A Montana Supreme Court decision protecting birth certificates, a ruling on Trump's anti-trans prison policies, and final judgment vacating RFK Jr.'s anti-trans "declaration."
The Montana case had me holding my breath. I was finally able to update my Montana Birth Certificate last year, but I’ve lived in constant fear it would be reversed in court. Thank you for covering these cases, it feels like my humanity is literally being litigated every hour and it is a nightmare to open my phone each morning to see what has happened each day, mainstream media ignoring us doesn’t help things.
Another excellent piece tying together separate opinions into a whole.
"T]his use of “cisgender”—a term that is not only inaccurate but potentially offensive, as explained below—mistakenly theorizes that all people living consistent with their birth sex have made a deliberate “gender identity” decision to adopt such a lifestyle."
The man never met my niece, who at one years old was demanding we put flower barrettes into her hair and insisting on wearing dresses all the time. She was born a girl, true, but she aggressively chose to strongly identify as a girl at a very young age.
Thanks for this -- one quick comment/correction. The provision the government leans on to argue that there is no judicial review of prison housing placements is not part of the PLRA (though the government says it is). It was enacted not in 1996, but in 2018, as part of the First Step Act. The idea was, BOP was directed to house prisoners "as close as practicable to the prisoner’s primary residence," but the result wasn't supposed to be reviewable by a court. The Trump Administration says this is part of the PLRA because they want its interpretation to be affected by the atmospherics of that anti-prisoner statute. But they are simply incorrect. And Judge Pillard's decision (correctly) cites the provision by number, and reads it more reasonably; she doesn't say it was part of the PLRA. (The PLRA was bad enough without adding to its provisions.)
The DC Circuit case to me is mortifying, on a case involving women who have had GCS and were already selected by BOP to be housed with other women - the risks are self evident, both in terms of SA and in terms of their legal identities being invalidated. I am in no way reassured by this and don’t think anyone else should be, either. The other two are good while they last - let us hope , in spite of everything, that’ll be a long while.
I get the concern, and it’s why I introduced it the way I did. But, what you describe about these women is the whole point of their ruling, as I detail: The district court based its decision on broad principles and generalized reports, *not* findings about these specific women. As Randolph even writes in his dissent, the majority essentially laid out a path for Lamberth to protect these women with specific findings. It appears that the plaintiffs’ lawyers (and the Dem appointees on the panel) decided that a narrow ruling to follow from Lamberth would be better poised to stand against a SCOTUS appeal. (The majority also created good PLRA precedent about the ability to challenge at all and regarding the exhaustion requirement.)
Ask yourself if cis women need to make such a showing to avoid being housed with men, in an age where it is claimed that so much as urinating next to a woman of history is a threat to them. Then look again at this decision ending a stay meant to protect women from being housed with men demanding that they justify why this will be had for them, and making them suffer the harm first and get relief later, if ever. As advocates, yes, we must be clear eyed about what tools we can find in ghastly decisions to try to undo the harm. But we must also be clear eyed about what is really going on here.
I think we're talking past each other a bit. Yes, it is awful. The lawyers here are *very* clear eyed — and that is almost certainly why they did what they did. The fact is that there is bad Supreme Court precedent (Skrmetti) — with even worse suggested on the shadow docket (particularly in Orr). Yes, you and I, the panel majority, and the plaintiffs' lawyers all almost certainly agree cis women are not treated the same, and that that's a big problem — but, I think that being clear eyed means figuring out how to protect these trans women *despite* the fact that there's a very good chance the Supreme Court majority disagrees.
That said, I now get an issue here. When you write — "making them suffer the harm first and get relief later, if ever" — that's not necessarily true. The parties can (and almost certainly will) go back to Lamberth and seek individualized TROs and then preliminary injunctions and then permanent injunctions based on the facts you cited and that are detailed in Pillard's opinion (and likely more). Given all of the information already in the case, this can be done quickly. Again, that possibility, if not likelihood, is even what Randolph says in his dissent is coming. Additionally, the mandate putting the D.C. Circuit's ruling into effect — and giving Lamberth the appeal back formally to vacate the preliminary injunctions — is not issued yet and won't be until the time passes for en banc review.
Perhaps we are talking past each other a bit; my point is that your original post felt as it if soft-pedaled the ghastliness of this decision; and I would prefer that well-intentioned readers of this blog who are either people of trans experience themselves, or genuine allies, understand just how bad the decision is, and why. I absolutely know and agree the attorneys involved are clear eyed and immensely capable and that they will do their level best to take what they’ve been given and work with it the best they can. Your procedural points are well taken. We will see how it unfolds.
His “cisgender” argument is nonsensical. Your actions, beliefs and behavior determine whether you are cisgender or transgender. They make the “decision” because there is no conflict. When young cisgender kids find out what girls and boys are, they are like ohh I’m a boy and they do not consider that they want to be the other sex. That is the “choice” so to speak. There is no decision. Trans people are trans like cis people are cis. I didn’t choice to be trans. I was born this way.
I’m not going to pretend what I’ve seen didn’t happen. Systems get gamed when the incentives are there—and in prison, they absolutely are. From personal experience, I saw the system getting gamed. Male inmates would "transition" to female, but it would not be legitimate. They would become "she-males" with the hormones and grow breasts, but would still have penises and then go to female prisons and have all the sex they could with the actual, biological female inmates. When classification decisions create access to sex, status, or safety advantages, some inmates will exploit it. That’s reality, not theory. But here’s the part nobody wants to say: a lot of this pressure exists because the system pretends human needs don’t exist. You want to reduce manipulation? Give controlled, regulated outlets—like conjugal visits. Take away the incentive to game the system. Policy works when it aligns with human behavior, not when it ignores it.
The Montana case had me holding my breath. I was finally able to update my Montana Birth Certificate last year, but I’ve lived in constant fear it would be reversed in court. Thank you for covering these cases, it feels like my humanity is literally being litigated every hour and it is a nightmare to open my phone each morning to see what has happened each day, mainstream media ignoring us doesn’t help things.
An important update, thank yiou. Could we get updates on the Kilmar Abrego Garcia and Liam Ramos deportation cases please?
As someone who went to college with the MT Chief Justice I am still blown away that his brand of hate is the minority opinion.
“The entire time I read it, I’ll be honest, I just kept imagining Rice saying he’s not ‘straight,’ he’s just ‘normal.’”
Thank you!
So rare to see good news. It helps keep hope alive.
Thank you for this. Very helpful!
Another excellent piece tying together separate opinions into a whole.
"T]his use of “cisgender”—a term that is not only inaccurate but potentially offensive, as explained below—mistakenly theorizes that all people living consistent with their birth sex have made a deliberate “gender identity” decision to adopt such a lifestyle."
The man never met my niece, who at one years old was demanding we put flower barrettes into her hair and insisting on wearing dresses all the time. She was born a girl, true, but she aggressively chose to strongly identify as a girl at a very young age.
Thanks for this -- one quick comment/correction. The provision the government leans on to argue that there is no judicial review of prison housing placements is not part of the PLRA (though the government says it is). It was enacted not in 1996, but in 2018, as part of the First Step Act. The idea was, BOP was directed to house prisoners "as close as practicable to the prisoner’s primary residence," but the result wasn't supposed to be reviewable by a court. The Trump Administration says this is part of the PLRA because they want its interpretation to be affected by the atmospherics of that anti-prisoner statute. But they are simply incorrect. And Judge Pillard's decision (correctly) cites the provision by number, and reads it more reasonably; she doesn't say it was part of the PLRA. (The PLRA was bad enough without adding to its provisions.)
The DC Circuit case to me is mortifying, on a case involving women who have had GCS and were already selected by BOP to be housed with other women - the risks are self evident, both in terms of SA and in terms of their legal identities being invalidated. I am in no way reassured by this and don’t think anyone else should be, either. The other two are good while they last - let us hope , in spite of everything, that’ll be a long while.
I get the concern, and it’s why I introduced it the way I did. But, what you describe about these women is the whole point of their ruling, as I detail: The district court based its decision on broad principles and generalized reports, *not* findings about these specific women. As Randolph even writes in his dissent, the majority essentially laid out a path for Lamberth to protect these women with specific findings. It appears that the plaintiffs’ lawyers (and the Dem appointees on the panel) decided that a narrow ruling to follow from Lamberth would be better poised to stand against a SCOTUS appeal. (The majority also created good PLRA precedent about the ability to challenge at all and regarding the exhaustion requirement.)
Ask yourself if cis women need to make such a showing to avoid being housed with men, in an age where it is claimed that so much as urinating next to a woman of history is a threat to them. Then look again at this decision ending a stay meant to protect women from being housed with men demanding that they justify why this will be had for them, and making them suffer the harm first and get relief later, if ever. As advocates, yes, we must be clear eyed about what tools we can find in ghastly decisions to try to undo the harm. But we must also be clear eyed about what is really going on here.
I think we're talking past each other a bit. Yes, it is awful. The lawyers here are *very* clear eyed — and that is almost certainly why they did what they did. The fact is that there is bad Supreme Court precedent (Skrmetti) — with even worse suggested on the shadow docket (particularly in Orr). Yes, you and I, the panel majority, and the plaintiffs' lawyers all almost certainly agree cis women are not treated the same, and that that's a big problem — but, I think that being clear eyed means figuring out how to protect these trans women *despite* the fact that there's a very good chance the Supreme Court majority disagrees.
That said, I now get an issue here. When you write — "making them suffer the harm first and get relief later, if ever" — that's not necessarily true. The parties can (and almost certainly will) go back to Lamberth and seek individualized TROs and then preliminary injunctions and then permanent injunctions based on the facts you cited and that are detailed in Pillard's opinion (and likely more). Given all of the information already in the case, this can be done quickly. Again, that possibility, if not likelihood, is even what Randolph says in his dissent is coming. Additionally, the mandate putting the D.C. Circuit's ruling into effect — and giving Lamberth the appeal back formally to vacate the preliminary injunctions — is not issued yet and won't be until the time passes for en banc review.
I hope that makes sense and is helpful.
Perhaps we are talking past each other a bit; my point is that your original post felt as it if soft-pedaled the ghastliness of this decision; and I would prefer that well-intentioned readers of this blog who are either people of trans experience themselves, or genuine allies, understand just how bad the decision is, and why. I absolutely know and agree the attorneys involved are clear eyed and immensely capable and that they will do their level best to take what they’ve been given and work with it the best they can. Your procedural points are well taken. We will see how it unfolds.
His “cisgender” argument is nonsensical. Your actions, beliefs and behavior determine whether you are cisgender or transgender. They make the “decision” because there is no conflict. When young cisgender kids find out what girls and boys are, they are like ohh I’m a boy and they do not consider that they want to be the other sex. That is the “choice” so to speak. There is no decision. Trans people are trans like cis people are cis. I didn’t choice to be trans. I was born this way.
I’m not going to pretend what I’ve seen didn’t happen. Systems get gamed when the incentives are there—and in prison, they absolutely are. From personal experience, I saw the system getting gamed. Male inmates would "transition" to female, but it would not be legitimate. They would become "she-males" with the hormones and grow breasts, but would still have penises and then go to female prisons and have all the sex they could with the actual, biological female inmates. When classification decisions create access to sex, status, or safety advantages, some inmates will exploit it. That’s reality, not theory. But here’s the part nobody wants to say: a lot of this pressure exists because the system pretends human needs don’t exist. You want to reduce manipulation? Give controlled, regulated outlets—like conjugal visits. Take away the incentive to game the system. Policy works when it aligns with human behavior, not when it ignores it.
Chris should delete this bigoted filth.
The lies that a man would literally take female hormones solely to go to a women's prison to have sex with women...what the fuck is wrong with you?
So agree with both of the above. Thank you!!