It’s day 94 of the Trump Administration. There are still men in women’s prison
Male inmates housed in women’s prisons based on their claimed transgender identity have intimidated, harassed, raped and impregnated vulnerable female prisoners. Female prisoners are uniquely vulnerable to harm from predatory men, and not only because of differences in physical strength and because of their confinement. According to the federal Bureau of Prisons, 48.5% of male inmates who identify as transgender are sex offenders (compared to 13.5% of the general federal prison population and 4.7% of incarcerated women who identify as transgender). Over 70% of federal male inmates who identify as transgender are considered high or medium security risk, compared to only 1.11% of incarcerated women who identify as “transgender”.
Naturally, advocates for the rights of incarcerated women cheered when President Trump signed Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The EO fulfilled a campaign promise to undo a wide range of federal policies that elevate gender identity over sex, ordering an end to policies that allow men who claim a transgender identity to infiltrate federal female only rape shelters, “intimate spaces,” and prisons.
Concerning federal prisons, the EO requires that males not be detained “in women's prisons or housed in women's detention centers, including through amendment, as necessary, of Part 115.41 of title 28, Code of Federal Regulations.” The reference is to a provision of the Prison Rape Elimination Act (PREA) standards that requires screening of inmates during prison intake and transfer “for their risk of being sexually abused by other inmates or sexually abusive toward other inmates.” This reference acknowledges what recent events have borne out: the EO, by itself, is not enough to secure the “dignity, safety, and well-being” of incarcerated women.
The PREA statute was originally passed primarily in response to the issue of inmate-on-inmate rape in men’s prisons. At the time the legislation was passed, nobody conceived that men would be housed in women’s prisons, let alone that PREA might be used to uphold that practice. By the time regulations were passed to implement PREA, the possibility of cross-sex housing was tucked into the screening section. Congress would not have anticipated this. One thing is true, though: even though the issue of rape of incarcerated women has unfortunately become more salient, it appears that concern still largely focuses around the protection of incarcerated women. The PREA standards themselves must be updated to protect these women.
Legal challenges
Almost immediately, the Executive Order faced multiple court challenges. So far, eighteen trans-identified male inmates have brought three separate lawsuits seeking temporary restraining orders and/or preliminary injunctions against the government. Each of these cases has succeeded at the district court level, resulting in orders blocking the transfer of sixteen male plaintiffs and the return of two male plaintiffs to women’s prison.
According to Department of Justice court filings, there are approximately 1,506 are trans-identified males in federal prisons, of whom sixteen were housed in female institutions on the date the government filed its response. This means that the courts’ orders block removal of all men housed in women’s federal prisons. And while the courts did not decide the male inmates’ Eight Amendment claim, in granting the TROs and preliminary injunctions the courts found that plaintiffs were likely to succeed with their argument that the removal of men from women’s prisons amounts to cruel and unusual punishment of those men.
Status of E.O. 14168
The Trump Administration has appealed the orders in two of these cases covering seventeen of the trans-identified male inmates. In the third case, Moe v. Trump, after granting preliminary relief the court sent the case to the district court in the district in which the plaintiff was incarcerated. But because the information was under seal to protect the plaintiff’s identity, the opinion did not identify which district that is. As a consequence, advocates for incarcerated women cannot identify incarcerated women to intervene in this case on the side of the government, depriving incarcerated women of the right to be heard when it is their rights and safety that are at stake.
For trans-identified federal inmates who did not join the lawsuits, the litigation may have no consequences. In each of the three cases, the orders grant relief only to the plaintiffs, but left the Executive Order in place. This means that, should any of the other 1500+ trans-identifying males in federal custody seek transfer to women’s prisons, Bureau of Prison officials would have to deny them.
The Need for PREA Reform
Of course, male inmates denied transfer to women’s prisons are likely to sue, seeking relief on the same grounds that have so far been successful. And just as Trump rescinded Biden’s executive orders, in less than four years a new administration may rescind EO 14168 and replace it with a new EO enshrining gender identity.
Moreover, the executive order has no effect on state prisons, where most violent criminals are incarcerated. In 2022, there were approximately 1,039,500 men incarcerated in state prisons in the United States, while 146,100 men were incarcerated in federal prisons. In sports and pediatric “gender” medicine, the Trump Administration has conditioned funding to state institutions and hospitals on eradicating policies based in gender ideology, but this is not the case in state-run women’s prisons. States are free to continue to move men into women’s prison populations based on laws like California’s SB 132, which have moved fully intact male sex offenders into women’s facilities, with entirely predictable results.
The Executive order seems to recognize its own limitations, directing the Attorney General and Secretary of Homeland Security to “as necessary” amend screening requirements in the PREA standards. Existing PREA standards for screening were written to prevent rape of male inmates by other male inmates. They do not contemplate the unique threats to incarcerated women from men—and do not bar males or even male sex offenders from being housed in women’s facilities.
To date, no changes to the PREA standards have been formally proposed. Given the litigation challenges to the executive order, and the fact that it doesn’t apply to state prisons, regulatory changes will be necessary to protect women’s rights to single-sex prisons. Until then, the right of incarcerated women to be free from the cruel and unusual punishment of being incarcerated with male inmates remains under threat.
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