Federal Appeals Court Halts Injunction on Transgender Prisoner Placement in Oregon

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued a temporary administrative stay that blocks a U.S. magistrate judge’s April injunction ordering Oregon corrections officials to place incarcerated transgender women in facilities consistent with their gender identity unless a specific security justification is documented. The stay suspends the injunction while the appeals court reviews the case.

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Two transgender women filed a class-action suit in September, alleging sexual abuse, retaliation and violence while housed in male prisons. The plaintiffs secured a preliminary injunction in April that required the Oregon Department of Corrections to presume placement consistent with gender identity, potentially through training, housing transfers or “creative” alternatives. At that time, the magistrate cited statistics showing more than 90 % of Oregon inmates who identify as transgender women were housed in male facilities. Court records indicate nearly 120 individuals have identified as transgender women in Oregon custody, less than 1 % of the state’s total incarcerated population. Oregon Attorney General Dan Rayfield and state attorneys challenged the injunction as “vague and overbroad,” arguing it would compel disclosure of personal health, disciplinary and grievance records without consent.

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They also warned that the order would force the state to release names and gender identities of all transgender inmates, contrary to Oregon law.

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• “We appreciate the Ninth Circuit’s swift action in granting an administrative stay while it considers our motion and look forward to continuing with the appeal,” — Jenny Hansson, a spokesperson for the Oregon Department of Justice

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• “The court also provisionally certified a class of all transgender women in ODOC custody and then ordered the disclosure of their personal information otherwise protected by Oregon law — including their names and gender identities — without their consent to the individual named plaintiffs’ counsel.” — John Burgess, a Portland-based civil rights attorney representing the plaintiffs

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• “A particular inmate might not want to be moved at all, and that would be respected under how the (Clarke) order would operate as well,” — John Burgess, a Portland-based civil rights attorney representing the plaintiffs

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The appeals court has scheduled oral arguments for late August in federal court in Pasadena, California. The outcome will determine whether Oregon must implement the magistrate’s placement requirements or retain its current housing practices for transgender women in custody.

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