Oregon resists court order for housing trans prisoners amid federal pressure

Editor’s note: This story discusses sexual assault. If you’ve been sexually assaulted, you can call the Rape, Abuse & Incest National Network helpline at 800-656-4673 or chat with someone from RAINN online at https://hotline.rainn.org/online for support.

As the Trump administration investigates states for incarcerating transgender women in women’s prisons, Oregon attorneys are opposing a recent federal court order that could lead to more trans women being housed in the state’s only women’s prison.

Over the past few weeks, lawyers representing two incarcerated transgender women and the Oregon Department of Corrections have been filing dueling court motions after an initial April ruling by U.S. Magistrate Judge Mark D. Clarke. Clarke granted class action status and a preliminary injunction in favor of the women, who alleged that the Oregon Department of Corrections failed to house them with other women and subjected them to consistent sexual abuse, retaliation and violence during their time in custody with men. 

Clarke also mandated that the agency 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.

“The court is not naive: housing someone with a complicated status of both ‘vulnerable’ and ‘aggressive’ is extremely challenging,” Clarke wrote in his 38-page order. “However, the continued placement of a victimized transgender woman in a men’s prison is undeniably different treatment than the treatment received by cisgender women, whose placement in a men’s facility is never an option, regardless of their history of violence or sexual aggression.”

State attorneys, however, didn’t back down. They filed a May motion for Clarke to reconsider or clarify his order, arguing that the relief sought by the plaintiffs could interfere with existing state policies to the “detriment” of incarcerated Oregonians. Attorneys for the plaintiffs, meanwhile, accused the state of repeating unsuccessful legal arguments in a court filing last week. 

The Oregon Justice Department’s response was an unusual position from one of the nation’s most LGBTQ+-friendly states. But it comes as the U.S. Department of Justice in recent months launched investigations into states including Maine, Washington and California over what Assistant U.S. Attorney General Harmeet K. Dhillon called “the dangerous national trend of housing men in women’s prisons” and “violations of women’s constitutional rights.”

The Trump administration has sought to allow male guards in federal prison to enforce pat-down searches on trans women and prohibit incarcerated people from buying gender-affirming clothing or taking hormones.

Abby Greenfield, a Hillsboro-based prison civil rights attorney representing the plaintiffs, said the suggestion her plaintiffs are seeking to harm women is “frequently a red herring” raised during national political debates over the rights of transgender Americans. She said the Oregon Department of Corrections needs to take a more needs-based approach in its placement considerations for trans women given the abuse they face in corrections facilities.

“If something happens in the future with the Trump administration, then that’s something that we’ll tackle when it gets there,” she told the Capital Chronicle. “But failing to act for fear of this administration doing something means the harm continues.”

State officials say they are eager to defend Oregon’s protections for transgender people in prisons, but that they must ensure the safety of all incarcerated people through individual assessments determining where they may be placed.

Attorneys for the state, for instance, have pointed to one plaintiff’s conviction for a sex offense against a disabled woman as a reason for why she was not offered a transfer. The lawsuit uses initials to refer to the plaintiffs, and the Capital Chronicle was not able to independently verify their identities or conviction records.

Jenny Hansson, a spokesperson for the Oregon Department of Justice, said that “the contrast between the federal government’s policy and Oregon’s couldn’t be clearer.”

“The federal government has a blanket policy that only considers the sex that an inmate was assigned at birth,” she wrote in a statement. “Oregon’s policy is individualized, based on a variety of carefully considered factors, and is built around protecting and supporting the health and safety of transgender (adults in custody) and their fellow inmates.”

‘Thorough, individualized’ process rarely used

Federal regulations and law prohibit states from offering segregated housing to incarcerated transgender people, some of whom have reported not wanting to come out or to be placed in a women’s facility. Research shows that incarcerated trans people are more likely to face sexual assault in custody.

But the question of how best to support and house transgender people in prisons has for years been a topic of controversy in American culture, with a particular focus on placements in women’s prisons.

The 2013 Netflix series “Orange is the New Black,” for instance, featured one incarcerated trans woman who struggled with shifting access to hormones and mistreatment from prison officials. Ads from the 2024 Trump campaign targeting then-Vice President Kamala Harris sought to target her support for incarcerated peoples’ gender-related surgeries, though the first iteration of the Trump’s administration also offered such procedures.

Oregon hasn’t gone as far as other states such as California, which enshrined a specific law allowing for prisoners to petition for rehousing, But state corrections officials describe having developed a policy that has allowed them to assess whether incarcerated transgender women who share their identity with prison staff are a potential threat to others or more vulnerable in male or female prisons. That means assessing how someone identifies, their safety, the safety of others, their behavior, their medical history and their mental health, according to court filings.

But the state has rarely used that process to transfer incarcerated people, according to corrections data cited in the lawsuit. More than 90% of inmates who identify as transgender women are housed in male prisons, a statistic that state officials largely attribute to individuals who have not come out yet or who do not want to transfer. 

Nearly 120 people have identified as transgender women to prison officials in Oregon, representing less than 1% of the state’s total incarcerated population. Of those, eight are currently housed at the Wilsonville-based Coffee Creek Correctional Facility, the state’s only women’s prison. In total, 26 individuals have requested transfers. 

‘How far ahead are you?’

Key to the lawsuit against Oregon corrections officials has been the experiences of abuse reported by two transgender women incarcerated in the state. 

They describe being painted as an aggressor in the face of retaliation for reporting violent experiences of sexual assault and physical abuse by their male peers in prison who knew about their identities. One of the women, referred to in court filings as “J.F.,” described an assault by a male cellmate that caused a fractured orbital socket and permanent damage to her tear duct. 

“Instead of being protected and moved to a safe facility, J.F. was punished. She was placed in solitary confinement, denied access to appropriate medical care, refused gender-affirming accommodations, and subjected to retaliatory discipline for asserting her rights,” the original September lawsuit reads. “ODOC never conducted a meaningful review of her safety needs, never flagged her as a vulnerable inmate, and never offered to move her to Coffee Creek Correctional Facility or other protective placement.”

Shawn Meerkamper, managing attorney with the California-based Transgender Law Center, said it’s important for there to not be a “blanket” rule ensuring transgender women are all placed in women’s prisons in Oregon. But they saw parallels in the dispute with the national political fallout facing Harris during the 2024 election, where she faced attacks for overseeing California’s position as the first state in the nation to provide gender-affirming surgical procedures to incarcerated people. 

State attorneys general often have high political aspirations, Meerkamper said, and “it’s hard to imagine that progressive politicians don’t have that in mind when this issue hits their desks.” Some Oregon political observers have speculated that Oregon Attorney General Dan Rayfield, for instance, is positioning himself as an adversary to the Trump administration in hopes of seeking higher office.

“These progressive states, when they try to absolve themselves by saying we’re a leader on these issues, I think that they really need to stop and consider, really, truly, How far ahead are you? How far ahead are you compared to whatever state is in last place?” Meerkamper said. “I guarantee you, it’s not as much as some would make it out to be.”