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Oregon Transgender Prisoner Must be Housed Alone or with Other Transgender or Non­Cisgender Prisoners

by Mark Wilson

An Oregon state court held on May 28, 2019 that prison officials were deliberately indifferent to a transgender prisoner’s physical safety when they failed to house her in a single cell or with other transgender or non-cisgender (gender non-conforming) cellmates.

Brandy Hall, 34, formerly known as Brandon Nelson, entered prison in 2007 as a male. Hall was transferred to the Two Rivers Correctional Institution in Umatilla in 2009 and remained there until being transferred to the Oregon State Correctional Institution.

While incarcerated, Hall was diagnosed with gender dysphoria, a condition in which people identify as a gender different from the one they were assigned at birth. Hall has presented as a woman since 2014 and has undergone hormone therapy since 2016, according to court records. As a result of that therapy, Hall has female physical features, including breasts. She also has changed her name to fit her gender identity.

In September 2018, Hall was approved for gender reassignment surgery; as of June 2019, however, she had not received surgery.

Hall also was recommended for transfer to Oregon’s only women’s prison, but that recommendation was denied by the Oregon Department of Corrections’ (ODOC) Transgender and Intersex Committee (TAIC). The denial was based in part on her convictions for sex crimes involving underage female victims.

Claiming that confinement in a men’s prison creates a constant threat to her physical and psychological safety, Hall said she “is regularly subjected to physical, mental and emotional harassment by ODOC staff and prisoners on the basis of her gender.” She also claimed that “she has been molested by prisoners and guards while in ODOC custody.”

She “cannot ever be safe in a male prison,” Hall argued, saying she “is not provided a completely private environment to shower or dress, and is subjected to catcalls and physical and emotional harassment by other prisoners, who can view her naked while showering and dressing.”

A male guard cupped her breasts and groped her while performing an April 2018 search, according to Hall. She “reported the incident to a Prison Rape Elimination Act (PREA) counselor, but no action was taken.” She also complained that she had “been improperly disciplined for attempting to protect herself from physical and mental harassment by other prisoners and staff.”

Throughout her incarceration, Hall has been housed in cells with male prisoners. She said it was “only a matter of time before she is attacked and raped if she remains in a male prison.”

Attorney Tara Herivel represented Hall in a state habeas corpus proceeding, claiming that ODOC officials improperly refused to schedule her gender reassignment surgery and refused to house her in a women’s facility. The complaint alleged that those failures constituted deliberate indifference to her serious medical needs and safety, in violation of the Oregon and U.S. Constitutions. Hall also argued she was denied due process and equal protection of the law when prison officials treated her differently than “her similarly-situated counterparts.”

Hall “is a woman in a male prison and I think at a very basic level, that is understood as being extremely dangerous and problematic by most people,” Herivel said. “But this is an area where as we’re expanding our ideas as a culture of what gender identity is, it’s also really expanding in the legal arena and I think this is a very important first step.”

The circuit court agreed, finding that prison officials were deliberately indifferent to Hall’s safety in violation of the Eighth Amendment “by not housing Plaintiff, while in a male prison, in a single cell or with a transgender or non-cisgender cellmate.” Accordingly, the court ordered that so long as Hall is held at a men’s facility, she must be housed “in a single cell or with a transgender or non-cisgender cellmate.”

The court further ordered that the “ODOC may not use Disciplinary Segregation Unit or Administrative Segregation cells to single cell Plaintiff for the purposes of complying with terms of this judgment.” Finally, “ODOC staff shall not verbally or sexually harass Plaintiff,” and the “ODOC must do everything within their ability to prevent other inmates from verbally or sexually harassing Plaintiff.”

The court found that on the record before it, the ODOC was not required to “transfer Plaintiff to a women’s prison[],” but that Hall was “not precluded from requesting” a future transfer through TAIC. Further, Hall had failed to prove that prison officials were deliberately indifferent by refusing to transfer her or by disciplining her. The court also concluded that she failed to show prison officials had violated her due process or equal protection rights.

Claiming that the ODOC incarcerates 77 transgender or intersex prisoners, spokeswoman Jennifer Black said the department is developing more comprehensive policies to address the safety, medical care and housing needs of those offenders.

Attorney Herivel acknowledged the ODOC’s efforts, but noted that other states are doing more. She pointed specifically to Connecticut, where a recently-enacted law requires prisoners to be housed based on their gender identity. [See: PLN, Jan. 2019, p.22].

“It shouldn’t have to take a large-scale problem to occur for the system to change,” Herivel declared. But, sadly, that is usually the case. See: Nelson v. Bowser, Umatilla County Circuit Court (OR), Case No. 18CV24920. 

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Additional source: The Oregonian/OregonLive

Related legal case

Nelson v. Bowser