The D.C. Circuit on Friday vacated a set of preliminary injunctions that had barred the Federal Bureau of Prisons from transferring 18 transgender women to men's facilities under a Trump executive order, holding that plaintiffs had disclaimed the district court's categorical rationale on appeal and that the record lacked the individualized findings needed to uphold the narrower ground they pressed instead.
Circuit Judge Cornelia Pillard wrote for a divided panel that also included Chief Judge Sri Srinivasan and Senior Circuit Judge A. Raymond Randolph, who dissented. The court remanded for further proceedings.
Executive Order 14,168, issued Jan. 20, 2025, directs the attorney general to "ensure that males"—defined as "person[s] belonging, at conception, to the sex that produces the small reproductive cell"—"are not detained in women's prisons or housed in women's detention centers." The 18 plaintiffs, all transgender women whom BOP had previously placed in women's facilities after individualized assessments, sued to block their transfers, asserting Eighth Amendment, equal protection, Rehabilitation Act, and Administrative Procedure Act claims.
The district court granted preliminary relief, reasoning that transgender women face a substantial risk of harm in men's prisons and that placement there would exacerbate gender dysphoria. On appeal, plaintiffs did not defend that categorical rationale. They argued instead that their individual characteristics—long-term hormone therapy, surgeries, and prior histories of assault or self-harm in men's facilities—placed them at particular risk.
Pillard wrote that the panel could not sustain the injunctions on that narrower theory. "The existing record does not include findings of fact about the individual plaintiffs' vulnerabilities, or about the reasons on which the Bureau relied in placing plaintiffs in women's facilities in the first place," she wrote. The panel noted that making such findings "is the province of the district court," and that an appellate court cannot "take [its] place."
The court rejected the government's two threshold defenses. It held that 18 U.S.C. § 3621(b), which shields BOP placement decisions from judicial review, does not bar constitutional claims absent "clear and convincing" evidence of preclusive intent. It also held the government failed to carry its burden under the Prison Litigation Reform Act's exhaustion requirement, because BOP conceded its grievance process could not stop the executive-order-mandated transfers and identified only temporary placement in a Special Housing Unit as a possible remedy. "A temporary, stop-gap measure that lacks any capacity to relieve plaintiffs from the ongoing risk of harm in men's prisons that plaintiffs allege is not 'capable of use to obtain some relief for the action complained of,'" Pillard wrote, quoting Ross v. Blake.
Randolph dissented on the exhaustion question, arguing the PLRA "compels an end to these consolidated cases, not a remand that encourages the district court to repackage relief under alternative theories." He wrote that prison officials "retained broad discretion to ameliorate plaintiffs' alleged harms through an array of ordinary interventions," and that under Supreme Court precedent, "a court may not excuse a failure to exhaust, even to take [special] circumstances into account."
The panel dismissed as moot the appeals from injunctions that had already expired under the PLRA's 90-day automatic-expiration provision, and declined to reach plaintiffs' APA claims, which the district court had not addressed.