Judge Pillard, joined by Chief Judge Srinivasan, wrote the opinion. Senior Judge Randolph dissented, arguing that the consolidated cases should have ended at the threshold for failure to exhaust administrative remedies under the Prison Litigation Reform Act.
President Trump's Executive Order 14,168, issued January 20, 2025, directed 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." After the order issued, BOP began preparing to transfer the plaintiffs, each of whom had previously been placed in a women's facility following individualized assessments. The plaintiffs were a roughly one percent subset of transgender women in BOP custody.
The district court granted preliminary relief on Eighth Amendment grounds, finding plaintiffs likely to prove that "transgender persons are at a significantly elevated risk of physical and sexual violence relative to other inmates when housed in a facility corresponding to their biological sex," and that they faced an "objectively intolerable" risk of violence and exacerbated gender dysphoria.
On appeal, plaintiffs expressly disclaimed the argument "that the Eighth Amendment requires every transgender woman to be housed in a women's prison." They urged the panel instead to sustain the injunctions on the narrower ground that the 18 individuals before the court had particular vulnerabilities—including long-term hormone therapy, prior gender-affirming surgeries, and prior assaults or self-harm in men's facilities—that distinguished them from transgender women in BOP custody more broadly.
The panel rejected two government threshold defenses. It held that 18 U.S.C. § 3621(b), which makes BOP designation decisions unreviewable, does not bar constitutional challenges, and that the government failed to carry its burden to show that administrative remedies were available under the PLRA. The Special Housing Unit, the only administrative measure BOP identified, was "by their own lights not an appropriate, sustainable form of relief," the court wrote.
But on the merits, the panel concluded that the district court had not made individualized findings about each plaintiff's risk-elevating characteristics, and "we cannot 'take [its] place' to make such factual findings ourselves." The court remanded for further proceedings, adding that "we are a court of review, not of first view." Plaintiffs' APA claims, which the district court did not reach, are also open on remand.
In dissent, Judge Randolph wrote that the PLRA "compels an end to these consolidated cases, not a remand that encourages the district court to repackage relief under alternative theories." He argued that the majority stretched the "unavailability" exception in Ross v. Blake "beyond its limits," and that "a court may not excuse a failure to exhaust, even to take [special] circumstances into account."