Several trans women incarcerated in federal women’s facilities have been moved into isolation and notified they will be transferred to men’s facilities, advocates told HuffPost. The women were moved in the days following President Donald Trump’s signing of a sweeping executive order that redefines sex and excludes transgender people from sex discrimination protections.
The order, signed during Trump’s first few hours in office, declared there are only “two sexes, male and female” and called on government officials to ensure that no transgender women are in women’s detention centers and that no federal funds are used to provide gender-affirming care to incarcerated people.
Openly trans people account for less than 1% of people in federal prisons, according to the Bureau of Prisons, which did not respond to a list of questions from HuffPost. The bureau does not disclose how many trans people are currently incarcerated in prisons that match their gender.
A.D. Lewis, an attorney at the Prison Law Office, a nonprofit law firm that focuses on constitutional protections for trans people, estimates there are fewer than 10 trans women in federal women’s facilities. Lewis and other advocates have been notified that several of them have been placed in segregation and notified they will be transferred to men’s facilities. Some of the women have not been reachable, potentially because they are in solitary confinement without access to communication devices. Trans people in BOP custody have also reported issues accessing hormones, Lewis said.
One of the transgender women who was placed in solitary and notified of transfer to a men’s prison sued the Trump administration on Sunday night— the first known legal challenge to the executive order — alleging that the order put her safety at risk.
The Massachusetts woman at the center of the suit, who is identified as Maria Moe, began medically transitioning when she was 15 and has been housed in a women’s facility since her arrest. The day after Trump signed the executive order, the Bureau of Prisons notified her she would be moved to a men’s facility, according to the suit. By Saturday, BOP reclassified Moe from “female” to “male” in publicly available records, the suit said.
GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights — the organizations representing Moe — alleged that Trump’s definition of sex is “intentionally designed to discriminate against transgender people.”Moe will be “at an extremely high risk of harassment, abuse, violence, and sexual assault,” and her mental health may suffer from losing access to hormone therapy, the groups warned.
The complaint alleges that Moe’s transfer violates constitutional protections granted by the Fifth Amendment’s due process clause and the Eighth Amendment’s prohibition against cruel and unusual punishment. It also argues that Trump’s order failed to comply with federal laws governing changes to rulemaking within the Bureau of Prisons.
“You can’t just wave your hand or sign an executive order to limit or take away these protections,” Richard Saenz, a criminal justice attorney at Lambda Legal, told HuffPost. “My personal fear as an attorney who represents and works with incarcerated people is that this will put so many people in harm’s way. It feels like the president is saying that it is OK to villainize and marginalize specific populations, which is just wrong.”
Although Republican officials have targeted trans people with a record-breaking amount of state legislation, it is particularly difficult to be trans in prisons and detention facilities because of the near-total control the government exercises over the people in its custody — including their housing, access to health care, clothing and jobs, and even their relationships. Trans people face disproportionate rates of incarceration, and once locked up, they are more likely to be victims of violence than cisgender people.
Even before Trump’s executive order, it had been difficult for trans people, regardless of whether they were in state or federal custody, to access gender-affirming care and housing. On the state level, some prison systems refuse to acknowledge the existence of trans people. States including Florida and Missouri have enacted policies that bar trans people in prisons from not only receiving gender-affirming care but also clothing and haircuts that match their gender identity. Some progressive states technically allow gender-affirming care and housing but on a case-by-case basis. Access often requires individuals to spend years navigating a bureaucratic process or pursuing litigation.
The Prison Rape Elimination Act, a law enacted in 2003 but not implemented until 2012, required prison officials to conduct housing reviews for incarcerated trans people at least twice a year to determine, on a case-by-case basis, where they should be imprisoned. The law states that the individual’s views on their own safety should “be given serious consideration,” but it does not provide meaningful guidance on how housing decisions should be made.
In 2017, the Obama administration issued guidance that echoed the PREA housing language and stated that “hormone or other medical treatment may be provided after an individualized assessment” by the prison’s medical staff. The Trump administration rolled back that guidance the following year, directing the Bureau of Prisons to use “biological sex” to make housing decisions and adding the word “necessary” to the section on medical treatment. The Biden administration reinstated the Obama guidelines. As of Monday, BOP had not posted any updated guidance on its website.
“We don’t have a sex-segregated system; we have a genital-based segregation system.”
– A.D. Lewis, an attorney at the Prison Law Office
Even under Presidents Barack Obama and Joe Biden, a very small number of incarcerated trans people lived in gender-congruent housing, Lewis said. Advocates estimate there are 50 to 100 trans people in gender-congruent housing nationwide, including state and federal prisons and county jails, he said.
“We don’t have a sex-segregated system; we have a genital-based segregation system,” Lewis said.
Trump’s new order endangers the lives of trans women in federal prisons by throwing this patchwork of scant protections into chaos, according to criminal defense lawyers.
“From the immediate nature of the order to its lack of understanding about the prison system itself, the order appears designed to spawn pandemonium,” Sonya Pfeiffer, an attorney who co-chairs the Women in Criminal Defense Committee, told HuffPost in a written statement.
“A prison transfer is not a simple process of piling people into a van and driving them to another facility. The process takes days, if not weeks. And once a transfer is initiated, the person who is moving to another facility is put into segregation or solitary confinement.”
Prolonged solitary confinement is recognized by the United Nations as a form of torture.
In 1976, the U.S. Supreme Court held that the Eighth Amendment requires prison authorities to provide adequate medical care for prisoners’ serious medical conditions. To prove a constitutional violation, individuals have to show they have a serious medical need and that prison officials demonstrated “deliberate indifference” to that need.
Over the past 30 years, federal courts in nearly every judicial circuit have recognized that for trans people, gender-affirming treatment is a “serious medical need,” Lewis said. Blanket bans on gender-affirming medical care and so-called “freeze-frame policies” — which allow hormone therapy only for trans people who were already receiving it before entering prison — have been struck down by federal courts, although two circuit courts of appeal have held that blanket bans do not violate the Constitution. The issue has not yet made its way to the Supreme Court.
Although gender-congruent housing in detention facilities is still a developing area of law, several incarcerated trans people, including some in BOP custody, have secured gender-congruent housing through litigation, Lewis said.
The executive order represents an escalation in Trump’s attack on the rights of trans people, singling out a small number of individuals in particularly vulnerable settings for devastating consequences.
The order comes months after a fierce election season during which the Trump campaign spent millions on advertising to attack former Vice President Kamala Harris for supporting access to gender-affirming medical care for incarcerated transgender people, which is protected by the Constitution. In total, Republicans spent at least $215 million on ads portraying trans people as a threat to society.
In campaign stump speeches, Trump repeatedly pushed false claims about children getting “operations” at school without parental permission and vowed to “keep men out of women’s sports.”
The executive order is one of several actions taken by Trump that appear to be lifted directly from Project 2025, the conservative policy blueprint compiled by the Heritage Foundation for use in Trump’s second term. The document, which Trump repeatedly tried to distance himself from during the campaign, claims there “are only two sexes” and calls for rescinding regulations prohibiting discrimination on the basis of gender identity or transgender status.
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Trump is expected to sign another executive order to bar trans people from enlisting in the military and bar coverage of transition-related medical care for current service members.