Pratt said Hall can make another request for a transfer to Coffee Creek in the future.
Hall’s case is similar to that of another transgender woman, Michalle Wright, who was transferred to Coffee Creek from the Oregon State Correctional Institution in January 2018.
The transfer was part of a settlement of a federal lawsuit filed by Wright arguing the state had denied her essential medical care, subjected her to harassment by corrections officers and denied her requests to be moved to Coffee Creek.
The settlement led the state to make some policy changes, including providing inmates with hormone therapy and access to doctors with experience treating transgender people.
But the state has no policy to automatically house transgender women prisoners at Coffee Creek and makes decisions case by case.
The judge’s order in Hall’s case said Wright’s settlement “did not provide a written and incorporated basis for requiring” the Corrections Department to move Hall to Coffee Creek.
Hall said she plans to continue pursuing a transfer to Coffee Creek.
“I feel their reluctance as a whole in DOC to change is because they run on an old system that hasn’t dealt with trans inmates until recently,” Hall said. “I would assume that they just feel it is so much work to redo all these rules that they would rather not do it.”
She said she’s found the LGBT community at the Oregon State Correctional Institution more supportive than at Two Rivers, but she still runs into challenges.
For instance, she said, despite legally changing her name, her prison ID card lists her name and gender at the time of her arrest and she must answer to that name when prison staff members use it.
Jennifer Black, a corrections spokeswoman, said the department is pleased the judge found that the state didn’t violate Hall’s rights by denying her transfer.
The department is developing more comprehensive policies to address the safety, health care and housing of transgender people in custody, she said.
It assesses, reviews and manages individual cases of transgender or intersex inmates “in a respectful manner, considering each inmate’s individual circumstances, including the person’s physical sexual characteristics, gender identification, physical presentation, behavior, and programming needs,” she said.
The state has 77 people in prison custody who identify as either transgender or intersex, people born with genitalia, chromosomes or reproductive organs that don’t fit typical definitions for males or females at birth. Twelve are housed in the Oregon State Correctional Institution and eight at Two Rivers.
Herivel said while Oregon has made some improvements, other states are doing better. She cited Connecticut, where inmates by law are housed based on their gender identity.
“It shouldn’t have to take a large-scale problem to occur for the system to change,” she said.
©2019 The Oregonian (Portland, Ore.)