Doe v. McHenry

• Court: District Court, District of Columbia
• Decided: February 4, 2025
• Docket: Civil Action No. 2025-0286
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE, et al.,

Plaintiffs,

v. Case No. 1:25-cv-286-RCL

JAMES R. MCHENRY, III, in his official capacity as Acting Attorney General of the United States, et al.,

Defendants.

ORDER

I. Background

The plaintiffs are three male-to-female transgender women in the custody of the Bureau of

Prisons (“BOP”) and housed in female penitentiary facilities. Compl. ¶¶ 3, 7, 10, ECF No. 1.

Plaintiffs allege that they each suffer from gender dysphoria, a condition marked by significant

distress and a host of physiological and psychological symptoms when a person lives in a manner

conforming to their biological sex. Id. at ¶ 35. For several years before and including their time

in BOP custody, the plaintiffs have been prescribed and have generally received hormone therapy

to treat their gender dysphoria. Id. ¶¶ 3, 7, 10.

On January 20, 2025, President Donald Trump signed an Executive Order which provides,

in pertinent part:

Sec. 4(a) (the “Transfer Provision”): “The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s detention centers, including through amendment, as necessary, of Part 115.41 of title 28, Code of Federal Regulations and interpretation guidance regarding the Americans with Disabilities Act.

Sec. 4(c) (the “Medication Provision”): “The Attorney General shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical

1 procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

Exec. Order 14168, Defending Women from Gender Ideology Extremism and Restoring

Biological Truth to the Federal Government, 90 Fed. Reg. 8615 (Jan. 20, 2025) (the “Executive

Order”). Shortly after the Executive Order was signed, all three plaintiffs were alerted of BOP’s

intention to transfer them to a male penitentiary. Compl. ¶¶ 25, 27, 29–30. All three have since

been returned to the general population at their respective facilities, but the BOP continues to

represent that they will soon be transferred. Id. ¶¶ 28, 33. It is not alleged that the BOP has

withheld the plaintiffs’ hormone therapy medications.

Plaintiffs bring this suit, alleging that the Executive Order and its enforcement against the

plaintiffs violate the Eighth Amendment, the equal protection principles embodied within the Due

Process Clause of the Fifth Amendment, and the Administrative Procedure Act (“APA”). Id.

¶¶ 56–98. The plaintiffs have moved for a temporary restraining order (“TRO”) or preliminary

injunction to prevent the defendants from enforcing the Executive Order against them during the

pendency of their claim. See Unredacted Mot. for Temporary Restraining Order, ECF No. 13.

The defendants have filed an opposition to that Motion. See Gov’ts Opp’n, ECF No. 11. On

February 4, 2025, the Court held a hearing, during which both parties voiced their arguments for

and against the issuance of a TRO. The Motion is now ripe for the Court’s review. For the reasons

that follow, the request for a temporary restraining order is GRANTED on the narrow grounds of

the plaintiffs’ Eighth Amendment claims. Because the plaintiffs’ Eighth Amendment claims are

sufficient unto themselves to sustain a TRO, the Court will take no position on the merits of the

plaintiffs’ equal protection or APA claims at this time.

2 II. Legal Standard

A TRO or preliminary injunction should be granted if the movant meets its burden to show

that 1) the movant is likely to succeed on the merits; 2) the movant is likely to suffer irreparable

harm unless preliminary relief is granted; 3) the balance of the equities favors a TRO or preliminary

injunction; and 4) that a TRO or preliminary injunction is in the public interest. Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Courts in this Circuit have adopted a sliding scale

approach to the TRO analysis, whereby a relatively strong showing on one of these factors may

partially offset weakness in another, although some non-speculative showing of irreparable harm

is essential. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

Where, as here, the Government is a party, the latter two factors of the preliminary analysis merge

into one, because the interest of the government is taken to be identical to the interest of the public.

Nken v. Holder, 556 U.S. 418, 435 (2009).

III. The Court Has Jurisdiction to Entertain the TRO Request

The defendants raise two jurisdictional defenses. First, the defendants argue that any legal

objection to the Transfer Provision and all APA claims are statutorily foreclosed. Specifically, the

Prison Litigation Reform Act provides that “[t]he Bureau of Prisons shall designate the place of

the prisoner’s imprisonment” and that “[n]otwithstanding any other provision of law, a designation

of a place of imprisonment under this subsection is not reviewable by any court.” 18

U.S.C. § 3621. Moreover, 18 U.S.C. § 3625 dictates that the APA “do[es] not apply to the making

of any determination, decision, or order under this subchapter . . . .”

The defendants may be correct that these statutory provisions foreclose any APA

challenges to facility designations and transfer decisions. See Brown v. Holder, 770 F. Supp. 2d

363, 365–66 (D.D.C. 2011) (collecting cases from this and other districts for the proposition that

federal courts lack jurisdiction to hear APA challenges to BOP facility designations). The Court

3 need not reach that issue conclusively, because the Court holds, in any event, that these provisions

do not divest the Court of jurisdiction to entertain constitutional claims arising from BOP facility

designations. “[W]here Congress intends to preclude judicial review of constitutional claims its

intent to do so must be clear . . . to avoid the ‘serious constitutional question’ that would arise if a

federal statute were construed to deny any judicial forum for a colorable constitutional claim.”

Webster v. Doe, 486 U.S. 592, 603 (1988) (quoting Weinberger v. Salfi, 422 U.S. 749, 762 (1975)).

Indeed, this Court has held before that 18 U.S.C. §§ 3621 and 3625 preclude judicial review of

“BOP ‘determination[s], decision[s], or order[s]’ as to a prisoner’s place of imprisonment,” but do

not “explicitly preclude[] review of constitutional claims based on these or similar decisions.”

Royer v. Federal Bureau of Prisons, 933 F. Supp. 2d 170, 181–82 (D.D.C. 2013) (Lamberth, C.J.).

Webster compels that this Court adopt a narrow reading of these statutory provisions. Without

prejudice to the question of whether they strip the Court of jurisdiction to entertain statutory

challenges arising from BOP facility designations, they are not sufficiently explicit to bar

consideration of constitutional claims.1

The defendants’ second jurisdictional argument is that the plaintiffs have not exhausted

their administrative remedies with the BOP. To exhaust administrative remedies as to any given

complaint, an inmate must follow a four-step process: First; an inmate must attempt to resolve the

problem informally with prison officials; second, if unsuccessful, the inmate may initiate a request

to the warden of their penitentiary facility; third, if unsatisfied by the warden’s response, the inmate

may appeal to the regional BOP director within 20 calendar days; and finally, if the regional

1 The defendants argued at the TRO hearing that the statute was amended to add the nonreviewability clause of 18 U.S.C. § 3621(b) after this Court’s decision in Royer. However, the addition of this language does not alter the Court’s conclusion with respect to its jurisdiction to entertain constitutional challenges arising from BOP facility designations. It would be extraordinary to impute to Congress the intent to completely bar courts from considering claims related to prison facility designations with a constitutional valence. The text of the statute is not sufficiently clear on this point to justify such an extreme conclusion.

4 director does not provide the relief sought, the inmate may escalate the complaint to the BOP’s

general counsel office. DeBrew v. Atwood, 847 F. Supp. 2d 95, 107 (D.D.C. 2012). Undoubtedly,

a statutorily-prescribed exhaustion provision such as the PLRA’s is “mandatory,” and therefore

not “amenable to judge-made exceptions.” Ross v. Blake, 578 U.S. 632, 639 (2016). Indeed,

courts refuse to entertain the argument that “special circumstances” may justify an inmate’s failure

to exhaust, id. at 640; not even facially meritorious constitutional claims are exempt, nor are claims

that the inmate believes—rightly or wrongly—to be futile. Woodford v. Ngo, 548 U.S. 81, 91 n.2

(2006) (rejecting an exception for constitutional claims); Kaemmerling v. Lappin, 553 F.3d 669,

675 (D.C. Cir. 2008) (Sentelle, C.J.) (“Even if an inmate believes that seeking administrative relief

from the prison would be futile and even if the grievance system cannot offer the particular form

of relief sought, the prisoner nevertheless must exhaust the available administrative process.”).

There is, however, a narrow exception to the administrative exhaustion requirement

embedded within the text of the PLRA itself: exhaustion is required so long as administrative

remedies are “available.” Ross, 578 U.S. at 642. The Supreme Court has noted three archetypical

circumstances where administrative remedies can be considered “unavailable” and may therefore

be bypassed: 1) when the administrative scheme is “so opaque that it becomes, practically

speaking, incapable of use”; 2) “when prison administrators thwart inmates from taking advantage

of a grievance process through machination, misrepresentation, or intimidation”; and 3) when “it

operates as a simple dead end—with officers unable or consistently unwilling to provide any relief

to aggrieved inmates.” Id. at 643–44. The “dead end” exception is narrowly construed. If the

BOP is capable of providing some relief, even if it is not the relief that the plaintiff requests,

administrative exhaustion is required. See Booth v. Churner, 532 U.S. 731, 735–36 (2001)

(holding that an inmate seeking money damages for alleged Eighth Amendment violations must

5 exhaust administrative remedies, even though the Pennsylvania Department of Corrections could

not award the monetary relief sought, because it could award other forms of relief).

The plaintiffs have set forth the rare sort of case that fits into the “dead end” exception to

the PLRA’s administrative exhaustion requirement. As detailed below, the plaintiffs claim that

their imminent transfer to a male penitentiary and deprival of their hormone therapy would

inherently work an Eighth Amendment injury. The text of the Executive Order plainly requires

the BOP to perform the allegedly unlawful facility transfer and to withhold the prescribed hormone

therapy drugs. Thus, there is no form of relief that is within the BOP’s discretion to provide and

that would remedy the plaintiffs’ supposed constitutional violations. In that sense, their allegations

are less like Booth, where exhaustion was required because the defendant could offer injunctive

relief in lieu of damages, and more like Kaemmerling. In that case, the plaintiff sought an order

restraining the BOP from collecting DNA samples from him on First, Fourth, and Fifth

Amendment grounds. 553 F.3d at 673. The D.C. Circuit distinguished Booth, writing:

Even under questioning from this court, counsel for the BOP could not articulate a single possible way the prison’s administrative system could provide relief or take any action at all in response to Kaemmerling’s claim that collecting his DNA would violate his statutory and constitutional rights. . . . This is not a situation like that in Booth, where the prison grievance process cannot grant the exact type of relief the inmate seeks or where the inmate believes pursuing the process would be futile because it is unlikely to resolve his complaint. Although the administrative process in Booth could not offer money damages—the exclusive form of redress the inmate sought—it did authorize at least some responsive action on the inmate's complaint of abuse, such as reassigning the abusive guard. Here, the prison grievance process cannot authorize any action on the subject of Kaemmerling's complaint because he challenges the statute's command that BOP collect his DNA sample. Kaemmerling does not complain about the method or timing of collecting the sample, which counsel for the BOP suggested the prison might have authority to change; he complains only about the fact that the BOP will collect his DNA at all, a complaint for which the BOP can offer no possible relief.

6 Id. at 675–676 (internal citations omitted). Just so in the case at hand: the alleged

constitutional violation arises from the forthcoming transfer to a male penitentiary and withdrawal

of hormone therapy, actions which the BOP has no discretion not to take. Under these rare

circumstances, administrative exhaustion is excused; “‘where the relevant administrative

procedure lacks authority to provide any relief,’ the inmate has ‘nothing to exhaust.’” Ross, 578

U.S. at 643 (quoting Booth, 532 U.S. at 736 & n.4).

Satisfied that the Court has jurisdiction to hear the plaintiffs’ TRO request, the Court now

turns to the plaintiffs’ likelihood of success on the merits.

IV. The Plaintiffs Have Established a Likelihood of Success on the Merits of Their Eighth Amendment Claim

The parties dispute what level of scrutiny applies to the plaintiffs’ equal protection and

Eighth Amendment claims. The defendants, relying on Turner v. Safley, argue that “when a prison

regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests,” a standard of review that is deferential to the

Government as compared to the elevated scrutiny that ordinarily attaches to complaints alleging

discrimination based on a suspect classification or the burdening of a fundamental right. 482 U.S.

78, 89 (1987). The plaintiffs retort that later cases, such as Johnson v. California, have applied

heightened scrutiny even to suspect classifications arising in the prison context. 543 U.S. 499, 510

(2005) (holding that Turner is inapplicable in a challenge to the California Department of

Corrections’ “unwritten policy of racially segregating prisoners”).

There is good reason to doubt that Johnson’s cabining of Turner applies to laws that

discriminate among inmates on the basis of sex: Johnson stressed that “[t]he right not to be

discriminated against based on one’s race is not susceptible to the logic of Turner” because that

right need not “be compromised for the sake of proper prison administration.” Id. By contrast,

7 “the segregation of inmates by sex is unquestionably constitutional” because it is reasonably

related to legitimate prison management concerns. Women Prisoners of Dist. of Columbia Dep’t

of Corrections v. Dist. of Columbia, 93 F.3d 910, 926 (D.C. Cir. 1996). Indeed, the sole case that

the plaintiffs cite where heightened scrutiny was applied to a law discriminating among inmates

by sex is Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). The Pitts Court was careful to

distinguish Turner, noting that Turner “applies to cases involving regulations that govern the day-

to-day operation of prisons and that restrict the exercise of prisoners’ individual rights within

prisons,” whereas heightened scrutiny was appropriate in cases “challeng[ing] general budgetary

and policy choices made over decades in the give and take of city politics.” Id. at 1453–54. The

case at hand appears to more nearly resemble Turner than Pitts.

However, the Court need not reach any firm conclusion about Turner’s effects on the

plaintiffs’ equal protection claims, because it is beyond peradventure that the Supreme Court

“[has] not used Turner to evaluate Eighth Amendment claims,” which are adjudicated “under the

‘deliberate indifference’ standard, rather than Turner’s ‘reasonably related’ standard.” Johnson,

543 U.S. at 511. Under this standard, as the Court will now explain, the plaintiffs have

demonstrated a sufficient likelihood of success to justify a TRO at this stage.

To prove an Eighth Amendment violation based on theories such as failure-to-protect or

deliberate indifference, a plaintiff must show that both an objective and subjective element are

met: the plaintiff must be confronted with an “objectively intolerable risk of harm,” and prison

officials must knowingly or recklessly subject the plaintiff to such a known risk. Farmer v.

Brennan, 511 U.S. 825, 839–40, 846 (1994). With respect to the transfer provision, the plaintiffs

cited to various government reports and regulations recognizing that transgender persons are at a

significantly elevated risk of physical and sexual violence relative to other inmates when housed

8 in a facility corresponding to their biological sex—which the defendants do not dispute. See

Compl. ¶ 44. The plaintiffs further claim that placement in a male penitentiary by itself will

exacerbate the symptoms of their gender dysphoria, even if they are not subject to physical or

sexual violence in their new facility—whether because they will be subject to searches by male

correctional officers, made to shower in the company of men, referred to as men, forced to dress

as men, or simply because the mere homogenous presence of men will cause uncomfortable

dissonance. See Compl. ¶¶ 5, 44. And with respect to the medication provision, the plaintiffs have

also provided an affidavit from a physician explaining the numerous and severe symptoms that

may arise from failure to treat gender dysmorphia, effects which the defendants likewise do not

contest. See generally Aff. of Dr. Frederic Ettner, ¶¶ 7–8, 10, 14–15, Mot. for TRO Ex. 6, ECF

No. 13-6. Nor do the defendants dispute the plaintiffs’ allegations that the BOP is subjectively

aware that transferring the plaintiffs to a male penitentiary would substantially increase the

likelihood of them experiencing this parade of harms; indeed, the government resources and

regulations to which the plaintiffs gesture in their complaint strongly suggest the requisite

awareness on the part of the BOP.

The defendants’ only substantial retort to these arguments is that the matter is not yet ripe

for the Court’s review because the BOP has neither stated which type of facility the plaintiffs will

be transferred to, nor formulated its new policy on hormone therapy pursuant to the Executive

Order. Neither of these arguments is persuasive. The plain text of the Executive Order affords

the BOP no discretion to keep the plaintiffs in a female penitentiary, nor to continue providing

hormonal therapy to help them conform physically to their non-birth sex. To reiterate, the

plaintiffs’ alleged constitutional harms would arise entirely and narrowly out of their placement in

a male penitentiary and the denial of their hormone therapeutics. Though the BOP may have some

9 discretion in formulating new policies with respect to transgender inmates—e.g., whether they

should be housed in high- or low-security facilities or in segregated housing—the Executive Order

plainly leaves the agency with no discretion with respect to these actions. The Court is therefore

satisfied that the plaintiffs’ Eighth Amendment claims are sufficiently “fit . . . for judicial decision”

at this time, and that the plaintiffs have adequately demonstrated that “hardship” will flow from

“withholding court consideration,” as to justify pre-enforcement review. Abbott Lab’ys v.

Gardner, 387 U.S. 136, 149 (1967).

It is, of course, possible that further briefing of the constitutional issues at the center of this

dispute, or factual discovery, will eventually yield a different outcome. But the plaintiffs, through

their largely undisputed factual allegations and proffered affidavits, have met their burden to show

a likelihood of success on the merits. Therefore, the first TRO factor is satisfied.

V. The Remaining TRO Factors Favor the Plaintiffs

Plaintiffs have straightforwardly demonstrated that irreparable harm will follow if their

TRO request is denied. This is so because “a prospective violation of a constitutional right

constitutes irreparable injury . . . .” Davis v. Dist. of Columbia, 158 F.3d 1342, 1346 (D.C. Cir.

1998). And this is to say nothing of the substantial harms that plaintiffs have plausibly stated,

through affidavit, will follow if the plaintiffs are denied their hormone therapy. See generally

Ettner Aff.

Moreover, the balance of the equities and the public interest favor the plaintiffs. Even if

the Court credits the Executive Order’s representation that housing biological males in female

penitentiaries has some deleterious effect on privacy and security, by the defendants’ own

admission, there are only about sixteen male-to-female transgender women housed in female

penitentiaries, including the plaintiffs. Stover Decl. ¶ 6, Gov’s Opp’n Ex. 1, ECF No. 11-1. And

the defendants have not so much as alleged that the plaintiffs in this particular suit present any