“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
A number of trans women challenged an Oregon state practice that called for trans women to be housed in state prison facilities for men.
What happened in this case?
Oregon’s practice has been to assign transgender women convicted of felonies to prison facilities for men, not women. Contending that this practice causes a “substantial risk of harm” and violates their constitutional rights, several transgender women filed a class action to challenge the practice. Experienced magistrate judge Mark Clarke, who was appointed in 2007 by the judges in the district, certified the class and issued a preliminary injunction in favor of the challengers that, among other relief, would have transferred some 100 transgender women to female prison facilities. The case was appealed to the Ninth Circuit.
The case was heard by a panel of three Trump judges – Eric Tung, Daniel Collins, and Lawrence Van Dyke. In S.D. v Reese in September. In an opinion by Tung, the court vacated the decision below and ordered that the class be decertified. Tung claimed that the lower court order was improperly based on “stale statistics” and “baseless speculation.”
Why is this decision harmful?
Advocates have strongly criticized the Trump judges’ decision. As the plaintiffs’ attorney explained, “current conditions place transgender women” in Oregon custody at a “serious risk of sexual and physical assault” and they will continue to litigate the case. Even those who support the Ninth Circuit decision on the merits, however, have strongly criticized its denigration of transgender women prisoners. On a number of occasions in his opinion, Tung referred to transgender women prisoners as “male inmates who claim to be female” and put the term “transgender” in quotes. The Oregon Attorney General’s office, which agreed with the overall result, made clear that “we strongly disagree with the court’s harmful language.” Tara Herivel, a private attorney who often represents transgender prisoners, was more blunt, maintaining that the language showed “an anti-transgender bias among the panel” and “bias with all the flags flying.” She fears that the decision “has a lot of weight” and could well be cited in future cases.
In addition to the harm this Trump judge decision does to transgender women prisoners in Oregon, it also sets a bad precedent on this issue, especially in the Ninth Circuit, which includes Oregon, California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, and Washington. In addition, the ruling illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.