In a ruling last week (in S.D. v. Reese), a Ninth Circuit panel vacated a preliminary injunction that required Oregon to employ a “presumption” that “transgender women” prison inmates—i.e., as the panel explains, “male inmates who claim to be female”—be placed in a women’s prison.
As Judge Eric Tung (joined by Judge Daniel Collins and Judge Lawrence VanDyke) explained, the district court wrongly determined that Oregon “applied a default presumption that assigned class members to men’s prisons.” In fact, Oregon officials showed that placement decisions involved individualized review.
Judge Tung’s opinion exposes how crazy the district court’s injunction was:
Under the district court’s order, more than a hundred inmates currently in men’s prisons could be channeled to and placed in the only state-run women’s prison in Oregon. Those inmates include Plaintiff J.F., who sexually assaulted a woman by lodging a footlong plastic object into that woman’s vagina…. The district court allows for the presumption to be rebutted by “a documented and articulable security justification,” but it apparently believed that, in J.F.’s case, no such justification existed. Remarkably, the district court stated that “no explanation has been provided as to why J.F.’s violent history requires [J.F.’s] continued housing in a men’s prison.” If J.F.’s record does not rebut the district court’s presumption, it is hard to see what would. Consider then the order’s implications: Against the State’s deliberate judgment, the district court could force Oregon to transfer the named Plaintiff to a women’s prison because Plaintiff now identifies as a woman—an individual who no one disputes was convicted of perpetrating sexual violence against a woman in a manner most unconscionable. [Underlining added; record citations omitted.]
The panel issued its ruling promptly, just three weeks after oral argument. Oregon was fortunate to draw a panel of three excellent Trump nominees.