The Bureau of Prisons on Friday laid out strict new guidelines for the treatment of transgender inmates to comply with President Trump’s executive order on gender recognition, including ending special procedures for pat-down searches and barring prisoners from purchasing the underwear of their choice.
The guidelines, dated Feb. 21 and obtained by The New York Times, show the extraordinary steps that the federal government will have to take to comply with the president’s edict that there are only two sexes, established at conception, and that men who “self-identify as women” pose a threat to the safety of women.
The prison memo was issued on the same day that a new group of transgender women rushed to court to try to stop their transfer from all-female prisons to all-male facilities, saying that the move would place them at an elevated risk of physical and sexual violence. Already, a preliminary injunction issued Feb. 18 had blocked the transfer of three transgender women to male prisons.
But the new lawsuit said the bureau informed the trans women not participating in earlier suits that they were to be transferred to male prisons “imminently.”
The Bureau of Prison’s two-page memo details the treatment expected of transgender inmates at length. The guidelines require prison staff to refer to inmates by “their legal name or pronouns corresponding to their biological sex.”
It said that transgender women would no longer be shielded from pat-down searches by male guards and that they would no longer be permitted to buy bras and other women’s clothing at the commissary. Public funds would no longer be used to purchase items that bind breasts, remove hair or allow trans men to use urinals.
“Individuals will not be referred for gender affirming surgeries,” the memo said. But prisoners who were receiving hormones and other gender-related medical and mental health care before Mr. Trump’s order would continue to receive it because of a court order, it said.
“The safety and mental health of those affected remains a top priority, and it is critical that these changes are carried out with the utmost care and sensitivity,” the memo said.
Of around 150,000 federal prisoners, fewer than 1,600 are trans women, according to court documents filed by the government. About two dozen of those are currently housed in women’s facilities — the rest are in men’s facilities, but may have been receiving accommodations such as being searched only by female guards or being allowed to purchase smocks and women’s undergarments. About 700 prisoners are trans men.
Advocates for transgender prisoners say that more trans women should be housed in women’s units, but so few are in part because approval for such transfers is already difficult and cumbersome. Safety procedures must be considered for both the individual and the facility, and mental and physical health evaluations are required.
Only in a very small number of cases will a trial judge specify at sentencing that the defendant is to be placed in a women’s prison.
But transgender people are particularly vulnerable in prison, a fact acknowledged in a landmark 1994 Supreme Court decision that affirmed that prison officials are responsible for ensuring their safety. Federal data show that transgender prisoners are 10 times as likely as other inmates to report being sexually abused.
Under regulations linked to a 2003 statute, the Prison Rape Elimination Act, housing decisions for inmates must take into account risk assessments that include transgender status. But each administration has provided different guidance to the Bureau of Prisons for carrying out the assessments.
Critics have argued that allowing transgender women to be housed in women’s prisons threatens the privacy and safety of the other inmates.
In a Jan. 20 executive order, the president called for those regulations to be amended “as necessary,” usually a lengthy process but one that Mr. Trump has tried to short-circuit repeatedly.
In a series of executive orders targeting transgender Americans, Mr. Trump has sought to withhold federal funds from schools that allow trans girls and women to play on girls’ and women’s sports teams, to bar trans people from serving in the military and to prevent trans people from designating their gender identities on passports.
But those wishes are running up against significant complications. Friday’s bureau guidance, for instance, said Mr. Trump’s executive order “does not supersede or change BOP’s obligation to comply with federal laws and regulations,” including the Prison Rape Elimination Act.
That appeared to put the Bureau of Prisons at cross-purposes with the executive order. Courts have repeatedly held that prison systems must provide transgender prisoners with gender-related health care. In the 2022 fiscal year, the Bureau of Prisons spent $153,000, or 0.01 percent of its total health care expenses, on hormone therapy, according to information provided to Congress by Colette Peters, then the director of the bureau.
Mr. Trump’s order said all prisoners should be housed according to their sex at birth, and that gender-related medical care should be halted. In response, several trans women have filed lawsuits, arguing that it would cause them to face an elevated risk of physical and sexual violence and exacerbate their diagnosed mental health conditions.
One, suing under the pseudonym Jane Jones, has undergone multiple surgeries including a vaginoplasty, legally changed her name and sex markers on her identification documents and “has always been treated as a woman by federal correctional officials,” according to her lawsuit. “A woman with full female anatomy has no place in a men’s facility,” Ms. Jones wrote in an affidavit.
In another case, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia issued a preliminary ruling blocking the three plaintiffs’ transfer to a men’s facility, saying they had “straightforwardly demonstrated that irreparable harm will follow.”
But this week, the Bureau of Prisons appeared to be moving forward with plans to relocate the others, according to the newest lawsuit.
While the transfers likely would not be seen as directly flouting the judge’s order, David Super, a Georgetown law professor, said they would clearly violate the spirit of Judge Lamberth’s ruling that such a transfer would most likely violate the Constitution’s ban on “cruel and unusual punishment.”
“Historically, administrations do not do things that an active court order declares unlawful,” he said.
The Bureau of Prisons did not immediately respond to a request for comment.
Jennifer Levi, an attorney for the plaintiffs, said Judge Lamberth had made it clear that moving the prisoners was likely a violation of their right to be kept safe while incarcerated and to be given adequate medical care.
“Any reasonable administration would respond by stopping these dangerous transfers, rather than continuing to place women at such grave risk,” Ms. Levi said.
