Dee Farmer knows all too well what could happen when a trans woman is placed in a prison for men: abuse and assault from prisoners and frequent indifference from prison officials to stop it.
While incarcerated in the 1990s, Farmer filed a lawsuit in federal court alleging that federal prison officials deliberately and indifferently failed to protect her as a prisoner from rape and assault. In 1994, the U.S. Supreme Court sided with her complaints and agreed that the government has a duty to protect a prisoner from violence and acknowledged the particular vulnerability of trans inmates.
It was the first time a trans petitioner had a case accepted by the Supreme Court. The case has been cited repeatedly in lawsuits filed in recent years by other trans inmates incarcerated in state and federal prisons who alleged similar abuse.
But last week President Trump, in one of his first executive orders, upended long-standing federal policies that would have protected inmates, like Farmer once was, and allowed incarcerated trans women to be housed in a facility that aligns with their gender identity. The order mandates that the federal Bureau of Prisons no longer allow transgender women to be housed in a women's prison, immigration detention centers or other detention centers that align with their gender identity.
It also recognizes just two sexes, male and female, halts gender affirming medical treatments, which can include hormone therapy and gender affirming surgery. Access to this care is considered medically necessary to treat gender dysphoria, a medical term used to describe the deep discomfort caused by a mismatch between a person's assigned sex at birth and their gender identity. Without it, individuals can struggle severely with mental health issues such as heightened anxiety and depression, with some turning to self-harm and suicide.
This order is just one in a series of actions signed by Trump that target the transgender community. In just over a week in office, Trump signed an executive order to ban transgender troops from serving openly in the military and another restricting gender-affirming care for minors.
"President Trump received an overwhelming mandate from the American people to restore commonsense principles and safeguard women's spaces from biological men. He will deliver and restore safety and security for American women," White House spokeswoman Anna Kelly said of the order.
Farmer said that when she read the order, she felt it "undermined, if not directly contradicts, what the Supreme Court found in my case."
Farmer, who now runs the prison advocacy organization Fight4Justice, said she viewed the order "as an infringement upon the right to be safe from sexual assault." She, and other formerly incarcerated trans women, as well as advocates fighting on behalf of transgender people, say this order poses a serious risk to the health and safety of the thousands of transgender people behind bars.
For supporters of the order, including the Alliance Defending Freedom, a self-described conservative Christian legal advocacy group, it's a much-needed change to standards that put cisgender women in female facilities in danger.
"We're very pleased to see President Trump restore sanity to this issue and to make sure that we have a proper understanding of sex, and that that understanding flows down to schools, prisons, other places where the privacy and safety of women are paramount," said Matt Sharp, senior counsel with the Alliance Defending Freedom.
But questions have emerged over whether the order can withstand legal challenges. A sealed complaint filed Sunday by a transgender inmate incarcerated in a federal facility has already claimed the order is unconstitutional.
"This executive order flies in the face of a lot of really well-established law around sex discrimination and around cruel and unusual punishment," said Bobby Hodgson, the assistant legal director of the New York Civil Liberties Union, who works on civil rights and civil liberties cases.
The Trump administration is already moving trans prisoners and immigrants
D Dangaran, director of Gender Justice at Rights Behind Bars, told NPR that several trans people in federal facilities are already being separated from the general population as they prepare to be moved to a prison that doesn't align with their gender identity — at great risk to their physical and mental well-being.
The Bureau of Prisons says there are 1,529 transgender females in BOP custody and 744 transgender males.
Though Trump's order only explicitly mentions the rehousing of transgender women, not transgender men, Dangaran said their organization "has already received reports from our clients that trans people — trans men and trans women — have been told they will no longer receive hormone therapy or other gender-affirming care. They are being rounded up and moved to unknown facilities."
The Bureau of Prisons didn't immediately respond to questions on this allegation.
Dangaran added, "Trans men usually are housed with women, and trans women have fought to be housed with women, too, where it is safest. We can expect trans women to be moved to men's facilities if they aren't already there."
Iván Espinoza-Madrigal, the executive director of Lawyers for Civil Rights, said trans immigrants are also being affected by this new order. Trump launched a broad crackdown on immigration as soon as he took office.
"We see a particularly dark period ahead of us where immigration detention facilities won't meaningfully step up to support detainees including the most vulnerable," Espinoza-Madrigal said. In the past, trans detainees would find difficulty accessing gender-affirming clothing and health care, he said.
"But the concern is now that these inconsistencies will lead to a cascade of harm as more and more protections, policies and practices are either rescinded or replaced with harsher measures" that particularly harm those who don't conform to traditional gender norms.
When forced to stay in prisons based on their assigned sex at birth or genitalia at the time they were arrested, transgender inmates often face greater risk of assault. A 2015 study found that 1 in 5 trans inmates was sexually assaulted by staff or other inmates in the prior year, a rate vastly exceeding that of the general U.S. prison population.
The White House, in defense of the executive order, sent NPR links to two New York Post articles citing allegations of cisgender women being assaulted by two prisoners who were trans. The White House didn't respond to questions about what the plan is for moving prisoners.
Can this order withstand legal challenges?
Farmer's 1994 case has been cited in lawsuits filed by transgender individuals incarcerated in state and federal prisons alleging abuse, failures by prison staff to provide gender-affirming care and to demand a move to a prison that aligns with their gender identity. And those cases have been the driving force in slowly changing state and county-level policies to allow prisoners to be housed in facilities that align with their gender identity and to access gender-affirming health care. Many courts have sided with the trans prisoners in forcing those changes.
In 2022, a federal judge in Illinois ordered the Bureau of Prisons to provide gender-affirming surgery for a transgender inmate after finding that denying the procedure was likely a violation of the Eighth Amendment's protections against cruel and unusual punishment.
David Cole, a law professor at Georgetown University, said with the existing case law and the U.S. Constitution on trans inmates' side, the executive order is unlikely to withstand legal challenges.
"The Constitution requires prison officials to house prisoners in a safe and secure environment, and to provide necessary medical treatment to them," Cole said. "The Executive Order is not the exercise of professional judgment by prison officials with respect to any individual prisoner as to what he or she needs, but an ideological mandate imposed for political reasons, not security reasons."
Advocates including Dangaran and Hodgson say Trump's order also appears to violate the Americans with Disabilities Act (because gender dysphoria is recognized as a disability under the ADA) and the Prison Rape Elimination Act (PREA), a 2003 law that requires federal, state and local correctional facilities to enforce a zero-tolerance policy regarding sexual assault against inmates and requires housing assignments for trans inmates to be made on a case-by-case basis.
But Sharp, with the Alliance Defending Freedom, said there's also legal precedent about the authority of the government to "maintain sex-specific spaces" especially when privacy and safety are a concern.
"That's not to say we can't accommodate individuals who identify as transgender, providing them single user spaces that they can have their privacy respected as well, but it should never come at the cost of the privacy and safety of women in these facilities," he said.
Farmer says she is confident that Trump's order will not stand and that "justice for humanity will always prevail."
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