A Ninth Circuit Panel Clears Oregon to Keep Housing Trans Women in Men's Prisons

A three-judge panel of the US Court of Appeals for the Ninth Circuit ruled on Thursday that Oregon may continue housing transgender women in men’s prisons, vacating a class-wide preliminary injunction and directing the district court to decertify the class of prisoners who brought the case.

The panel — Circuit Judges Daniel P. Collins, Lawrence VanDyke and Eric C. Tung, all three appointed by President Donald Trump — heard argument in Pasadena on 27 August. Judge Tung wrote the published opinion in the case, docketed as No. 26-4872.

What the court held

The injunction under review had been issued by US Magistrate Judge Mark D. Clarke in the District of Oregon. It required the state to presumptively assign transgender women in its custody to Oregon’s only women’s prison, subject to individualised review, on the reasoning that the state’s existing practice exposed them to a substantial risk of harm in violation of the Eighth Amendment.

The panel’s central conclusion is factual rather than doctrinal. Tung wrote that the district court’s premise — that Oregon applied a “default presumption” assigning transgender inmates to men’s prisons — “lacks record support and is clearly erroneous.” From there, everything downstream fell.

“The district court improperly disregarded the overwhelming contrary evidence presented by Defendants in favor of baseless speculation,” Tung wrote. On the question of whether there was a common pattern capable of supporting class-wide relief, he was blunter still: “At most, the record reflects that different officials acted in different ways toward different prisoners at different times.” He also wrote that placing transgender women in the women’s facility could raise public safety concerns.

The practical effect is that Clarke’s injunction is gone and the class no longer exists. The underlying case returns to the district court, where the two named plaintiffs — identified in the opinion as S.D. and J.F., who sued in 2025 — can still pursue individual claims toward discovery and trial.

“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,” attorney John Burgess told Oregon Public Broadcasting. “We believe the evidence developed as the case proceeds will support those claims.”

The language of the opinion

The opinion’s first sentence describes the injunction as having required Oregon to presumptively assign “more than a hundred ‘transgender women’ prison inmates (male inmates who claim to be female)” to the women’s facility. The parenthetical gloss appears once, at the opening, as the court’s own definition of the term; thereafter the opinion keeps “transgender women” inside scare quotes and refers to the plaintiffs as male inmates.

That is a choice, and it is not an incidental one. A federal appellate court writing for publication is setting out how the litigants before it will be described in every subsequent citation of the case. The panel could have used the parties’ own terms, as courts routinely do, or used neutral language without endorsing anything. It did not.

We are reporting the phrasing because it is part of the record, not to dress it up as the holding. The holding is the clear-error finding about Oregon’s practice, and that is what will bind the district court. But the two are related: a court that frames the plaintiffs as men who claim otherwise has already shaped how it will weigh evidence about the danger those plaintiffs face.

The standards the ruling sits against

Federal standards under the Prison Rape Elimination Act have required individualised placement for more than a decade. Under 28 C.F.R. § 115.42, agencies must decide facility, housing and programming assignments for transgender and intersex prisoners on a case-by-case basis, considering whether a placement would ensure the person’s health and safety and whether it would create management or security problems. The prisoner’s own view of their safety must be given serious consideration. The PREA Resource Center has stated plainly that a policy or practice assigning transgender people to gender-specific facilities based solely on external genital anatomy violates the standard.

Oregon’s own position, as reported by the Advocate, is that it does assess placements individually — considering personal history and gender identity among other factors. The Advocate also reports that records show roughly 90 percent of transgender women in Oregon’s state prisons end up in facilities designated for men. Those two statements are not strictly contradictory, and the gap between them was the heart of the dispute: Clarke read the outcome as evidence of a presumption; the panel read it as the sum of many separate decisions.

The risk figures behind the litigation are not in serious dispute. The Bureau of Justice Statistics’ National Inmate Survey found that 35 percent of transgender prisoners in state and federal facilities reported sexual victimisation by staff or other inmates within a single year — many times the rate reported by the incarcerated population overall. Oregon has already paid out in an individual case: the state agreed to $295,000 for a transgender woman abused in its custody.

The ruling also arrives against a federal backdrop. The Bureau of Prisons issued a directive in February moving federal placements toward birth sex, and Clarke’s order had run counter to it. This panel’s decision removes one of the more significant state-level obstacles to that direction of travel.

What happens now

Nothing about Thursday’s ruling resolves whether Oregon’s placements violate the Eighth Amendment. It resolves that the evidence assembled so far does not support deciding that question for everyone at once, on an emergency basis, before trial. Plaintiffs’ counsel have signalled they will keep litigating, and an en banc petition — asking a larger group of Ninth Circuit judges to rehear the case — remains available.

For the women at the centre of it, though, the interim is the point. Preliminary injunctions exist precisely because some harms cannot be undone at final judgment, and the months between now and a trial are months served in the facilities the case is about. That is the part of this ruling that will be felt before any of the law is settled.