Judge Royce C. Lamberth of the federal district court in Washington issued a preliminary injunction on June 7 requiring that transgender women challenging Executive Order 14168 be housed in women's prisons or women's halfway houses [1]. The Bureau of Prisons has since moved four transgender women held at FMC Carswell, a federal facility in Fort Worth, Texas, into a restrictive segregated unit, and is reportedly preparing to move more women in [1].
The plaintiffs' motion describes a unit with 'little or no access to recreation, work, or programming,' and says the conditions have 'worsened their gender dysphoria' [1]. Alexander Shalom of Lowenstein Sandler, counsel for the plaintiffs, called the unit 'harsher than in a women's prison' and argued the transfers violate the injunction 'on its face' [1].
The government's defense runs through the Prison Rape Elimination Act. PREA generally bars segregated housing for LGBTQI prisoners, with an exception for placements made under a consent decree, legal settlement, or court judgment, and the government contends the Carswell unit fits that exception [1]. Asked about the injunction at the July 31 hearing, Justice Department attorney M. Jared Littman maintained the transfers were not a violation, telling the court that 'by its terms, they were not' [1].
Lamberth's skepticism was not subtle. 'You're violating my order, aren't you?' he asked Littman, according to JURIST's account of the hearing [1].
The plaintiffs press two arguments beyond the compliance fight: that the segregated unit itself violates PREA, and that the executive order's prison provisions inflict cruel and unusual punishment under the Eighth Amendment [1]. The government's appeal of the underlying housing injunction is pending before the D.C. Circuit [1]. No ruling on the July 31 enforcement dispute had been reported when this article was written.
The government's argument is not empty: PREA's text contains an exception, and whether a court-ordered housing arrangement can carry a segregated unit within it is a genuine interpretive question. The difficulty is that the injunction ordered these women housed in women's prisons or halfway houses, and a restrictive unit their lawyers describe as harsher than either is what they got [1].
Four women sit in that unit while the parties brief whether it counts as compliance. The judge who wrote the order has already told the government, in open court, which way he is leaning.
