The anti-LGBTQ Alliance Defending Freedom is putting a hold on its legal battle to force the federal prison system to house all transgender women in men’s prisons — but it could revive the effort.
The ADF, which has represented antigay and anti-trans clients at the Supreme Court, had joined a lawsuit brought by a group of cisgender women inmates at a federal prison in Fort Worth, Texas. The women said that being housed with trans women constituted “gender discrimination” and “cruel and unusual punishment.” They filed the suit in 2016, and ADF joined it in 2017.
But now, ADF’s clients are no longer in the prison system and Donald Trump’s administration has enacted policies that discourage the housing of trans women in women’s prisons, and cases pending in the Supreme Court may enable broader anti-LGBTQ discrimination — so the ADF isn’t pursuing the matter, at least for now, The Dallas Morning News reports.
“We are no longer actively litigating. All of our clients have left the prison system,” Gary McCaleb, an attorney who recently retired from ADF, told the Morning News Friday. “We’re also closely watching what the Supreme Court is going to do.”
The court in October heard three cases involving anti-LGBTQ discrimination, two brought by gay men, one by a trans woman. The cases turn on whether Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans discrimination based on sexual orientation and gender identity. ADF is involved in one of the cases, representing the funeral home operator that fired an employee, Aimee Stephens, because she is transgender. A decision is expected by June.
The ADF worked with the Trump administration on the new prison policy in an attempt to settle the Texas inmates’ suit; the policy, announced in 2018, now allows trans women to be housed with cis women only in rare cases. It reversed a policy adopted under President Barack Obama’s administration that allowed inmates to be housed according to their gender identity. ADF kept the suit alive, however, as it wanted to ban all housing of trans women with cis women.
But now that all ADF’s clients are out of the system and it’s hoping the Supreme Court decision will go its way, it’s not working on the suit. One of the original women who brought the suit is still pursuing it, without ADF’s help, the Morning News reports; the paper could not reach her for comment.
The ADF may revive its efforts if it doesn’t like the court’s ruling. “We certainly would not give up the fight. We have a strong belief in what makes society thrive,” McCaleb told the paper. “But I can’t predict what the next steps would be.”
But trans people generally don’t thrive in prisons, especially trans women housed with men, LGBTQ rights activists point out. “There are few people more vulnerable in society today than a transgender prisoner,” Gillian Branstetter, media relations manager for the National Center for Transgender Equality, told the Morning News. “A transgender person in prison has 10 times the likelihood of being sexually assaulted by another inmate; they have five times the likelihood of being sexually assaulted by a guard.
“It is not special treatment to be helping people avoid those risks. It is quite literally the prison’s responsibility under the law” as spelled out in the 2003 Prison Rape Elimination Act, she added. “The ADF, for its part, seems solely dedicated to the erasure of transgender people both in a legal sense, and increasingly, in a societal sense.”