Trans woman in prison sues over Trump's anti-trans "sex" definition order

The executive order "raises serious concerns" for the woman's "safety and well-being," a lawsuit filed on Sunday alleges. Also, for paid subscribers: Closing my tabs.

A transgender woman in federal prison sued the Trump administration on Sunday, arguing that President Donald Trump’s executive order defining “sex” is intentionally discriminatory, violates her constitutional and statutory rights, and puts her in danger.

In the lawsuit, the woman’s lawyers allege that she’s been placed in solitary confinement since the day after the order and faces an “imminent” move to a men’s facility.

“If she is transferred to a men’s facility, she will face serious risk of victimization and sexual violence,” the lawsuit alleges. “She will not be safe.”

Trump, the lawsuit alleges, “has been transparent about his hostility toward transgender people and openly stated his intentions to create legal obstacles to eliminate legal protections for transgender people and to deter them from obtaining medical care or being able to live in a sex other than their birth sex.”

The definition of “sex” in the order is “intentionally designed to discriminate against transgender people,” the lawsuit alleges, and its prison-related requirements would put the woman “at an extremely high risk of harassment, abuse, violence, and sexual assault.“

The currently available, redacted complaint states that the plaintiff — referred to by the pseudonym of Maria Moe — has “lived as a woman and has taken hormones continuously since she was a teenager” and has never been housed in a men’s facility while in federal custody. Serving her sentence in a low-security federal prison, the lawsuit notes the Moe “has no violent disciplinary history, poses no threat to her female peers, and her presence in the women’s facility has not caused any disruption or interference with prison operations.”

Since January 21, however, it alleges that she was “placed … in the Special Housing Unit (SHU)” and “has not been permitted to have contact with others for at least four days“ — in other words, solitary confinement. Moe was told that, because of Trump’s order “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” she “was being transferred to a men’s facility.”

The lawsuit highlights that “Section 2 of the Order includes a definition of ‘sex’ that is intentionally designed to discriminate against transgender people.” After detailing the definitions of “sex,” “male,” and “female” contained in Trump’s executive order, the lawsuit alleges that the order “includes these definitions to preclude transgender people from being able to live in a sex different than their birth sex and to deny them equal treatment.”

In addition to highlighting the fundamental problems with the underlying definitional aspect of Trump’s order — as well as his motive — the lawsuit specifically targets the two provisions of order responsible for Moe’s treatment.

First, Section 4(a):

As to 4(a), the lawsuit alleges:

Then, Section 4(c):

As to 4(c), the lawsuit alleges:

The lawsuit also alleges that Moe ”has no ability to contest her placement in the SHU, and BOP officials told her she could not challenge the transfer because it was required by the Executive Order.”

The lawsuit raises six claims, alleging the actions already or set to be taken against the woman violate the Due Process Clause of the Fifth Amendment, the Eighth Amendment (two claims), Section 504 of the Rehabilitation Act of 1973 (two claims), and the Administrative Procedure Act.

The lawsuit was filed in federal court in Massachusetts on Sunday by lawyers with GLBTQ Legal Advocates & Defenders (GLAD), National Center for Lesbian Rights (NCLR), and the firm of Lowenstein Sandler LLP.

In addition to Trump, the lawsuit also names Acting Attorney General James McHenry III and William Lothrop, the acting head of the Bureau of Prisons, as defendants.

The lawsuit was initially noticed by Reuters’s Mike Scarcella, who posted a link to the complaint online.

In addition to the complaint, CourtListener’s freely available version of information retrieved from the docket shows that the woman’s lawyers also filed a motion for a temporary restraining order — presumably seeking to stop her transfer and likely also to secure her removal from the SHU — and a memorandum of law supporting that motion. Additionally, they filed a motion to file the case under seal and to proceed with the pseudonym of Maria Moe, as well as an accompanying memorandum supporting those requests. That docket entry suggests the lawyers are seeking only to “partially seal,” which could be a reference to the redactions in the publicly available complaint.

The final items on the docket are notations that the case was assigned — to U.S. District Judge George O’Toole Jr., a Clinton appointee.

In the weeds docket questions

As of early Monday, the public docket — available through the federal courts on PACER — is completely sealed. It is likely that was done by O’Toole, his chambers, the clerk’s office, or some semi-automated procedure while the motion to seal and proceed under a pseudonym is considered.

As to the docket items listed on CourtListener, the way that works is that items available there are those retrieved by a user with the RECAP extension installed. This is part of the Free Law Project, and you should know about it (and use it) if you use PACER — i.e., if you look up federal cases. Although CourtListener’s version of the docket includes those four items I mention above, in addition to the complaint, none of the filings themselves other than the complaint are currently available on CourtListener. This most likely is so because the federal docket was sealed before anyone with the RECAP extension installed downloaded anything other than the complaint.

Law Dork will have more on this lawsuit as additional information becomes available and as the lawsuit proceeds.

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Closing my tabs

This Monday, here are the tabs I am closing: