Court Rejects Women Inmates’ Objections to California Law Related to Housing of “Transgender, Nonbinary, or Intersex” Inmates

From today’s long decision by Judge Jennifer Thurston (E.D. Cal.) in Chandler v. Macomber:

[S]ix women incarcerated in California women’s prisons … challenge a California law [S.B. 132] that dictates how prison officials and staff must address and house inmates who identify as transgender, nonbinary, or intersex. The plaintiffs allege that this law has forced … California prison officials … to transfer dangerous and violent people from men’s prisons into women’s prisons, simply because those people say (sometimes untruthfully) that they are transgender, nonbinary, or intersex. The plaintiffs also object more generally that they will be forced to share intimate spaces with transgender, nonbinary, and intersex inmates.

{Krystal Gonzalez alleges she was sexually assaulted by a person she describes as “a trans-identifying biological male inmate” who transferred into her housing unit, although she does not say exactly when. She reported the assault, but “staff failed to pursue her report,” ignored the grievance she filed, and accused her of wrongdoing, i.e., of “willful misgendering” the inmate who assaulted her. In her experience, transgender inmates “rush to engage in sexual relationships with female inmates” when they arrive in the women’s prison and sometimes put on a “feminine” affect in the presence of prison guards, only to revert to “masculine habits” when guards are away.

Janine Chandler alleges she suffers from post-traumatic stress disorder as a result of domestic and sexual abuse she experienced at the hands of her former husband and other relatives. She alleges “the presence of criminal, intimidating males gives her flashbacks of her violent husband.” She is Muslim, and her faith “instructs her not to be unclothed with unrelated males,” but as a result of S.B. 132, she alleges that she might now be required to undress in the presence of people who she considers to be men.

Tomiekia Johnson also suffers from post-traumatic stress disorder as a result of sexual assault and domestic violence in her past. She alleges the presence of transgender inmates exacerbates her condition. Less directly, she alleges she has witnessed or heard about sexual harassment and an attempted rape by an transferred inmate, who she describes as a “large man who dresses and grooms masculinely and is not interested in making any effort to present as a woman.” Johnson was not the victim, but she alleges the prison did not reprimand or move the perpetrator away from the alleged victims; instead prison officials placed Johnson and the other accusers in solitary confinement and have accused them of making false reports, including in connection with this very lawsuit. Johnson also alleges that she is eligible for resentencing and a commutation but has been denied parole “for political reasons.”

Cathleen Quinn alleges the same transgender inmate “peeped” at her as she used the restroom. She made a report, but it led to no consequences. Instead, she alleges, parole officials punished her by extending her incarceration. She alleges the commissioner overseeing her parole hearing told her that “she should have been quiet” about her “victimization” so she could have “gone home.”

Nadia Romero alleges she has been “repeatedly subjected to unwanted physical touching by a trans-identifying biological male inmate” while she was on a work assignment. Prison officials ignored her grievance and lectured her about how she had referred to the inmate who had touched her, i.e. as a man rather than as a woman. She describes herself as a “devout Catholic,” and her religious convictions do not permit her to refer to transgender women using female pronouns; using those pronouns “is sinful as it is asserting a lie.” The presence of people she considers men also conflicts with her religious beliefs.

Channell Johnson alleges she was in a consensual sexual relationship with a transgender inmate “whose background includes having raped a woman in another female prison.” Prison staff discovered the relationship and placed the other inmate in administrative segregation. When Channel Johnson refused to lie about the relationship, her former partner began to threaten her and her family members. She alleges she was then transferred to a different prison, while officials took no action to punish her former partner, who continues to threaten her.}

Reasonable people can certainly disagree in good conscience about how to ensure that all inmates are kept safe and treated fairly in these circumstances. A federal court is not necessarily the place to resolve those disagreements. Those who ask a federal district court to step in must show that the court has jurisdiction to do what they ask. The plaintiffs in this case have not done this. The reasons are straightforward:

1. This Court does not have the authority to manage California’s prisons from day to day, such as by making decisions about transfers and housing assignments.
2. Even at this relatively early stage of the case, it is clear that the state law in question does not actually force prison officials to transfer inmates without regard for the safety and well-being of others.
3. The plaintiffs are not asking the Court to redress some specific harm or injury that has already befallen them.
4. The plaintiffs have not explained why the forward-looking order they would like this Court to issue—i.e., confirmation that the state’s law is unconstitutional and an instruction that the defendants must not follow it in the future—is likely to prevent future harm. California had been housing transgender inmates in women’s prisons before the disputed law came into effect.

It is possible, however, that different or additional allegations could lay out a narrower and more limited dispute that this Court would likely have jurisdiction to resolve. For that reason, the Court will permit the plaintiffs to file an second amended or supplemental complaint, if they choose, subject to certain limitations, as explained in more detail below….

In 2021, the California Transgender Respect, Agency, and Dignity Act, also known as Senate Bill 132 or simply “S.B. 132,” came into effect. The plaintiffs allege that under this law, if prisoners in men’s prisons declare that they identify as women, the California Department of Corrections and Rehabilitation must begin treating them as women, from the pronouns it uses to the facilities where it houses them. That is so, the plaintiffs allege, regardless of whether the inmates use a male name, groom themselves in a traditionally masculine way, have ever previously presented themselves as women, have ever sought any care or treatment related to their gender, or plan to do so. The plaintiffs allege the health and safety of other inmates are subordinate concerns. They fear that a transfer may be required under S.B. 132 even for prisoners who are sex offenders with a history of raping women. In addition, they allege, the law obligates prison officials to give special consideration to the transferring inmates’ preferences for particular cell assignments and even cellmates.

If there were any doubt about the implications of these allegations, the plaintiffs make clear that they believe California has, in effect, given violent men within its prison system “carte blanche access to female facilities.” They allege S.B. 132 allows any male inmate in a men’s prison to transfer into a women’s prison, where he may sleep in the same cells as women, shower with women, use the same restrooms as women, and assault women without significant risk of detection, all by the simple expedient of declaring falsely that he identifies as a woman.

These allegations imply a transfer is a foregone conclusion once an inmate discloses a transgender identity. They imply as well that the safety and security of others are secondary, even irrelevant concerns under the terms of the statute itself. Fortunately, that is not so. The Court must generally assume the plaintiffs’ allegations are true at this stage. It is not necessary to assume an allegation is true, however, if it contradicts some indisputable fact that is subject to judicial notice, or if it contradicts the materials a plaintiff has incorporated into the complaint by reference. The California Penal Code, along with other materials the plaintiffs rely on in their complaint, reveals a more complex reality than they describe in their complaint….

In brief, S.B. 132 added two sections to the California Penal Code. The first, section 2605, instructs CDCR [the California Department of Corrections and Rehabilitation] to check whether newly arrived inmates identify as men, women, or nonbinary; to ask how they prefer to be addressed (him, her, Mr., Ms., etc.); and to give new inmates a chance to disclose whether they are transgender, nonbinary, or intersex. Inmates can decline to provide this information without discipline, or they can disclose it later. The same is true for inmates who were already within CDCR’s custody when S.B. 132 became effective. The law then prohibits CDCR staff, along with its contractors and volunteers, from “consistently” addressing inmates differently than they request. It does not impose similar requirements on others, such as inmates or visitors.

The second new section, 2606, addresses aspects of the treatment and housing of any inmates who identify as transgender, nonbinary, or intersex under section 2605. They must be “addressed in a manner consistent with [their] gender identity.” CDCR must also give “serious consideration” to their “perception of health and safety” in placements, bed assignments, programming, and other similar decisions. And in general, they must be “housed at a correctional facility designated for men or women based on their preference.” But section 2606 expressly permits CDCR to deny inmates’ requests for transfers and to consider the safety of others. Although CDCR may not deny a request for “discriminatory reasons,” such as the inmate’s “physical characteristics,” “genitalia,” “sexual orientation,” or factors “present among other people incarcerated at the preferred type of facility,” the law expressly authorizes CDCR to deny requests and preferences for “management and safety concerns.”

This language shows S.B. 132 does not automatically permit the inmates of a men’s prison to enter a women’s prison with only a declaration of transgender identity. And an inmate’s false declaration, made in bad faith, based on a prurient desire for “access” to a women’s prison may be denied based on concerns about prison “management” and the “safety” of the inmates in the women’s prison under the plain terms of section 2506. Even a good faith, honest, and accurate description of one’s identity does not necessarily suffice to justify a transfer, if it would raise management and safety concerns….

[Plaintiffs assert that certain] materials demonstrate that prison officials knew or should have known that S.B. 132 would lead to increases in the number of inmates who identify as transgender, increased safety risks, increased violence, increased sexual assaults, increased pregnancies, and increased harms to vulnerable inmates, especially among those who have been diagnosed with post-traumatic stress disorder. For example, they point out that CDCR observed an increase in the number of inmates who identify as transgender, expected an increase in sexual assault allegations, and began offering condoms and other forms of birth control to inmates in women’s prisons. They also cite research and reports that, they allege, show transgender inmates are relatively more likely to have committed sex offenses, and they allege a disproportionately large number of the inmates in women’s prisons have been diagnosed with post-traumatic stress disorder….

To quickly excerpt (and necessarily oversimplify) the court’s reasoning:

[1. P]laintiffs allege S.B. 132 prevents prison officials from protecting them from danger in violation of the Eighth Amendment…. The plaintiffs do not allege, however, that the defendants or anyone under their supervision transferred the inmates who were responsible for these injuries under the terms of S.B. 132, rather than some other regulation, such as those that were in place before S.B. 132 came into effect. For this reason, their complaint does not establish the necessary chain of cause and effect between past injuries and the law they challenge….

As noted, the plaintiffs argue they could amend their complaint to clarify that the inmates who abused or harassed them were all transferred under S.B. 132. This clarification would not show that this Court has jurisdiction over claims about the mere presence of transgender inmates within the prisons. The Court will not permit any further amendments based on this theory of harm.

Additional information about specific inmates and events could, however, eliminate some uncertainties about the risk of future abuse and harassment and whether S.B. 132 plays any role in that risk. It is at least possible that more detailed allegations about specific events and people might show that the plaintiffs have standing to assert claims along these lines…. The Court cannot exclude the possibility that another official or staff member [besidesthe defendants, the Secretary of the CDCR and two wardens]—someone with more direct responsibility for and knowledge about their housing, cell assignments, supervision, security, and safety—might have deliberately disregarded a risk to one or more of the plaintiffs, or perhaps to another person. The Court will therefore permit the plaintiffs to assert such a claim in a second amended complaint or, given the passage of time since this case began, in a supplemental complaint….

[Plaintiffs] allege “S.B. 132 requires Plaintiffs to refer to all inmates with their preferred pronouns” in violation of the Free Speech Clause. That is not correct. S.B. 132 does not obligate inmates to use any particular pronouns or words. It imposes obligations on CDCR’s employees, staff, and volunteers, not the inmates in its custody. If officers have changed the words in the plaintiffs’ grievances or instructed them to use particular words, that is not a result of any provision that was added to the state’s Penal Code under S.B. 132. Enjoining S.B. 132 or declaring that it is unconstitutional would not relieve the plaintiffs of any obligations to use or not to use any particular words.

[2. P]laintiffs allege officers and prison officials retaliate against them for exercising their First Amendment rights, i.e., for using male pronouns rather than female pronouns when they refer to transgender inmates and for refusing to acknowledge other inmates’ professed transgender or nonbinary identities. The plaintiffs do not allege, however, that the three people they name as defendants—the CDCR Secretary and the two wardens—have or will retaliate against them or play any role in another person’s allegedly retaliatory actions, nor that their actions would be connected to any obligations under S.B. 132….

[3.] Plaintiffs Romero and Chandler allege S.B. 132 is “incompatible” with the Free Exercise Clause because they “have sincerely held religious beliefs against nakedness in the presence of males.” They allege “S.B. 132 unconstitutionally burdens [their] religious practices by forcing female inmates to live, undress, and uncover their bodies to members of the opposite sex, due to the proximity of living in overcrowded housing units with other inmates.” An order blocking S.B. 132 or declaring it unconstitutional would not prevent these injuries. Transgender women were housed in women’s prisons before S.B. 132 was passed, and there is no reason to believe that declaring it unconstitutional or enjoining its future enforcement would separate Romero and Chandler from transgender inmates in the future….

It is possible, however, that the plaintiffs could show that they have standing to assert some more specific claims. For example, the Court cannot exclude the possibility that they could assert a retaliation claim about a specific disciplinary or parole decision that was tied to a particular plaintiff’s beliefs or statements about transgender inmates. Similarly, it may be possible that one or more plaintiffs could allege claims about a specific housing or cell assignment that forces them to share intimate spaces with transgender inmates and thus to act in contravention of a sincerely held religious belief…. Any future First Amendment claim must be tied to a specific action (or anticipated action) by a specific defendant and must seek relief related to that action in particular….

[4. P]laintiffs allege S.B. 132 violates the Equal Protection Clause … because it “overlooks legitimate safety and security interests of female inmates by failing to house men and women inmates separately and apart from one another” without “a compelling governmental interest.” The Court dismissed this facial challenge without leave to amend in its previous order. Now, as before, an order blocking S.B. 132 would not remedy this injury because transgender women were housed in women’s prisons before S.B. 132 came into effect….

Anthony Corso, Colin Andris Shaff, and Preeti Kaur Bajwa represent the state defendants.