Trans woman challenges transphobic Trump order in court

A transgender woman who is in a federal women's prison has sued the Trump administration over the “two sexes” executive order, saying it will require her to be housed in a men’s prison, putting her in danger and violating her constitutional rights.

The woman, identified by the pseudonym Maria Moe, filed the suit Sunday in U.S. District Court in Massachusetts. It names Donald Trump as a defendant, along with Acting Attorney General James R. McHenry III and William W. Lothrop, the acting director of the Bureau of Prisons. She is represented by GLBTQ Legal Advocates and Defenders, the National Center for Lesbian Rights, and the law firm of Lowenstein Sandler.

Moe was placed in solitary confinement last Tuesday, the day after Trump signed the order in his first day as president, and prison officials told her she would be transferred to a men’s prison. The name of the prison where she is currently housed has been redacted.

“If Maria Moe is transferred to a men’s facility, she will not be safe,” the complaint states. “She will be at an extremely high risk of harassment, abuse, violence, and sexual assault. She may be subject to strip searches by male correctional officers. She may be forced to shower in full view of men who are incarcerated. And she will predictably experience worsening gender dysphoria, which can lead to serious harm, including dramatically increased rates of suicidality and depression.”

“Maria Moe is also at imminent risk of losing access to the medical care she needs to treat her gender dysphoria,” it continues. “Executive Order 14166 singles out transgender people to deny them essential healthcare, including medications that BOP may continue to provide to nontransgender people. The Order categorically bans transgender healthcare regardless of medical necessity. It prohibits prison medical providers from treating transgender patients’ gender dysphoria on an individual basis according to independent medical judgment. This blanket ban will deprive Maria Moe of essential medication she has taken continuously since she was a teenager, putting her at high risk of serious harm.”

“The timing, content, and context of Executive Order 14166 demonstrate it was motivated by and implements the same discriminatory animus Defendant Trump repeatedly expressed during his campaign, rather than any legitimate government purpose,” the suit notes.

The order and Moe’s pending transfer violate the due process clause of the Fifth Amendment to the U.S. Constitution, which “prohibits unwarranted discrimination by the federal government,” the complaint explains. They also violate the Eighth Amendment, which bans cruel and unusual punishment, and the Administrative Procedures Act, which sets forth how federal agencies should adopt rules.

“For BOP’s transfer decision to be lawful, amendments to [the Administrative Procedures Act] would have to be made through notice-and-comment rulemaking,” the suit says. “Section 4(a) [of the executive order] directs the Attorney General to make such an ‘amendment,’ but no amendment has been made at this time. BOP’s decision to transfer Maria Moe prior to a valid amendment … was made without observance of procedure required by law.” Since 2012, the U.S. Department of Justice has required that assignment of prisoners take into account their risk of sexual assault.

Further, the decision is “arbitrary and capricious,” according to the complaint.

The suit seeks preliminary and permanent injunctions blocking enforcement of the relevant sections of the executive order. Moe’s lawyers have also sought a temporary restraining order, which would block it for a brief period before a preliminary injunction is issued.

The case was sealed shortly after it was filed, Shannon Minter, vice president of legal at NCLR, told The New York Times. Sealing means it will not be available to the public. However, as of this article’s publication, the suit is still viewable at CourtListener.com and LawDork.com. It has been assigned to U.S. District Judge George O’Toole Jr., who was appointed by President Bill Clinton.

The Times contacted the Department of Justice, which declined comment on the suit.