A federal judge in Fresno will decide whether to dismiss a lawsuit brought by three formerly incarcerated women who claim a new California law violate the rights and safety of female inmates by forcing them to share prisons with transgender women.
Eastern District Judge Jennifer L. Thurston of Fresno is being asked to rule on whether to dismiss a lawsuit filed against the California Department of Corrections and Rehabilitation (CDCR) over transgender women gaining access to women’s prisons under Senate Bill 132.
SB 132, also known as the Transgender Respect, Agency, and Dignity Act, allows transgender, nonbinary, or intersex inmates to request housing in women’s prisons on the basis of their gender identity and safety concerns.
But three formerly incarcerated women, along with the non-profit Woman II Woman, are alleging in a lawsuit that sections added to the California Penal Code under SB132 violate the rights of incarcerated women to be protected from rape, sexual harassment, and sexual assault by men.
“A lot of these women are Black and at least some of these men are white,” said attorney Lauren Bone, who is representing the plaintiffs. “If this was a prison guard doing this, it would be on every nightly news. It doesn't seem to matter if it's happening to a Black woman because that white man who's doing it says he's a woman.”
One of the plaintiffs, Krystal Gonzalez, alleged that a transgender inmate transferred under SB132 sexually assaulted her. Under the law, it's illegal to place transgender, nonbinary, or intersex inmates in their own cells within a women’s prison.
“They're not even allowed to put them in cells just altogether,” Bone told the Southern California Record. “They are not allowed under the law to be treated differently in any way.”
In his motion to dismiss, filed on April 11, Attorney General Rob Bonta argues that Gonzalez does not allege the cause of the harm was the result of implementing SB132.
“Instead, Plaintiffs file suit merely to prevent the transfer of inmates due to some potential series of future events that are directly attributable to actions by other parties not named in this suit,” Bonta wrote. “Plaintiffs’ allegations fail to plausibly suggest harm resulting from the Defendants’ actions.”
The plaintiffs seek a judicial declaration that SB132 is unconstitutional on its face, as well as under the U.S. Constitution and the California state constitution.
“In the next few weeks, there will be oral arguments in court over whether or not corrections has to answer questions about why women are getting pregnant in prison,” Bone said.
As previously reported, two women incarcerated in a New Jersey correctional facility became pregnant allegedly from sex with a transgender inmate after the state of New Jersey implemented a California-like policy with the assistance of a settlement negotiated by the American Civil Liberties Union (ACLU).
"Our case has no precedence at all for anything like this but there's been a lot of case law being used against us where similar situations were dismissed," Bone said. "But it's just so different because those were cases in which there was no penis involved, and that is a huge, huge factor that people need to acknowledge in this case.
"Even just drilling down into the risk of pregnancy is a huge deal."