Trans women prisoners in CA file to intervene in anti-trans lawsuit
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Four trans women currently incarcerated in California prisons have filed a motion to intervene in a lawsuit that, if successful, would undermine their right to serve out their prison terms in women's prisons. In a separate, unrelated action, one of the original plaintiffs, Women II Women, has petitioned to be dismissed from the case.
That lawsuit, filed November 17, 2021 by four other women, seeks for the courts to declare Senate Bill 132 — authored by gay state Senator Scott Wiener (D-San Francisco) — unconstitutional under both the state and federal constitutions. A motion to intervene petitions the court to allow someone not named as a party to an action to become a party.
The motion, filed May 9 in United States District Court for the Eastern District of California in Fresno, would, if allowed, permit the four transgender women — Katie Brown, Kelli Blackwell, Tremayne Carroll, and Jennifer Rose — to participate in the lawsuit because they "have direct interests in defeating plaintiffs' challenge to SB 132, and the court's resolution of that challenge will directly affect the proposed individual intervenors' personal safety and their protected rights," the motion states.
"Allowing the proposed intervenors to become parties to this case is the only way for the court to ensure that those who have the most at stake in this litigation — the [transgender and intersex] people whose safety and dignity SB 132 seeks to protect — are fully represented," the motion continues. "And it is the court's best opportunity to understand fully the perspectives of incarcerated TGI people in deciding questions that are matters of life and death for them."
"If these plaintiffs get what they want, I'll be sent back to a men's prison, where I would face relentless sexual harassment and the constant threat of rape," said Carroll. "That was my reality for years, and I am terrified to go back. I am a woman, and I don't belong in a men's prison,"
Lambda Legal Defense and Education Fund staff attorney Nora Huppert, in a news release, called the effort to overturn SB 132 "bigoted." Lambda Legal and the American Civil Liberties Union of Southern California filed the motion to intervene on behalf of the four trans prisoners.
"SB 132 has been the law in California for more than a year, and we are intervening to defend it from the bigoted distortions and flagrant misrepresentations of the anti-trans groups challenging this law," Huppert stated. "Transgender people in prisons are extremely vulnerable and are disproportionately subject to harassment and violent assault. California must do more, not less, to protect incarcerated transgender people."
Indeed, some of the testimony provided by the four trans women is horrific.
Rose further testified, after already stating that she had been sexually assaulted twice, that she has "also been physically assaulted." For instance, on September 13, 2016, while incarcerated at a different facility designated for men, "I was brutally attacked by [California Department of Corrections and Rehabilitation] staff. While I was facing a locker with my hands up, two officers tackled me, beat me, struck my head and face repeatedly, pinned me, and called me a 'faggot.' They then continued punching me in the head and placed me in handcuffs to transport me to a medical clinic," she stated.
"On the way to the clinic," she continued, "I was transferred into the custody of two other officers. While I was handcuffed and defenseless, these officers body-slammed me to the asphalt track and dropped their knees and body weight onto my back and head. I was pinned, bleeding from a serious head injury, and unable to inhale. These officers then ordered me to be placed in leg restraints and a spit mask. Afterwards, I was transported to the clinic, where my requests for medical care were ignored for several hours until I was finally transferred to a hospital for emergency care."
As the Bay Area Reporter previously reported, SB 132 was signed into law by Governor Gavin Newsom in 2020 and went into effect the following January. The law allows incarcerated transgender people to ask for a transfer to a state prison or detention center that matches their gender identity.
The law requires that CDCR record each individual's self-reported gender identity, gender pronouns, and honorifics. It also requires CDCR to house transgender people at correctional facilities based on their preference, whether that be by their gender identity or sex assigned at birth. All CDCR staff, contractors, and volunteers must consistently use the gender pronouns and honorifics that the individual has requested in all communications with or regarding them, according to the law.
The plaintiffs insist that SB 132 is too broad and allows anyone to simply state they are a woman in order to transfer to a women's prison.
"You don't even have to claim to be a woman," said Candice Jackson, the plaintiff's attorney. "All you have to do is claim an intersex or nonbinary identity."
Jackson and attorney Lauren Adams of the Women's Liberation Front are representing the four plaintiffs.
Jackson, a lesbian who said she doesn't believe that trans women are women, pointed to a story in the Los Angeles Times which, she said, cited examples of men doing just that.
The story, however, doesn't say that. It does cite instances where prison staffers are "stirring up transphobia" and it also notes that there have been several instances of men attempting to transfer to women's facilities under false pretenses. The story quotes Jasmine Jones, a legal assistant at the Transgender, Gender-Variant, and Intersex Justice Project, who told the Times that SB 132 "should have first focused on those who have transitioned or are in the process of transitioning before allowing for others to transfer."
Jackson acknowledged there is no data on the numbers of female prisoners who have been attacked by trans prisoners who have transferred to women's prisons, however.
The original suit is on behalf of four women who are incarcerated and Woman II Woman, a nonprofit run by formerly incarcerated women. The civil complaint alleges that SB 132 violates parts of the federal Constitution: the Eighth Amendment's prohibition against cruel and unusual punishment; the First Amendment's protections of freedom of speech and religion, because of the pronoun and honorific requirements; and the 14th Amendment's equal protection clause, because the law allegedly "imposes on female offenders increased risks of physical assault."
The suit also alleges violations of the California Constitution's prohibition against cruel and unusual punishment; the protection of freedom of speech; the protection of freedom of religion; the equal protection clause; and protections of the right to privacy.
"There is no application of SB 132 that avoids violating the constitutional rights of the individual plaintiffs, and the other incarcerated women on whose behalf plaintiff Woman II Woman advocates," the civil complaint states.
Woman II Woman, however, was dismissed May 10 from the case by Judge Jennifer Thurston after the organization petitioned for the dismissal. The group, which is still relatively new, had realized that the lawsuit was taking it away from its core mission, said Jackson. With that, it needed to step back, Jackson added.
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