Federal appeals court blocks restrictions on placement of trans women in Oregon prisons 

Oregon does not need to presume transgender women should be housed in women’s prisons and may continue to make case-by-case placement decisions that have allowed most of them to remain in custody with men, a federal appeals court ruled.  

The case highlighted the tension some legal advocates say faces pro-LGBTQ+ Democratic states who want to support inclusive policies while maintaining the safety of all inmates. It began with a September 2025 lawsuit against the Oregon Department of Corrections in which two trans inmates alleged that Oregon’s prison system failed to house them with other women and subjected them to consistent sexual abuse, retaliation and violence during their time in custody with men.

But in a unanimous 18-page decision last week, a panel of three Trump-appointed judges on the 9th Circuit Court of Appeals removed restrictions U.S. Magistrate Judge Mark D. Clarke put in place in April and largely reaffirmed in July. At the time, Clarke issued a preliminary injunction ordering that the Oregon Department of Corrections provide a “a presumption of placement consistent with each woman’s gender identity absent a documented and articulable security justification,” which could be implemented through training, housing transfers and “creative” alternatives.

Circuit Judge Eric Tung began the decision by referring to trans women in quotation marks and then describing them in parentheses as “male inmates who claim to be female.” He also took aim at Clarke’s reliance on state corrections data showing that eight of the nearly 120 individuals who have identified as trans women to correction officials are housed at the state’s only women’s prison. Fewer than 30 of those individuals have requested transfers to women’s prison, according to the data. 

“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.”

ODOJ calls ruling’s language ‘harmful’ 

Oregon’s attorneys had appealed Clarke’s ruling after arguing that not all trans women in custody want to be transferred to women’s prisons. They also pointed to security concerns over individual instances where inmates who identified as trans women posed security risks due to convictions for crimes against women. 

Although they didn’t claim that transgender women are more likely to be a danger in these settings, some critics saw echoes of the Trump administration’s push to investigate states for allowing trans women to be placed in women’s prisons.

“The ruling agreed that decisions about the appropriate placement for an individual should be addressed case by case — taking into account a wide range of considerations — rather than by mandating new across-the-board policies,” Jenny Hansson, a spokesperson for the Oregon Department of Justice, said in a statement. “While we agree with the outcome of the case, we strongly disagree with the court’s harmful language. It does not reflect our brief or our values.”

The new ruling also removed the class-action status Clarke granted the plaintiffs in April to represent all transgender women in Oregon’s correctional facilities. The case will now proceed in district court where the two plaintiffs can still pursue their allegations against the state.

The Portland-based civil rights attorney John Burgess did not immediately respond to a request for comment on behalf of the plaintiffs, who are identified by initials in court filings. In statements to other news outlets, he has said that neither party disputed the identity of trans people. 

“We continue to believe that the current conditions place transgender women in ODOC custody at a serious risk of sexual and physical assault, and we intend to continue pursuing our clients’ claims,” he said in a statement. “We believe the evidence developed as the case proceeds will support those claims.”