Ninth Circuit overturns order requiring Oregon to house transgender women in women’s prisons

A three-judge panel made up of Trump appointees scolded a magistrate judge for relying on "stale statistics" and engaging in "baseless speculation."(CN) — The Ninth Circuit Court of Appeals on Thursday overturned an injunction that would have automatically placed most transgender women convicted of felonies in Oregon into women’s prisons.The preliminary injunction, issued by a magistrate judge in April, would have sent more than 100 transgender inmates currently housed in men’s facilities to Oregon’s only women’s prison. That included one of the unnamed plaintiffs, known in court documents as J.F., who Circuit Judge Eric Tung wrote “sexually assaulted a woman by lodging a footlong plastic object into that woman’s vagina.”“The district court improperly disregarded the overwhelming contrary evidence presented by defendants in favor of baseless speculation,” Tung, a Donald Trump appointee, wrote in the opinion, scolding the magistrate for relying on “stale statistics” and failing to hold the plaintiffs to their burden of proof.“Rather than hold plaintiffs to their burden, the district court essentially substituted its assumptions for evidence in the record,” he wrote. “That it cannot do.”Tung added: “The district court’s injunction not only displaces the State’s role as prison administrator — it compromises publicsafety too.”The two unnamed plaintiffs in their putative class action claimed that transgender women were sent by default to men’s prisons, exposing them, they said, “to a high risk of violence and sexual assault.” Magistrate Judge Mark Clarke agreed and issued a preliminary injunction requiring the Oregon Department of Corrections, among other things, to place inmates in prisons “consistent with each person’s gender identity, absent a documented and articulable security justification.” Clarke also certified all transgender women inmates as a class.The three-judge panel, whose members were all appointed by President Trump, took a dim view of both Clarke’s order and his reasoning. It found that contrary to the plaintiffs’ claims, Oregon does decide where to place inmates claiming to be transgender or gender fluid on “a case-by-case basis,” first placing them in the infirmary, assessing them within 72 hours of arrival and again within 30 days “to determine whether they meet specific criteria indicating either vulnerability or likelihood of perpetrating sexual abuse.”In his opinion, Tung cited the state’s statistic, which the plaintiffs haven’t disputed, that of the 117 transgender women housed in Oregon prisons, only 26 had requested placement in a women’s prison. Eight are currently housed there. Tung chided the district court for its takeaway that “more than 90% of transgender women are housed in men’s facilities.”“The district court assumed that, if the process were truly individualized, it would not have produced an outcome that was, in the court’s view, this lopsided,” Tung wrote. “But no evidence supports the district court’s speculation about how many transgender inmates ‘should’ have ended up in women’s prisons under an individualized review. Indeed, the record refutes it.”Not only did the panel overturn the preliminary injunction, it vacated the case’s class certification.“Plaintiffs have not shown by a preponderance of the evidence that the class members’ alleged harms, their varying degrees of harm, and the source of their harms are ‘common’ to all class members,” Tung wrote. “At most, the record reflects that different officials acted in different ways toward different prisoners at different times.”He added: “Plaintiffs’ allegations of harm, even assuming its irreparability, reflect individual harm and do not justify class-wide relief.”The panel was rounded out by circuit judges Daniel Collins and Lawrence VanDyke. The case goes back to the lower court, where it can still proceed toward discovery and trial.Neither set of attorneys responded to emails requesting a comment on the ruling.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads