Under the reality-denying concept of “transgender,” which was enshrined in federal regulation in 2012, more and more incarcerated men have been permitted to opt into women’s prisons based on self-identification. There have been some legal challenges to this, but, until now, these efforts have not yet been successful.
In the wake of President Trump’s Executive Order (EO) on Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, two women incarcerated at the sole women’s medical center in the federal Bureau of Prisons (BOP) system filed suit. This EO included a provision requiring federal agencies to “ensure that males are not detained in women’s prisons or housed in women’s detention centers.” Due to the DC district court issuing Preliminary Injunctions on behalf of male inmates demanding to continue to be housed in women’s prison, the EO has not been implemented.
In their Complaint, the two female inmates, Rhonda Fleming and Miriam Crystal Herrera, identified at least nine men housed in their facility, FMC Carswell. Citing to court decisions and media reports, the women asserted that among those men were at least four sex offenders (“a sexual offender convicted of attempted enticement to engage in sexual activity” “a repeat sexual offender whose prior victims include a nine-year-old boy and seventeen-year-old girl” “a convicted sex offender” “raped a seventy-five-year-old woman and pleaded guilty to kidnapping and indecent acts with a child”); a murderer; and a violent, armed bank robber whose goal was to overthrow the United States government on behalf of the “Aryan Republican Army.”
The women’s Complaint includes photographs of some of the men.
The women describe they understood that only one of the men had undergone genital surgery and they assert specific ongoing activity by the men such as being stared at while in the showers; being subjected to exhibitionism and to verbal, physical and sexual assault. They claim that one man has “sex with a woman who reportedly suffers from mental illness” and another “continues to sexually harass female inmates and officers.” They also allege that the men (and some staff sympathetic to the men) target women who object to being housed with them. The targeting includes physical intimidation, “accidental” unwanted bodily contact, false accusations of misconduct and verbal threats.
In their Complaint the women sought, among other relief, Declaratory Judgment that the federal regulation permitting men to be housed with women based on “transgender” status violates the Fourth, Fifth, and Eighth Amendments to the United States Constitution. Being incarcerated with men infringes on their right to bodily privacy, subjects them to cruel and unusual punishment, and violates their right to freely exercise their religion.
They also sought a Temporary Restraining Order (TRO) preventing BOP from “housing any male inmate (meaning any person who is biologically male, regardless of gender identity) within the general population of any housing unit where either Plaintiff is presently or will be confined” and from “permitting any male inmate to enter or remain in any female-only privacy area (including showers, restrooms, changing areas, or dormitory spaces) to which either Plaintiff has access, so that Plaintiffs are not exposed to male inmates while showering, toileting, dressing or sleeping.”
A Texas district court judge found the women met their burden of proof and were entitled to a TRO granting them those two provisions of relief.
The judge ordered a hearing in December on BOP’s defense that the women had not exhausted administrative relief as required under Prison Litigation Reform Act of 1995. This is also a defense BOP raised in the claims filed by the male inmates in DC district court. The court’s preliminary injunctions there in favor of the men are currently under appellate review.
Amanda Stulman is a Senior Researcher and Attorney at the Legal Insurrection Foundation
CLICK HERE FOR FULL VERSION OF THIS STORY
