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TRANSGENDERISM’S LAST GASP

Contrary to what the Kinks might have sung, girls will no longer be boys nor will boys be girls in the Federal Bureau of Prisons.

Despite policies in place that required placement of biological males in federal women’s prisons if the males identified themselves as female, Bureau of Prisons prisoner Rhonda Fleming (who is a biological female) managed to climb the litigation mountain that frustrates almost every inmate who tries to scale it: Earlier this month, she went to trial in Tallahassee, Florida, federal court over a claim that her constitutional right to bodily privacy was violated by the Federal Bureau of Prisons’ transgender policy of sending inmates equipped with male genitalia to women’s prisons.

Rhonda, who is incarcerated at the FCI Tallahassee women’s prison, argued that she and other women were compelled by the placement of biological men in their housing units to expose their unclothed bodies in shower and toilet facilities in front of the opposite sex. The BOP countered that the showers had individual stalls and curtains for privacy, but Rhonda replied that the curtains were so filthy that no one wanted to touch them.

Anyone familiar with the Dept of Justice Inspector General’s inspection of FCI Tallahassee would find Rhonda’s allegation completely believable.

No matter. After a bench trial, Northern District of Florida Chief Judge Mark E. Walker ruled that Rhonda had not proven that she had been coerced or compelled in any such way to expose herself in the shared showers or toilets at BOP facilities in which she has been housed.

The District Court conceded that

the law makes plain that prisoners have constitutional rights, including a right to bodily privacy. But the law also makes plain that the scope of those rights is limited by the realities of prison administration, and that courts must give great deference to the decisions of prison officials relating to the administration of their facilities… [A] prisoner’s constitutional right to bodily privacy is invaded only when she is coerced or compelled to expose intimate parts of her nude body by a government policy or practice, written or unwritten, or by the order, direction, or acquiescence of a government official, express or implied.

Despite what Rhonda claimed, Judge Walker held that “BOP policy and practice is to prohibit such exposure and to provide Plaintiff and other inmates with numerous means to protect their bodily privacy. In every facility Plaintiff described, she and all other inmates are required to shower, use the toilet, and change their clothes in individual stalls separated by walls and covered by curtains, and they are permitted to choose the times they shower.”

So Rhonda lost. But just for a minute, because three days after Judge Walker’s order, incoming President Trump issued an executive order giving Rhonda everything she had asked for. The order, among other things, ordered the Attorney General to “ensure that males are not detained in women’s prisons…”

As a result, Judge Walker issued a supplemental order directing the parties to file responses by tomorrow, “address[ing] whether this Court should vacate the judgment insofar as Plaintiff’s claim for declaratory and prospective relief is rendered moot given that the President has apparently revoked the policy at issue in this case.”

As of last week, the BOP reported having 1,529 male prisoners claiming to be transgender females and 744 female prisoners claiming to be transgender males. As of August 2023, 47% of male prisoners declaring themselves to be female had been convicted of sex offenses, far exceeding the next category (weapons offenses at 12%). Women claiming to be male were by far convicted of drug offenses (57%, with the next category being weapons at 15%).

In January 2017, the BOP issued a policy permitting “housing by gender identity when appropriate,” considering the “inmate’s health and safety, and whether the placement would present management or security problems,” in line with the Prison Rape Elimination Act (PREA). A year and a half later, the Trump-led DOJ modified the policy to “use biological sex as the initial determination” of placement but still permitted gender identity-based placement “in rare cases” after considering other housing options and the inmate’s “progress towards transition.”

In January 2022, the Biden-era DOJ updated the BOP’s manual yet again to eliminate biological sex altogether as the initial determinant of placement in a men’s or women’s prison. Instead, the “Transgender Executive Council,” was to consider factors including the male inmate’s “security level, criminal and behavioral/ disciplinary history, current gender expression, programming, medical, and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.” Once placed in a woman’s prison, the prisoner would be monitored to ensure that his housing unit “does not jeopardize” his “wellbeing.”

The principal omission from the transgender calculus has always been a concern for the safety of other women prisoners. Instead, the primary concern has always been “mitigating risk” to the trans-identifying inmate.

A Free Press article argued that the risk to women prisoners was real:

Since the policies went into place, there have been multiple reports of sexual assault by male trans-identifying inmates toward female inmates. One woman who sued Rikers Island jail in New York in 2020, alleged that, after arriving in her cell, a male inmate introduced himself by saying, “I’m not transgender. I’m straight. I like women,” before groping and later raping her. Another female claimed she was raped in the prison shower by her six-feet-two-inches, 200-pound, bearded male attacker. In 2022, a trans-identifying male in a New Jersey women’s prison impregnated two prisoners.

Anecdotal reports I have received from women’s facilities is that the BOP is already moving biological male prisoners to all-male facilities.

Order Following Bench Trial (ECF 176), Fleming v Pistro, Case No 4:21-cv-325 (January 17, 2025)

Order for Expedited Response (ECF 178), Fleming v Pistro, Case No 4:21-cv-325 (January 24, 2025)

Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025)

BOP, Transgender Offender Manual (January 13, 2022)

The Free Press, Biden’s Transgender Prison Policy Goes to Trial (January 13, 2025)

– Thomas L. Root