A federal appeals court panel appeared skeptical Friday of the Trump administration‘s bid to move biologically male inmates who identify as women to male prisons in accordance with a Day One executive order from the president.
The lawsuit was brought by a group of transgender prisoners, all biological males who identify as women, shortly after President Donald Trump issued his Jan. 20 order calling on the Bureau of Prisons to ensure biological male inmates were housed in male prisons. Judge Royce Lamberth of the U.S. District Court for the District of Columbia granted a preliminary injunction earlier this year preventing the BOP from moving the group of anonymous prisoners to male facilities, an order the administration argued before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on Friday should be reversed.
“The president issued Executive Order 14168 with the goal of protecting the dignity, well-being, and safety of women, including by ensuring that males do not invade the intimate, single sex spaces of women,” DOJ lawyer Benjamin Hayes said in the Washington, D.C., courtroom Friday. “The Constitution indisputably allows the Bureau of Prisons to house males with males and females with females, and nothing in the Eighth Amendment requires the government to treat these plaintiffs any differently than the 1,400 other trans-identifying men already housed in male facilities.”
The Justice Department faced questions from the panel made up of two judges appointed by former President Barack Obama and one judge appointed by former President George H.W. Bush. The judges questioned the DOJ lawyers on their assertion that the transfers to male prisons were unreviewable by a court under the Prison Litigation Reform Act, along with the failure of the inmates to exhaust all nonjudicial options before filing a lawsuit.
“The district court granted the injunctions, concluding that plaintiffs were likely to succeed in showing that their transfer to male prisons would constitute cruel and unusual punishment, in violation of the Eighth Amendment,” the DOJ said in its brief filed to the court ahead of the hearing.
“The district court’s conclusions find no support in fact or law; and in substituting its policy judgment for that of the Executive Branch, the court forces the government to perpetuate harm to female inmates’ safety, privacy, and dignity,” the DOJ brief continued. “Accordingly, the preliminary injunctions should be vacated.”
Lawyers for the prisoners said that allowing the prisoners to be transferred to male prisons would violate the constitutional rights of the group of biological males.
“This isn’t about some abstract questions, philosophical debates. This is about the constitutional limits on prison officials’ ability to ignore known and serious violence risks,” Jennifer Levi, a lawyer representing the prisoners, said at Friday’s hearing.
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The three-judge panel ended Friday’s hearing without a decision or a timeline for a decision.
The case is one of several legal challenges to the flurry of executive orders Trump issued upon his return to office in January, which are still being battled in the courts more than half a year later. Several of Trump’s other early executive orders, most notably one regarding birthright citizenship, have remained tangled in various legal battles.