Federal appeals court blocks ruling for housing trans women in Oregon prisons 

“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, said in a statement. 

Clarke had ruled in April that Oregon’s Department of Corrections must provide “a presumption of placement consistent with each woman’s gender identity absent a documented and articulable security justification,” which could be implemented through training, housing transfers and “creative” alternatives. 

At the time, Clarke pointed to statistics showing more than 90% of Oregon inmates who identify as transgender women are housed in male prisons. State officials defended that statistic as a result of not everyone being ready to come out or wanting placement in a women’s prison. Nearly 120 people have identified as transgender women to prison officials in Oregon, representing less than 1% of the state’s total incarcerated population, court records show. 

Oregon Attorney General Dan Rayfield and other state attorneys, meanwhile, resisted Clarke’s order on the grounds that it was “vague and overbroad” and required the state to provide an unredacted list of all transgender adults in custody for records about their health, disciplinary records and grievances “without their consent.” 

Oregon attorneys have also pointed to some instances where incarcerated trans women posed security threats due to previous crimes against women, though they have not alleged that trans women are statistically more likely to be security threats in women’s prisons. 

“The court issued a mandatory preliminary injunction under the Eighth Amendment that micromanages the state’s administration of its prison system for transgender women (adults in custody) under terms both vague and overbroad,” Oregon attorneys wrote in an appeal filing. “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, told the Capital Chronicle he believes the 9th Circuit Court of Appeals should uphold Clarke’s order. He said the state’s concerns about personal information are “misguided” because parties often exchange information through protective orders during litigation.

He added that Clarke’s order offered options such as voluntary placements in units for trans people or gender-nonconforming individuals, placement at the women’s prison, or a non-punitive form of “protective custody,” he said. While Oregon attorneys have argued that those separate units go against the federal Prison Rape Elimination Act, the statute offers exemptions for “a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.”

“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,” Burgess said. “I wouldn’t concede at this point that the court order would mandate that any particular person would be moved to Coffee Creek.”

The order stops proceedings in front of Clarke and his injunction until the appeals court can weigh in on the case. Oral arguments are set for Aug. 27 in federal court in Pasadena, California. 

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