PORTLAND (LN) — A federal magistrate judge on Monday granted a preliminary injunction and provisional class certification against the Oregon Department of Corrections, ruling that the agency's de facto policy of housing transgender women in men's prisons violates the Eighth Amendment and the Equal Protection Clause and ordering the state to conduct prompt, individualized housing reviews with a presumption of placement consistent with each woman's gender identity.
U.S. Magistrate Judge Clarke, presiding with full consent jurisdiction, found that ODOC's own data told the story: of approximately 117 transgender women on the agency's Transgender and Intersex Committee caseload, only eight are housed at Coffee Creek Correctional Facility, the state's women's prison — less than seven percent. The remaining 109 are in men's facilities.
"It is undisputed in the record before the Court that this default presumption, and their overwhelming placement in men's prisons, has exposed transgender women inmates to a high risk of violence and sexual assault," Clarke wrote. "The undisputed facts additionally show that ODOC has systemically failed to appropriately address this exposure."
The named plaintiffs and supporting declarants described years of rape, assault, and retaliation across multiple Oregon prisons. Plaintiff J.F., a transgender woman legally recognized as female who, according to ODOC, has been in ODOC custody since May 2008, stated that a cellmate at Two Rivers Correctional Institute attacked her while she slept, fracturing her orbital socket, and that ODOC "effectively punished me for the incident by not properly investigating the incident and treat[ing] it as a mutual fight." She also stated that after a gang member's peers taunted him for living with a transgender woman, "he became enraged and raped me" — and that the incident went uninvestigated for eight months. At Snake River Correctional Institute, after she reported a known sexual predator cellmate and no action was taken, she attempted suicide by cutting an artery in her leg. Upon returning from emergency hospitalization, she was placed on suicide watch in what she described as "a filthy, unheated cell with urine on the floor."
A declarant identified as Jane Doe alleged that she was housed from approximately March 2020 to June 2021 with a cellmate who told her he had previously been sent to segregation for PREA violations involving another transgender woman. According to Doe's declaration, when she reported the ongoing assault to the PREA Compliance Manager, she was told she would "get over it." When she later reported a separate assault and told staff that the attacker's bodily fluid was still on her, she was not taken for a rape exam for roughly seven hours, and her clothing was not preserved as evidence.
Clarke found that ODOC's defense — that it conducts individualized assessments and has no categorical policy — was contradicted by its own numbers. The court rejected the agency's argument that a presumption of placement at the women's facility would create security risks, noting that ODOC offered documentation for only a single instance of a purportedly insincere transgender identity claim, and that none of the 117 currently incarcerated transgender women had their gender identity disputed in the record. "The narrative that there are AICs (or possibly only one AIC) who falsely claim to be transgender, is unsupported and irrelevant to this case," Clarke wrote.
On the Equal Protection claim, the court found that ODOC could not offer "an exceedingly persuasive justification, or even a rational basis, for categorically excluding transgender women from women's housing or other safe, alternative housing," and that the agency had provided no justification for why cisgender women are more entitled to protection against male sexual violence than transgender women.
The injunction orders ODOC to end categorical housing of transgender women in men's facilities, provide safe and non-punitive housing alternatives including voluntary transgender housing units, prohibit housing transgender women with cellmates known to have a history of sexual or serious physical violence, ensure bodily privacy in showers and searches, require that unclothed searches be conducted by female staff absent documented extraordinary circumstances, implement confidential and non-retaliatory PREA reporting mechanisms, and provide interim mental health support for women who report abuse or exhibit suicidality.
Clarke amended one piece of the requested relief, striking language that would have allowed a transgender woman to be housed with a known violent cellmate if she gave informed, voluntary consent, finding that framing did not properly address the Eighth Amendment failure-to-protect violation.
The court scheduled an evidentiary hearing to further develop the record and ensure the relief remains narrowly tailored under the Prison Litigation Reform Act, giving ODOC an opportunity to contest the factual record it largely left unaddressed. ODOC's PREA Coordinator submitted a declaration calling many of the violence allegations "unsubstantiated" but, Clarke found, offered no explanation of how those determinations were made and no first-hand account disputing any specific incident.
Nearly 35% of transgender people in state and federal prisons were sexually assaulted between 2007 and 2021, compared to less than 5% of the general prison population, according to a Justice Department report the court cited — a statistic ODOC did not dispute.