A federal appeals court Wednesday threw out a previous court order requiring that Oregon stop housing transgender women in men’s prisons.
The 9th Circuit Court of Appeals panel said a lower court had incorrectly ruled regarding how Oregon housed its transgender women inmates. All three judges on the panel were appointed by President Donald Trump, and they voted unanimously to strike down the order.
FILE - Coffee Creek Correctional Institution in Wilsonville, Oregon's only women's prison, pictured in 2019.
Allison Frost / OPB
Some criticized the language in the panel’s opinion as being harmful to transgender people.
Wednesday’s ruling reverses a decision made in April, when U.S. Magistrate Judge Mark D. Clarke ordered Oregon to house transgender women inmates in prisons that align with their gender identity, and only after completing a safety assessment.
Appeals Court Judge Eric Tung authored the panel’s opinion, saying Clarke had erred when he said the state had presumptively placed transgender women in men’s prisons.
“That premise lacks record support and is clearly erroneous,” Tung wrote. “The district court improperly disregarded the overwhelming contrary evidence presented by Defendants in favor of baseless speculation.”
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.
Related: Appeals court considers case over treatment of trans people in Oregon prisons
Two transgender woman inmates sued the state Department of Corrections in 2025, arguing they face severe risk of sexual and physical violence when housed in prisons alongside cisgender men.
Those women had detailed multiple instances of sexual violence and assaults, and said that being housed in men’s prisons violated their Eighth Amendment rights against cruel and unusual punishment.
But the appeals court said that the plaintiffs had failed to prove that Oregon had acted with deliberate indifference to transgender inmates. Tung wrote that Clarke had relied on outdated evidence and failed to consider counter arguments presented by the state.
“Nor have Plaintiffs shown that Defendants acted in a uniform way with deliberate indifference toward each of the class members,” Tung wrote. “At most, the record reflects that different officials acted in different ways toward different prisoners at different times.”
John Burgess, the attorney for the transgender inmates, sent OPB a statement saying that his team was disappointed, but not surprised by the appeals court’s decision.
“We continue to believe that the current conditions place transgender women in ODOC custody at a serious risk of sexual and physical assault, and we intend to continue pursuing our clients’ claims. We believe the evidence developed as the case proceeds will support those claims.”
Related: Federal appeals court blocks ruling for housing trans women in Oregon prisons
Judge’s language draws criticism
In his opinion, Tung repeatedly refers to transgender women inmates as “male inmates who claim to be female.” He also said that broadly placing transgender women in women’s prisons “compromises public safety.”
Tara Herivel, a Portland-based attorney who represents transgender inmates, said she believed the ruling highlighted an anti-transgender bias among the panel.
“They don’t even try to hide their animus for trans people at the most basic level,” Herivel said. “That is bias with all the flags flying.
“It is only transgender women who are treated this way, as if they have an inherent dangerousness.”
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.
Kristyna Wentz-Graff / OPB
She also criticized the Oregon Department of Justice, which has fought for transgender rights in other lawsuits, for appealing the April ruling in the first place.
“DOJ has a forward-facing position that it supports queer rights,” she said. “But when it comes down to appealing a case like this, and getting a result like this, it does not support queer rights in action.”
Related: DOJ orders prison inspectors to stop considering LGBTQ safety standards
In a statement, the Oregon Attorney General’s Office lauded the appeals court’s decision.
“We’re pleased that the Ninth Circuit agreed with our core legal arguments,” spokesperson Jenny Hansson wrote. “The ruling agreed that decisions about the appropriate placement for an individual should be addressed case by case—taking into account a wide range of considerations—rather than by mandating new across-the-board policies.”
But the state Attorney General’s Office also attempted to distance itself from Tung’s language describing transgender people.
“While we agree with the outcome of the case, we strongly disagree with the court’s harmful language,” she wrote. “It does not reflect our brief or our values.”
The initial lawsuit will continue in federal district court.
For Herivel, who frequently represents transgender inmates, the impact of the 9th Circuit’s ruling could be far reaching, as it will likely be cited in similar cases.
“It’s a dirty stain that’s going to follow this issue and it’s not going to disappear,” Herivel said. “It has a lot of weight.”
