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I. Background
The plaintiffs are three male-to-female transgender women in the custody of the Bureau of
Prisons (“BOP”) and housed in female penitentiary facilities. Compl. ¶¶ 3, 7, 10, ECF No. 1.
Plaintiffs allege that they each suffer from gender dysphoria, a condition marked by significant distress and a host of physiological and psychological symptoms when a person lives in a manner conforming to their biological sex. Id. at ¶ 35. For several years before and including their time in BOP custody, the plaintiffs have been prescribed and have generally received hormone therapy to treat their gender dysphoria. Id. ¶¶ 3, 7, 10.
On January 20, 2025, President Donald Trump signed an Executive Order which provides,
in pertinent part:
Sec. 4(a) (the “Transfer Provision”): “The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s detention centers, including through amendment, as necessary, of Part 115.41 of title 28, Code of Federal Regulations and interpretation guidance regarding the Americans with Disabilities Act.
Sec. 4(c) (the “Medication Provision”): “The Attorney General shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
The Plaintiffs Have Established a Likelihood of Success on the Merits of Their Eighth
Amendment Claim
The parties dispute what level of scrutiny applies to the plaintiffs’ equal protection and Eighth Amendment claims. The defendants, relying on Turner v. Safley, argue that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests,” a standard of review that is deferential to the Government as compared to the elevated scrutiny that ordinarily attaches to complaints alleging discrimination based on a suspect classification or the burdening of a fundamental right. 482 U.S. 78, 89 (1987). The plaintiffs retort that later cases, such as Johnson v. California, have applied heightened scrutiny even to suspect classifications arising in the prison context. 543 U.S. 499, 510 (2005) (holding that Turner is inapplicable in a challenge to the California Department of Corrections’ “unwritten policy of racially segregating prisoners”).
There is good reason to doubt that Johnson’s cabining of Turner applies to laws that discriminate among inmates on the basis of sex: Johnson stressed that “[t]he right not to be discriminated against based on one’s race is not susceptible to the logic of Turner” because that right need not “be compromised for the sake of proper prison administration.” Id. By contrast, “the segregation of inmates by sex is unquestionably constitutional” because it is reasonably related to legitimate prison management concerns. Women Prisoners of Dist. of Columbia Dep’t of Corrections v. Dist. of Columbia, 93 F.3d 910, 926 (D.C. Cir. 1996). Indeed, the sole case that the plaintiffs cite where heightened scrutiny was applied to a law discriminating among inmates by sex is Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). The Pitts Court was careful to distinguish Turner, noting that Turner “applies to cases involving regulations that govern the day-to-day operation of prisons and that restrict the exercise of prisoners’ individual rights within prisons,” whereas heightened scrutiny was appropriate in cases “challeng[ing] general budgetary and policy choices made over decades in the give and take of city politics.” Id. at 1453–54. The case at hand appears to more nearly resemble Turner than Pitts.
However, the Court need not reach any firm conclusion about Turner’s effects on the plaintiffs’ equal protection claims, because it is beyond peradventure that the Supreme Court “[has] not used Turner to evaluate Eighth Amendment claims,” which are adjudicated “under the ‘deliberate indifference’ standard, rather than Turner’s ‘reasonably related’ standard.” Johnson, 543 U.S. at 511. Under this standard, as the Court will now explain, the plaintiffs have demonstrated a sufficient likelihood of success to justify a TRO at this stage.
To prove an Eighth Amendment violation based on theories such as failure-to-protect or deliberate indifference, a plaintiff must show that both an objective and subjective element are met: the plaintiff must be confronted with an “objectively intolerable risk of harm,” and prison officials must knowingly or recklessly subject the plaintiff to such a known risk. Farmer v. Brennan, 511 U.S. 825, 839–40, 846 (1994). With respect to the transfer provision, the plaintiffs cited to various government reports and regulations recognizing that transgender persons are at a significantly elevated risk of physical and sexual violence relative to other inmates when housed in a facility corresponding to their biological sex—which the defendants do not dispute. See Compl. ¶ 44. The plaintiffs further claim that placement in a male penitentiary by itself will exacerbate the symptoms of their gender dysphoria, even if they are not subject to physical or sexual violence in their new facility—whether because they will be subject to searches by male correctional officers, made to shower in the company of men, referred to as men, forced to dress as men, or simply because the mere homogenous presence of men will cause uncomfortable dissonance. See Compl. ¶¶ 5, 44. And with respect to the medication provision, the plaintiffs have also provided an affidavit from a physician explaining the numerous and severe symptoms that may arise from failure to treat gender dysmorphia, effects which the defendants likewise do not contest. See generally Aff. of Dr. Frederic Ettner, ¶¶ 7–8, 10, 14–15, Mot. for TRO Ex. 6, ECF No. 13-6. Nor do the defendants dispute the plaintiffs’ allegations that the BOP is subjectively aware that transferring the plaintiffs to a male penitentiary would substantially increase the likelihood of them experiencing this parade of harms; indeed, the government resources and regulations to which the plaintiffs gesture in their complaint strongly suggest the requisite awareness on the part of the BOP.
The defendants’ only substantial retort to these arguments is that the matter is not yet ripe for the Court’s review because the BOP has neither stated which type of facility the plaintiffs will be transferred to, nor formulated its new policy on hormone therapy pursuant to the Executive Order. Neither of these arguments is persuasive. The plain text of the Executive Order affords the BOP no discretion to keep the plaintiffs in a female penitentiary, nor to continue providing hormonal therapy to help them conform physically to their non-birth sex. To reiterate, the plaintiffs’ alleged constitutional harms would arise entirely and narrowly out of their placement in a male penitentiary and the denial of their hormone therapeutics. Though the BOP may have some discretion in formulating new policies with respect to transgender inmates—e.g., whether they should be housed in high- or low-security facilities or in segregated housing—the Executive Order plainly leaves the agency with no discretion with respect to these actions. The Court is therefore satisfied that the plaintiffs’ Eighth Amendment claims are sufficiently “fit . . . for judicial decision” at this time, and that the plaintiffs have adequately demonstrated that “hardship” will flow from “withholding court consideration, ” as to justify pre-enforcement review. Abbott Lab’ ys v. Gardner, 387 U.S. 136, 149 (1967).
It is, of course, possible that further briefing of the constitutional issues at the center of this dispute, or factual discovery, will eventually yield a different outcome. But the plaintiffs, through their largely undisputed factual allegations and proffered affidavits, have met their burden to show a likelihood of success on the merits. Therefore, the first TRO factor is satisfied.