Among the dozens of executive orders that President Donald Trump signed on his first day in office for his second term, one targets transgender people incarcerated in the federal prison system.
The order “defending women from gender ideology extremism and restoring biological truth to the federal government” was fundamentally an attack on transgender people, arguing that “ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women.” The order instructed the attorney general and the secretary of Homeland Security to “ensure that males are not detained in women’s prisons” or immigration detention centers. It went on to mandate that the federal prison system “shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Transgender people make up a tiny fraction of those held in federal prisons, the only prisons that the president has direct authority over. Among the more than 140,000 people in federal prisons and jails, about 2,000 — roughly 1% — identify as transgender, according to Bureau of Prisons data. In 2022, the bureau spent $153,000 — 0.01% of its overall health care budget — on gender-affirming hormone therapy, former Director Colette Peters told Congress.
Peters resigned from her post on Trump’s first day in office this week. It will be up to her replacement, who has yet to be named, to implement Trump’s order. The press office at the Bureau of Prisons did not respond to requests for comment.
Life in prison is dangerous for many, and for transgender people especially so. Not only are they at risk for extortion and assault, they are particularly vulnerable to sexual abuse — a danger that, for trans women, is exacerbated by being held in men’s prisons. Of the 1,300 trans women in federal prisons, only 10 were housed in female prisons in 2023. The bureau’s policies are outlined in the Transgender Offender Manual — which was in effect during Trump’s first presidency and was revised slightly during Biden’s. The manual calls for housing decisions for transgender people to be made on a case-by-case basis.
“This wasn’t a ‘liberal’ thing but just a safe practice that comported with the law,” said Alix McLearen, who led the drafting and implementation of the manual when she oversaw women and special populations at the Bureau of Prisons.
Still, individual cases have given rise to legal challenges. In one case that went to trial in federal court in Tallahassee, Florida, last week, a cisgender woman serving time in federal prison argued that being housed with transgender women — who used shared bathroom and shower facilities with flimsy curtains — violated her privacy. With help from pro bono lawyers, Rhonda Fleming challenged the federal prison system’s transgender housing policy, arguing that the bureau’s approach “resulted in Ms. Fleming exposing her private parts to biological/natal male inmates,” and was unconstitutional.
A federal judge disagreed. U.S. District Judge Mark Walker ruled that Fleming’s privacy was not violated and that, after analyzing the Transgender Offender Manual,“concluded that it is reasonable.”
“These decisions were never made lightly,” said McLearen of the bureau’s housing assignments. “We usually required at least one year of clear conduct, program participation, hormones. No decision about housing was ever made without considering the safety of the staff and all the people in prison.” McLearen retired from the bureau last year.
Amid a culture war targeting gender-affirming medical care, Trump campaigned on a promise to crack down on “gender ideology.” A campaign ad claiming “Kamala [Harris] supports taxpayer-funded sex changes for prisoners” is credited with helping Trump make inroads among Democratic voters.
The language in Trump’s new order was similar to a controversial Florida law that, over the last year, has upended gender-affirming care for hundreds of transgender people in the state’s prisons and sparked an ongoing legal challenge.
Jeffrey Bristol, a lawyer for Fleming, said he is optimistic now that Trump has signed his executive order that the bureau will change its policies. “We’re just looking forward to a new Transgender Offender Manual, hopefully sooner rather than later, that really ensures the safety and constitutional rights of everybody in all prisons,” Bristol said. He acknowledged that Trump’s order — which on its face requires the bureau to house all trans women in men’s prisons — could be dangerous if it’s not handled well. Federal law prohibits segregated prison units for lesbian, gay, bisexual, transgender or intersex people except when they’re court-ordered.
“The answer, I don’t think, would be to throw them into the general population, because that would probably result in some pretty horrific situations,” Bristol said. “It’s a thorny situation.”
Beyond the issue of housing for transgender people, rewriting the rules to prohibit gender-affirming health care will also be thorny.
David Fathi, director of the National Prison Project at the American Civil Liberties Union, said that when Bureau of Prisons administrators craft a new policy, they will be “skating on very thin constitutional ice.”
The Supreme Court has said prison officials can’t show “deliberate indifference” to a substantial risk of serious harm — and lower courts have found again and again that failing to adequately treat gender dysphoria does exactly that.
“The rule is, there has to be an individual medical determination of what each patient needs as a medical matter,” Fathi said. “Governments simply may not say in advance, ‘We are not going to provide gender-affirming care,’ any more than they could say, ‘We’re not going to provide insulin,’ or, ‘We’re not going to treat cancer.’”
