9th Circuit Panel Overturns Ruling on Oregon Trans Prisoners

Last month I pointed out that there was an ongoing battle over the status of trans prisoners in Oregon. A pair of trans women prisoners had sued because they were being housed in a male prison. And back in April, Judge Mark D. Clarke ruled in favor of two trans women prisoners. He ordered that prisoners be housed with the gender they identify with absent extenuating circumstances.

But here’s the obvious catch. The two prisoners who filed the lawsuit arguably represented a danger to other inmates if placed in a women’s prison. The class action lawsuit included one plaintiff convicted of rape and another who beat his then-girlfriend to death. Another plaintiff was convicted of molesting a female child. But Judge Clarke apparently didn’t consider any of these circumstances worthy of note.

Last week, a panel from the 9th Circuit reversed Judge Clarke’s decision.

A federal appellate court Thursday threw out a lower court order that had directed the Oregon Department of Corrections to stop housing transgender women in men’s prisons.

The 9th U.S. Circuit Court of Appeals found that U.S. Magistrate Judge Mark D. Clarke improperly concluded that the state corrections department had a default policy of placing all transgender prisoners in men’s prisons without individual evaluations or that officials were “deliberately indifferent” to the safety of transgender women.

“The district court improperly disregarded the overwhelming contrary evidence presented by Defendants in favor of baseless speculation,” 9th Circuit Judge Eric C. Tung wrote for the three-judge panel after hearing argument last month.

Judge Clarke’s decision was based on the idea that prisoners were not being given individual evaluations. He concluded this because 90 percent of prisoners were ending up being housed according to their birth sex. He basically tried to reverse this policy so that the majority would be housed according to their chosen identity. The appeals court said Judge Clarke had no evidence the evaluations were being handled improperly.

Tung wrote that Clarke incorrectly inferred a “default presumption” from the mere fact that more than 90% of transgender women are housed in men’s facilities.

The district judge assumed that a truly individualized process would not have produced such a lopsided outcome, but “no evidence supports the district court’s speculation,” Tung wrote.

In short, there’s no proof of a systemic attempt to harm anyone.

…the appeals court said that the plaintiffs had failed to prove that Oregon had acted with deliberate indifference to transgender inmates. Tung wrote that Clarke had relied on outdated evidence and failed to consider counter arguments presented by the state.

“Nor have Plaintiffs shown that Defendants acted in a uniform way with deliberate indifference toward each of the class members,” Tung wrote. “At most, the record reflects that different officials acted in different ways toward different prisoners at different times.”

Apparently the 9th Circuit’s decision is notable for another reason. The SF Chronicle has devoted an entire article to the language it uses regarding trans people, specifically the use of quotes around “transgender.”

When a federal appeals court ruled Thursday on the placement of transgender women in Oregon state prisons, the results were not surprising from a panel of judges appointed by President Donald Trump: that the inmates should remain in men’s prisons, reversing a lower-court order allowing them to be transferred. What was eye-catching, and perhaps unprecedented, was the way it was written.

Writing for a three-judge panel on the 9th U.S. Circuit Court of Appeals, Judge Eric Tung referred to transgender prisoners seven times in the 18-page decision, and six times he put “transgender” in quotes, apparently suggesting that he considered the status to be invented.

Tung made that even clearer in the first sentence of his opinion, when he described Oregon’s “more than a hundred ‘transgender women’ prison inmates” as “male inmates who claim to be female.”

That is, of course, perfectly clear and accurate language for what is happening in this case. But it was too much for the lawyers, even the ones who opposed the lower court ruling objected to it.

While the court “agreed with our core legal arguments” that Oregon carefully evaluates the needs and proper placement of transgender inmates, “we strongly disagree with the court’s harmful language,” said Jenny Hansson, spokesperson for the state attorney general’s office. “It does not reflect our brief or our values.”

At this point, speaking the truth ought to be the paramount concern, not expressing “values” that confuse the issue. But that’s an argument lawyers in Oregon apparently aren’t ready to hear.

Editor’s Note: The American people overwhelmingly support President Trump’s law and order agenda.

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