A federal appeals court heard oral arguments Thursday from Oregon state attorneys, challenging an order that the state change how it houses transgender women in prison.
The case before the U.S. Ninth Circuit Court of Appeals stems from a class action lawsuit filed in 2025. Two transgender inmates sued the Oregon Department of Corrections, arguing they face severe risk of sexual and physical violence when housed in prisons alongside cisgender men.
FILE - Coffee Creek Correctional Facility in Wilsonville, Oct. 19, 2022. The facility has minimum- and medium-security housing units for all female adults in custody in the state. At the center of a 2025 class action lawsuit is whether or not incarcerated transgender women can transfer to Coffee Creek.
Kristyna Wentz-Graff / OPB
The plaintiffs detailed multiple alleged incidents of sexual violence, assaults and homophobic attacks that each of them faced, according to the initial complaint. They argued living in general population men’s prisons constituted cruel and unusual punishment.
The state currently conducts individualized assessments for transgender inmates. Prison officials consider a person’s gender identity, history and safety to themselves and others when making that decision, Oregon’s attorneys said in their appeal.
U.S. Magistrate Judge Mark D. Clarke said that, despite the process, Oregon often places transgender women in men’s prisons by default. In April, he ordered the state to house transgender women inmates in facilities that align with their gender identity, and only after completing a safety assessment.
FILE - Oregon State Correctional Institution in Salem, Ore., May 19, 2021.
Kristyna Wentz-Graff / OPB
He pointed to a statistic that 94% of the 123 known transgender women in Oregon prisons remain 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 in his ruling.
The Oregon Department of Justice appealed Clarke’s decision, arguing against the judge’s claim that state prisons presumptively place transgender women in men’s prisons. They called the order “vague and overbroad,” and said the judge did not consider transgender inmates who may choose to remain in a men’s prison by choice.
“The district court’s foundational finding was clearly erroneous because the record contained no evidence to support it,” the state said in its appeal.
The three-judge appeals panel agreed to temporarily halt Clarke’s order until the state’s appeal is resolved.
The judges of the panel, all of whom were appointed by President Donald Trump, had significantly more questions for the plaintiffs’ attorney. In particular, the judges seemed skeptical that there was evidence that transgender women would prefer to transfer to a women’s prison.
“I don’t know if there’s any basis for that,” Judge Lawrence VanDyke said. “It’s at least theoretically possible that they didn’t request a transfer because they don’t want to.”
John Burgess, the attorney for the plaintiffs, responded that not every transgender inmate wants to be transferred to a woman’s prison. Some instead wish to move to a section of the prison they deem to be safer, he said.
It’s unclear when the panel will make a decision in the case.
The appeals court hearing comes as federal lawsuits involving transgender civil rights have become increasingly common in recent years. Earlier this year, the Oregon Department of Justice led a successful multi-state lawsuit to prevent the federal government from withholding all Medicare and Medicaid payments to healthcare programs that provide gender-affirming care for minors.
Burgess told OPB on Wednesday that Clarke’s initial decision was key to protecting transgender women currently living in men’s prisons. He said any reversal could put them in danger.
“Getting rid of the preliminary injunction, for whatever reason, I think would be a step backwards in protecting those inmates,” Burgess said.
Representatives from the Oregon Department of Corrections were unavailable for comment before press time. In a written statement, officials said the department has detailed practices to improve the quality of life for transgender inmates.
“DOC uses gender-informed practices and conducts thorough, individualized assessments to identify safety and security considerations for housing decisions,” a DOC spokesperson wrote. “These assessments consider the circumstances and needs of each adult in custody, with the goal of supporting appropriate placement. DOC maintains robust, well-developed policies for both individualized transgender housing placement and coordinated gender-affirming medical care, including on-site electrolysis at two facilities.”
Correction: The original version of this story misstated the name and title of Judge Mark Clarke. OPB regrets the error.
