Judge bans male inmates in federal women's prison from 'female-only privacy area,' certain housing

President Trump defended Tucker Carlson's decision to interview alleged antisemite Nick Fuentes, whom Trump hosted at Mar-a-Lago three years ago, threatening to split the conservative movement beyond fallout at the Heritage Foundation.

Now his Justice Department risks dividing the coalition on another issue: incarcerated women seeking to evict male inmates who identify as women from their prisons as fast as possible, and prevent their return.

Senior U.S. District Judge Sidney Fitzwater overruled DOJ objections and proposed a temporary restraining order against the Bureau of Prisons on Monday that prevents Federal Medical Center Carswell in Texas from "housing any male inmate within the general female population in any housing unit" where two female plaintiffs are or will be housed.

FMC Carswell must not allow "any male inmate to enter or remain in any female-only privacy area (including showers, restrooms, changing areas, and dormitory spaces)" to which Rhonda Fleming or Miriam Crystal Herrera has access, "so that plaintiffs are not exposed to male inmates while showering, toileting, dressing, or sleeping," the text reads.

Officials can "reassign male inmates away from plaintiffs’ housing and privacy areas" or "house such inmates in a secure, segregated area at FMC Carswell (including the Hospital Unit or a comparable setting) that preserves access to programming and services while preventing access to female-only privacy areas," the President Reagan nominee wrote.

He gave the parties until noon Wednesday to agree on modified language before he enters the TRO as written, and until Nov. 24 to suggest dates for "an evidentiary hearing on the affirmative defense of exhaustion of plaintiffs’ claims."

The feds appear caught between a rock and a hard place, with a different federal judge blocking Trump's executive order prohibiting male inmates in federal women's prisons while Trump's DOJ argues that Fleming and Herrera jumped the gun by going to court before exhausting administrative remedies, tacitly defending its predecessor's gender identity policy.

Judge Fitzwater's TRO is tailored to fit within the parameters of that injunction against Trump's EO, which does not stop women's prisons from separating male and female inmates in the same facility, as Fleming and Herrera sought, according to journalist Wesley Yang.

It's the first judicial order against such coed housing in women's prisons after years of litigation at state and federal levels, former Supreme Judicial Court of Massachusetts Justice Elspeth Cypher told Just the News, confirming Yang's claim.

"It's a huge win to have any official acknowledgement of the harm caused by these policies, and we hope that other courts start to recognize it as well," legal director Lauren Bone of the Women's Liberation Front, where Cypher serves as secretary, wrote in an email.

The gender-critical radical feminist WoLF has been active in state fights against gender identity prison placement policies but lost its lawsuit against California's law (SB 132) on behalf of female inmates on a technicality last year. 

It's been over a year with no action since the Golden State moved to dismiss WoLF's amended lawsuit, and in the meantime it filed public comments on SB 132's final implementation, with state officials apparently "trying to walk back some of the more egregious aspects of the law" and transgender advocacy groups likely to resist, Bone said.

One of the intervenors in WoLF's SB 132 challenge, male inmate Tremaine Carroll, is scheduled for trial in January on charges of raping female inmates after Carroll's transfer into their prison under SB 132, according to Bone. She noted the judge ordered attorneys "and possibly" witnesses and victims to describe Carroll as a woman.

This fall, the U.S. Court of Appeals for the D.C. Circuit denied WoLF's motion to file a friend-of-the-court brief in the Trump EO challenge because it was late, which WoLF blamed on the trial judge letting the challengers use pseudonyms and hide their prisons. (Cypher detailed the difficulties in a recent presentation.)

The D.C. Circuit ignored women's safety in oral argument, and with WoLF's brief rejected, "there is no longer anything on the record about harms to imprisoned women," Bone said.

Male murderers, rapists housed with women

Fleming had already challenged BOP transgender policy as a violation of her bodily privacy in an earlier lawsuit against the warden of the Federal Corrections Institute Tallahassee, in Florida, when she was housed there, prompting pretrial coverage in The Free Press. U.S. District Judge Mark Walker found BOP policy "not unreasonable" in a bench trial.

The Fleming-Herrera federal challenge to BOP policy is on its fourth amended complaint, filed this month, the docket shows. Both are "non-violent, minimum-security" inmates at FMC Carswell, "the only medical center for female inmates" in BOP, they said.

Thirty-four-year-old Herrera joined the suit on the third amended complaint this summer. WoLF paid the filing fee for the suit, initially filed by 60-year-old Fleming in February, Bone said.

Housing males in a female facility violates the "constitutional and statutory rights to bodily privacy and the free exercise of religion" for women, who are "compelled to shower, undress, sleep, and use toilets in the presence of male inmates," in places where male guards are not ordinarily allowed, the latest version of the suit says.

There is often "no meaningful visual barrier," as in the shower stalls, which have "approximately four-inch gaps around the doors to enable female guards to see into the showers," it says.

"Female inmates are exposed to male genitalia, voyeurism, sexualized harassment, and the constant fear of sexual assault," triggering "acute anxiety, sleeplessness, and lasting psychological harm" for survivors of abuse, it also says. 

The suit cites BOP data obtained via the Freedom of Information Act that shows 51% percent of male inmates who identify as women are incarcerated for sex offenses, "nearly four times higher than the rate of sex-offense incarceration within the general BOP male population."

It identifies nine male inmates by legal name and prison number in FMC Carswell, one of whom shares a block with Fleming, and their convictions including rape and murder.

One killed his wife's lover through "pipe bombing," and another assaulted a federal officer and robbed a bank for his anti-government white supremacist organization. Four more were convicted of sexual offenses against minors and an elderly woman, including "attempted enticement of a minor" and child pornography distribution for Fleming's blockmate.

The suit accuses BOP of retaliation against Fleming and Herrera for asserting their rights, with a chaplain at a previous facility reporting Fleming for referring to a male inmate as a man and officials in July threatening to assign Fleming to a Special Housing Unit cell with a male who had assaulted female inmates, compelling her to choose "suicide watch" instead.

BOP officials threatened to transfer Herrera hundreds of miles away from her Texas-based family after she joined the suit, "without legitimate penological justification and against BOP policy," which showed their "transparent intent to moot this litigation" and spurred the plaintiffs to seek a TRO and permanent injunction.

DOJ's opposition said the legal issues were clear. Neither plaintiff "engaged in the required administrative remedy process before filing suit" under the 30-year-old Prison Litigation Reform Act, so they have "no likelihood of success on the merits of any claim."

Fleming has submitted nearly 500 administrative remedy requests in her 15 years in federal custody and has "satisfactorily navigated the procedural requirements" to exhaust around 40 of them, none involving male inmates, DOJ said. Both plaintiffs claimed the forms weren't given to them, but they have "numerous ways of obtaining grievance forms."

The opposition goes into great detail on the legitimacy of Herrera's floated transfer out of FMC Carswell, which is overcrowded. "This process began long before counsel was appointed and well before Plaintiffs attempted service," DOJ said.