Federal judge says Oregon must house trans inmates by gender identity, not Trump’s policy

A federal judge has ordered Oregon to house transgender women prisoners based on gender identity, issuing a ruling that conflicts with President Donald Trump’s executive order requiring that inmates be housed based on sex assigned at birth.

U.S. Magistrate Judge Mark D. Clarke issued a preliminary injunction blocking the placement of transgender women in men’s facilities and ordered the Oregon Department of Corrections to conduct individualized assessments for all transgender women in custody, The Oregonian reports.

While the state agency has an evaluation process in place, Clarke noted that about 90 percent of transgender women housed in state prisons are placed in facilities designated for men. He said Oregon must change the fundamental calibration of its assessments, establishing a presumption that transgender women should be housed according to their gender identity unless an individualized review determines otherwise.

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“It is undisputed in the record before the Court that this default presumption, and their overwhelming placement in men’s prisons, has exposed transgender women inmates to a high risk of violence and sexual assault,” Clarke wrote in his ruling. “The undisputed facts additionally show that ODOC has systemically failed to appropriately address this exposure.”

The matter came before the court as part of a class action lawsuit filed by two transgender women incarcerated in Oregon, who said they were not protected from sexual abuse and violence.

The decision comes in the same month that Oregon settled a lawsuit with a transgender inmate, Zola Zombie, for $295,000 after a judge found she suffered repeated harm while incarcerated in state custody.

But while court rulings in Oregon are moving toward expanded protections for transgender women, that may set up a legal collision with rulings elsewhere. A federal appellate court in Washington, D.C., this month ruled that the Federal Bureau of Prisons could relocate transgender women inmates into men’s prisons.

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While that ruling also left room for individuals to claim risk of personal harm, the Justice Department cast the decision as upholding the administration’s general policy.

“Today’s decision is a win for common sense and biology,” said Justice Department spokesperson Emily Covington in a statement issued after the ruling.

Shortly after the start of Trump’s second term, he issued an executive order directing that transgender women be housed in men’s prisons, rolling back protections for transgender prisoners under the Prison Rape Elimination Act.