A federal inmate sued the Trump administration on Sunday, challenging an executive order that requires the Bureau of Prisons to house transgender women in U.S. prisons designated for men and to stop providing prisoners with gender-transition medical treatments.
Referred to by the pseudonym Maria Moe in court papers, the prisoner is described as a transgender woman who began transitioning in middle school, started taking feminizing hormones at age 15, and has been housed in a facility designated for women since she was taken into custody. She is represented by two nonprofit legal advocacy groups, the National Center for Lesbian Rights and G.L.B.T.Q. Advocates and Defenders, and by a private law firm, Lowenstein Sandler.
The lawsuit, filed in federal court in Massachusetts, seeks a temporary restraining order to block the new regulations for all transgender prisoners.
It comes a week after President Trump ordered all government agencies to ensure that federally funded institutions recognize people as girls, boys, men or women based solely on their reproductive biology, rather than their gender identity.
The lawsuit challenges the regulations on both procedural and constitutional grounds. The filing alleges that the administration failed to comply with federal laws governing how such regulations must be adopted. And it argues that the order violates prisoners’ rights of equal protection under the Fifth Amendment’s due process clause, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.
A spokesman for the Department of Justice declined to comment on the lawsuit.
Under regulations the Justice Department put in place in 2012, when the prison system determines where an inmate is to be housed, the inmate must be given an individual assessment for risk of sexual victimization that includes transgender status. The new executive order calls for those regulations to be amended “as necessary.”
Supporters of the 2012 regulations point to a landmark 1994 Supreme Court decision that acknowledged the vulnerability of transgender women in male prisons, and to federal data showing that transgender prisoners are 10 times as likely as others to report being sexually victimized. Critics have argued that allowing transgender women, whose birth certificates said they were male, to be housed in women’s prisons threatens the privacy and safety of the other inmates.
Previous administrations have taken different approaches to those regulations. Under the Obama and Biden administrations, the Bureau of Prisons gave more weight to a prisoner’s gender identity when deciding where to house them, compared with the previous Trump administration, which required primary consideration to be given to a prisoner’s sex at birth.
The new lawsuit argues, however, that the blanket restriction in Mr. Trump’s new executive order is enough of a departure from current policy that to implement it, the Justice Department would be required by law to follow a process that involves announcing a proposed change and incorporating public response before going ahead.
The lawsuit says that on Jan. 21, Ms. Moe, who has had no violent disciplinary history, was moved to a “special housing unit” and was told that she was going to be transferred to a men’s prison because of the executive order. On Jan. 23, Ms. Moe’s sex classification was still listed on publicly accessible prison records as “female,” her complaint says, but by Saturday the classification has been changed to “male.”
Both the transfer and the possibility that Ms. Moe will be denied access to hormones amount to punishment that violates the Eighth Amendment, the lawsuit argues. It goes on to allege that the provisions of the order that Ms. Moe is challenging were motivated by animus toward transgender people, which makes them constitutionally suspect under Supreme Court precedents.
Shannon Minter, legal director of the National Center for Lesbian Rights, said the case was sealed shortly after Ms. Moe’s legal team filed it on Sunday night. According to a mirror of the court docket that is available on CourtListener, a nonprofit legal search engine, the case is assigned to U.S. District Judge George O’Toole Jr.
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