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Washington Federal Court Grants Preliminary Injunction Halting Release of Transgender Prisoners’ Personal Information; Class Certified

by Jayson Hawkins

On April 8, 2021, the Federal court for the Eastern District of Washington issued a temporary restraining order (TRO) to preserve the status quo and halt the release by the Washington Department of Corrections of records containing personal information including documents related to identifying prisoners who are transgender (which the court in this case is using as an umbrella term meant to include gender non-conforming and intersex) as well as records pertaining to sexual history, sexual orientation, genital anatomy, and mental or physical health.

Plaintiff’s had sought the order, which the defendants did not oppose, to ensure that no release of records occurs while the court moves through the process of deciding the case on the merits. Pursuant to a local rule (7(i)(2)(c)), the court found that the plaintiffs had shown good cause to receive an expedited review.

Federal Rule of Civil Procedure 65 allows a temporary restraining order to prevent “immediate and irreparable injury.” The analysis involved in granting a temporary restraining order is essentially identical to that in granting a preliminary injunction. To prevail, a plaintiff must demonstrate (1) likelihood of success on the merits; (2) a likelihood of irreparable injury in the absence of injunction; (3) that a balancing of hardships weighs in plaintiff’s favor; and (4) that a preliminary injunction will advance the public interest.

The court may also, in the Ninth Circuit, use a sliding scale under which a temporary restraining order may be issued if there are serious questions going to the merits and the balance of hardships tips sharply in plaintiff’s favor See: Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir, 2011).

The court in this case found that the plaintiffs were likely to succeed on the merits and were likely to suffer irreparable injury in terms of their safety and lives if the records were released. The court also found that the plaintiffs satisfied the balance of equities requirement and that keeping the records confidential served the public interest and did not prejudice the defendants.

As a result, the court granted the TRO which stopped defendants from releasing any records until the court heard plaintiff’s petition for preliminary injunction (PI). On May 17, 2021, the court provisionally certified a class in the case and granted the PI, which states that defendants in the case are “enjoined from releasing any records (including names and prisoner identification numbers) concerning or that identify the gender identity, transgender status (including non-binary, intersex, and gender non-conforming people), sexual history, sexual orientation, sexual victimization, genital anatomy, mental and or physical health, of the proposed class members (current and past prisoners), including any records concerning transfer requests, discipline, PREA investigations and allegations and reassignment surgery.”

The court order defines the class as “all individuals identified as transgender, non-binary, gender non-conforming, and/or intersex in records in possession of the [DOC] who are currently or were formerly incarcerated by the [DOC],” with the class being subdivided into current and former prisoners.

On June 30, 2021, the court ordered class counsel to publish a notice flyer on the website dedicated to this matter, and Defendants were directed to post the notice flyer in all Washington DOC facilities and community supervision offices that are “easily accessed by members of the class and subclasses.” The state has appealed. See: John Doe 1 v. Washington State Department of Corrections, USDC, E.D. Wash., Case No. 4:21-cv-05059-TOR. 

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Related legal case

John Doe 1 v. Washington State Department of Corrections