by Greg Piper
Three days after a federal judge dismissed a challenge to a California law that lets inmates with intact male genitalia and hormone levels choose women’s prisons based on gender identity, prosecutors laid out their evidence for rape charges against an incarcerated male transferred under that law, whom the judge also allowed to intervene in defense of SB 132.
U.S. District Judge Jennifer Thurston “clearly didn’t know about this rape case coming through the state court system” going back to March, Executive Director Sharon Byrne of the Women’s Liberation Front, which sponsored the lawsuit by female inmates Janine Chandler, Krystal Gonzalez, Tomiekia Johnson and Nadia Romero, told Just the News on Monday.
Byrne said WoLF is mulling its options in response to the President Biden appointee’s ruling.
“We can amend the complaint for some of the claims, and for some of the defendants,” but otherwise they must appeal to the 9th U.S. Circuit Court of Appeals, she said.
“Case dismissed without considering constitutional arguments after years-long delay,” WoLF said in an email blast Friday that pointed to its press conference earlier in the day “to raise awareness that rapes are indeed occurring within women’s custody facilities” under SB 132 by incoming males with “prior sexual assaults.”
WoLF joined with Woman II Woman, an ex-offender nonprofit that withdrew from the SB 132 challenge two years ago, outside Tremaine Deon Carroll’s preliminary hearing on two charges of forcible rape and one of “dissuading a witness from testifying.”
Byrne said advocacy group Women Are Real attended as well.
Gender-critical news organization Reduxx posted a portion of Carroll’s criminal complaint, which is not available in the online docket, and shared the full document with Just the News. Madera County prosecutors allege Carroll raped a female identified as Jane Doe “on or about” Jan. 30.
Carroll transferred to the Central California Women’s Facility in August 2021, seven months after SB 132 took effect and two decades into a 25-years-to-life three-strikes prison sentence.
The inmate filed “dozens” of complaints alleging “mistreatment, discrimination, and even sexual abuse” by California Department of Corrections and Rehabilitation employees, using male pronouns in the “vast majority,” before the law took effect, according to Reduxx‘s review of Carroll’s incarceration history.
Fourth-wave feminist publication 4W identified Carroll’s alleged victim by the pseudonym “Natalie,” who had been Carroll’s cellmate “for just a few days when she says he attacked her in the shower and raped her.”
The Transgender Legal Center, ACLU of Southern California and Lambda Legal successfully represented Carroll in a motion to intervene by transgender inmates, which Thurston’s ruling cites. They didn’t respond to queries Monday on how they now view representing Carroll, who has been returned to a men’s prison.
“I know what it feels like to live in fear and to carry the weight of past abuse by men,” Carroll, identified as “Tremayne,” said in the May 9, 2022 declaration. “Because I’ve lived it, I can sympathize with the Plaintiffs in that regard. But I am not a threat to them.”
Mental-health publication MindSiteNews published a series of interviews with transgender prisoners including Carroll last fall.
Thurston’s May 14 ruling lays out a blueprint for states that want to insulate themselves from legal challenges to housing self-identified transgender women in women’s prisons: create an administrative process to approve transfers on a case-by-case basis before a broader statute and take care not waive legal immunity under the 11th Amendment.
Attorney General Rob Bonta’s office didn’t argue CDCR had immunity against the plaintiffs’ federal claims, just their state claims. One of his arguments was that incarceration with a person of the opposite sex was like sharing a cell with someone of another race.
But Thurston (pictured above) raised the issue of her own volition, or “sua sponte,” citing 9th Circuit precedent from last year that waiver of 11th Amendment immunity and consent to federal jurisdiction “must be unequivocally expressed,” not “implied.”
It’s irrelevant that “CDCR has appeared and defended this action through the filing of a motion to dismiss,” the judge said.
Kicking off several pages of lengthy footnotes, the judge said she can’t redress the plaintiffs’ stated grievances because the law simply expanded the scope of an administrative process predating SB 132 by at least three years.
Redressability “requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power,” Thurston wrote.
Restoring the “pre-SB 132 status quo” under which males lived in women’s prisons “only on a case-by-case basis involving objective factors relevant to women’s safety” – conditions that were eliminated by the law – would require Thurston to order CDCR to “identify, locate and remove” anywhere from two dozen to a few hundred inmates, a separation-of-powers problem.
That would also go further than what the plaintiffs ask for – an injunction against “further enforcing or implementing” the law, not the pre-SB 132 regulations themselves – leaving current “gender-nonconforming incarcerated individuals” at CCWF, according to the judge.
Thurston likewise has no power to redress claims that CDCR officials violated the First Amendment rights of plaintiffs by changing male references in their administrative grievances about transgender inmates to female references, she said.
The plaintiffs repeatedly made allegations “not sufficiently particularized” to their own injury, including increased burdens on prison staff to deal with male inmates, female inmates who set “sleep schedules” to guard against male rape and a speculative fear that the prison will cut down the only trees for inmates so males cannot make them into shivs, Thurston wrote.
They also “cannot plausibly allege that CDCR has motivated – nor is currently motivating – incarcerated, transgender individuals to sexually harass and assault” them, and they don’t, because it would be “untethered” from the law itself, the judge said.
She rejected their 8th Amendment claim of cruel and unusual punishment due to failure to offer factual support for the alleged “substantially increased risk of sexual” harassment and assault from transgender inmates. Simply citing past assault isn’t enough either, Thurston said.
The publication 4W cited a 2021 Bureau of Prisons report that found half of male inmates identifying as women are sex offenders, and CDCR’s own figures that a third of males seeking transfers to its women’s prisons are as well.
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Greg Piper has covered law and policy for nearly two decades, with a focus on tech companies, civil liberties and higher education. He joined Just the News from The College Fix, where he trained college students in journalism and covered the biggest controversies on campus, from free speech and academic freedom battles to sexual misconduct proceedings and litigation.
Background Photo “Courtroom” by ohioduidefense.
