Judges on both coasts weigh transgender prisoners’ rights as Trump targets prison policies

Judges on both U.S. coasts will determine where transgender inmates are housed and what protections from discriminatory treatment they still enjoy. The cases are unfolding as transgender inmates across the nation argue that being housed in prisons inconsistent with their gender identity constitutes cruel and unusual punishment.

The Washington state Supreme Court this week heard arguments from Amber Kim, a trans woman, who claims the state violated her constitutional rights by transferring her to a men’s prison. The transfer reversed a 2021 decision to move Kim from a men’s facility to a women’s prison after the state enacted a policy guaranteeing incarcerated people access to gender-affirming care, according to The Seattle Times. The state is now one of several under investigation by the Trump administration for housing transgender women in female corrections facilities.

Related: Court rules Trump can’t move transgender women to men’s prisons

Meanwhile, a federal judge in Florida said a trial can proceed regarding the treatment of transgender inmates housed in men’s facilities. However, Chief U.S. District Judge Allen Winsor said the court won’t hear arguments over whether those inmates must have access to hormone therapy and will consider only social accommodations, such as haircuts and grooming standards, citing jurisdictional issues.

Those developments come after a judge in Washington, D.C., this month said the federal Bureau of Prisons must continue providing gender dysphoria medication to transgender inmates, at least for now. U.S. District Judge Royce Lamberth issued an injunction blocking a Trump administration policy that would stop providing hormone therapy to adult inmates.

The same D.C. judge also ruled this month that the Trump administration cannot move forward right now with plans to transfer 14 trans women into a men’s facility. He said that the inmates challenging the move would likely prevail with an argument that such a transfer would constitute cruel and unusual punishment.

That federal case sets a backdrop for the case in Washington. Kim has remained in solitary confinement since her transfer to a male facility, choosing isolation out of fear for her personal safety. She also argues that returning her to a men’s prison constitutes cruel and unusual punishment. The agency transferred her back to a men’s facility after she had sex with a cellmate, something her attorney argued was a “routine infraction” that could have been addressed within the prison rather than by transferring her to a men’s facility and putting her safety at risk.

Related: How Donald Trump transformed the federal government’s treatment of LGBTQ+ Americans

Deputy Solicitor General Emma Grunberg said the state still found the incident to be “problematic sexual activity,” even though there has been no allegation that the encounter was not consensual. But Grunberg also said housing decisions are reviewed routinely.

When the case was argued before the state Supreme Court, Justice G. Helen Whitener questioned why the state handled the matter in a way it would never consider for a cisgender inmate. “Why is DOC’s treatment of Ms. Kim not considered arbitrary?” Whitener asked.

Harmeet Dhillon, who runs the Justice Department’s Civil Rights Division in the Trump administration, sent a letter in May to Washington Gov. Bob Ferguson arguing that the housing of transgender women in women’s facilities violates the rights of cisgender female inmates and that the state “has failed to protect female prisoners from sexual and physical violence, harassment, voyeurism, and intimidation from male prisoners who identify as female.”

The Washington Supreme Court likely will not issue its ruling for months.

The Florida case before Winsor will begin on July 6. The judge said the trial won’t address hormone therapy because provisions have allowed the inmates suing to maintain access to care, even though the written policy still prohibits it. He will consider whether the plaintiffs, who include transgender men and transgender women, must be afforded social accommodations, including “clothing and grooming accommodations.”

Related: Federal judge again blocks Trump from moving trans women into men’s prisons

He also noted that in September 2024, the Florida Department of Corrections changed its policy and stopped providing transgender female inmates with access to makeup, bras, and other accommodations, and stopped allowing them to wear long hair. In allowing the case to go forward, Winsor made clear in an order the threshold plaintiffs must reach to be successful in the case, including proving that Florida officials acted with “subjective recklessness as used in the criminal law,” and knew enforcing the new policy would put inmates “at substantial risk of serious harm.”

“This is a heavy burden, but the ‘whole point’ of the subjective requirement is ‘to isolate those who inflict punishment within the meaning of the Eighth Amendment,’” Winsor wrote.