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.
Two prisoners sued the state, alleging it failed to protect transgender women from sexual and physical violence by housing them in men’s prisons where they faced dangerous and degrading conditions. They sued on behalf of a class of current and future transgender women prisoners.
The appellate court noted that state records showed newly-admitted inmates are evaluated within 72 hours of arrival and again within 30 days to determine whether they meet specific criteria indicating either “vulnerability or likelihood of perpetrating sexual abuse.” Those who identify as “transgender” are placed in the infirmary until a committee can gather all necessary information to decide placement, which takes about a week.
Committee members consider a prisoner’s medical history, mental health status, how the prisoner self-identifies, safety concerns for the prisoner and others, and any other relevant information, according to the ruling.
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.
State records showed there were 117 transgender women housed in Oregon prisons. Of those, 26 requested placement at the state’s only women’s prison and eight are currently housed there.
The state argued that not all transgender women prisoners wanted to be housed at the women’s prison and some can’t be housed there due to safety concerns, including one transgender woman convicted of a sex offense against a disabled woman and another who sexually abused a niece and physically assaulted a girlfriend.
The appeals panel threw out Clarke’s order in April for the state to end the “categorical” housing of transgender women in men’s prison. Clarke had directed the state corrections department to conduct individual safety assessments for each transgender woman in custody and house them based on their gender identity.
Tung wrote that the plaintiffs wrongly relied on “stale statistics” and national data, having cited a U.S. Department of Justice study that examined the years 2007 through 2012, when nearly 35% of transgender people in state and federal prisons were sexually assaulted.
The appeals panel also rejected the class certification, finding that declarations from transgender women who said they were exposed to sexual assaults in Oregon men’s prisons might warrant individual allegations of constitutional violations but did not justify class relief.
“At most, the record reflects that different officials acted in different ways toward different prisoners at different times,” Tung wrote, rejecting any finding of a systemic policy by the corrections department to place transgender women at risk of harm.
Circuit Judges Daniel P. Collins and Lawrence VanDyke joined Tung on the panel in the unanimous ruling. All three judges were appointed by President Donald Trump.
Attorney John Burgess, who filed the suit, said by email that his clients are disappointed in the outcome but not entirely surprised.
The appellate court ruling relates to Clarke’s preliminary injunction and provisional class certification but does not end the lawsuit, which now returns to district court.
“We continue to believe that the conditions at ODOC place transgender women in ODOC custody at a very serious risk of sexual and physical assault, and we intend to continue pursuing our clients’ claims,” Burgess said. “We believe the evidence developed as the case proceeds will support those claims.”
©2026 Advance Local Media LLC. Visit oregonlive.com. Distributed by Tribune Content Agency, LLC.
