The question is what to do with transgender women in prison: should they be housed separately, in the men's prison, or in the women's prison. The district court held that Oregon could not presumptively house these inmates in the men's prison without an individualized safety assessment and, inter alia, prohibited the prison from housing them with cisgender cellmates with a history of sexual violence.
The Ninth Circuit appeal was assigned to Judges Collins, VanDyke, and Tung. It's hard to imagine a worse panel for the plaintiffs, so I was not surprised in the slightest about how the case came out: reversed, class decertified, mandate issued immediately.
I was, however, somewhat surprised that Judge Tung seems to have deliberately designed his opinion to be offensive.
Here's the first sentence of the opinion, for example:
"The district court in this case issued a class-wide preliminary injunction requiring (among other things) that the State of Oregon presumptively assign more than a hundred “transgender women” prison inmates (male inmates who claim to be female) for placement in the only state-run women’s prison in Oregon."
You'll notice that the term "transgender women" is placed in quotes. On the theory, I assume, that no such thing actually exists. Nor is this an isolated occurrence. The next sentence, for example, describes the plaintiffs as -- and the quotes here are in the original -- "transgender" inmates. That continues throughout the opinion.
You'll also note the description in the first sentence that "transgender" women are "male inmates who claim to be female." That's certainly a value neutral description, right? Definitely gives that party to a litigation the respect they deserve.
I understand that Judge Tung, and presumably the other judges on the panel, has strongly held personal beliefs about transgendered individuals. But the pervasive language of the opinion serves no legitimate purpose other than to offend.
I have my own beliefs, for example, about the qualities of particular member of the judiciary. But I would never say that "Judge" Tung wrote a particular opinion, or describe someone on that bench as an individual who "claims to be a judge."
During the Jim Crow era, segregationists used to use scare quotes like this to describe minorities; they'd refer to a Black "lawyer" or the Black "doctor" as a way of denigrating their status. I am profoundly disappointed to see a similar and entirely unnecessary tactic employed in a Ninth Circuit opinion today.
