9th Circuit Overturns Oregon Order on Transgender Inmate Housing

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit vacated a district-court order that had required Oregon to place transgender women inmates in facilities aligned with their gender identity. The appellate judges, all appointed by former President Donald Trump, ruled unanimously that the lower court had erred in presuming the state’s practice of housing many transgender women in men’s prisons. The decision restores Oregon’s case-by-case assessment approach for inmate placement.

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In April 2025, U.S. Magistrate Judge Mark D. Clarke ordered Oregon to adopt a uniform policy that would house transgender women in women’s prisons after a safety assessment, citing the inmates’ Eighth Amendment claims of heightened risk of sexual and physical assault. Oregon officials had already been conducting individualized reviews, considering gender identity, personal history, and safety concerns. Records indicate that roughly 90 % of transgender women in state custody are housed in men’s facilities, a statistic the state argues reflects varied case-by-case decisions rather than a blanket policy.

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The Oregon Attorney General’s Office welcomed the appellate ruling, stating the court affirmed the state’s “core legal arguments” that placement decisions should be individualized. spokesperson Jenny Hansson added that the court’s language describing transgender people was “harmful” and not reflective of the state’s brief. Attorney John Burgess, representing the plaintiffs, expressed disappointment but noted the firm will continue to pursue claims that current conditions pose a serious risk of assault.

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Portland-based attorney Tara Herivel, who represents transgender inmates, condemned the panel’s language, describing it as overt animus toward trans people and suggesting bias in the decision. She also criticized the Oregon Department of Justice for appealing the earlier district-court order despite its public support for queer rights.

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• “The district court improperly disregarded the overwhelming contrary evidence presented by Defendants in favor of baseless speculation,” — Eric Tung, appellate judge

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• “At most, the record reflects that different officials acted in different ways toward different prisoners at different times,” — Eric Tung, appellate judge

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• “That premise lacks record support and is clearly erroneous,” — Eric Tung, appellate judge

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• “They don’t even try to hide their animus for trans people at the most basic level,” — Tara Herivel, a Portland-based attorney

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