Three incarcerated transgender women sued the Trump administration on Thursday, alleging that the president’s executive order directing government officials to move them to men’s prisons and cut off their access to health care violates the U.S. Constitution and federal law.
The women, identified as Jane Doe, Mary Doe and Sara Doe, will face a high risk of harassment, abuse, violence and sexual assault if moved to men’s facilities, they wrote in their complaint. When Mary was previously incarcerated in men’s BOP facilities, she was raped multiple times, according to the complaint.
If the plaintiffs lose access to their hormone therapy and other care, they are likely to experience worsening gender dysphoria — which increases the risk of suicidality and depression — as well as other adverse health outcomes, the complaint alleged.
Openly transgender people account for less than 1% of people in federal prisons, according to Bureau of Prisons data accessed on Jan. 27. (BOP no longer publishes the number of trans people behind bars; the agency’s stats online now refer only to “inmate sex.”)
In the days following Trump’s executive order, lawyers and advocates told HuffPost that trans women in BOP facilities throughout the country were being placed in solitary confinement and notified that they would soon be transferred to men’s facilities. The United Nations recognizes prolonged solitary confinement as a form of torture.
On Jan. 24, Jane and Mary were removed from the general population and placed in segregation with other transgender women, according to the complaint. BOP officials told them their transfer paperwork had already been processed and that they would be moved no later than Jan. 30.
Sara was placed in solitary on Jan. 25 and was told that her cell was being cleaned out, in anticipation of her transfer. Her mother and sister emailed prison officials, pleading for them to reconsider.
“Sending her to an all-male prison will be the end of her. No one deserves this. There needs to be another way, we beg for your sympathy,” they wrote. “She will get sexually assaulted and even possibly killed for being who she is. … This could mean life or death and she has not received a death penalty as her sentence.”
In response, BOP officials said they could not house Sara at a women’s facility because of the executive order.
On Jan. 26, a transgender woman incarcerated in Massachusetts filed the first known legal challenge to Trump’s executive order. Shortly after, the plaintiff, identified as Maria Moe, as well as Jane, Mary and Sara, were returned to general population housing. The day the Massachusetts lawsuit was filed, the federal judge overseeing the case temporarily blocked Moe from being transferred to a men’s facility.
Similarly to the first suit, this case alleges that the executive order 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.
The Prison Rape Elimination Act, a law enacted in 2003 and implemented in 2012, requires 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.
Transferring transgender individuals without conducting an individualized assessment violates federal law, the women’s suit alleges.
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As of earlier this week, the BOP website included the 2022 Transgender Offender Manual, which echoed the PREA language. By Friday, the BOP had taken its policies and forms offline. “This content is temporarily unavailable as we implement the Executive Order on ’Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the website read.