The Ninth Circuit has reversed class certification for a group of transgender incarcerated people, finding that they had not shown that the Oregon Department of Corrections has systemically targeted trans women by housing them in male-only facilities.

In a published opinion filed Thursday, a three-judge panel rejected the idea that the incarcerated people at issue should be granted class status. The plaintiffs lacked "commonality" because they failed to show that overarching systemic factors — such as a substantial risk of sexual assault — tied their claims together, according to the opinion written by U.S. Circuit Judge Eric Tung.

"Plaintiffs have not shown by a preponderance of the evidence that the class members' alleged harms, their varying degrees of harm, and the source of their harms are 'common' to all class members," Judge Tung wrote. "Nor have plaintiffs shown that defendants acted in a uniform way with deliberate indifference toward each of the class members."

John Burgess, who represents the plaintiffs in the Oregon case, said he hopes to continue the lawsuit even in light of the setback. Burgess said in an email to Law360 that plaintiffs will continue, even if not as a class.

"While we are disappointed in the outcome, we continue to believe that the current [Oregon Department of Corrections] practice of placing transgender women in men's prisons places them at a serious risk of sexual and physical assault, and we intend to continue pursuing our clients' claims," Burgess said. "We believe the evidence will continue to support those claims."

The incarcerated plaintiffs brought their class action last September, arguing that the state of Oregon had failed to appropriately house transgender women. The lawsuit claims that the incarcerated women were housed in all-male facilities in violation of their Eighth Amendment rights.

A magistrate judge in April provisionally granted class certification and issued an injunction requiring presumptive placement in women's prisons. The judge said the injunction was granted largely on the grounds that the incarcerated people were likely to be successful on their Eighth Amendment claims, the opinion said.

The magistrate judge found that the claims were likely to succeed because the Oregon Department of Corrections presumptively sent transgender women to male facilities. The district court directed prison administrators to implement an "individualized assessment" system that could better sort trans people into housing of their preference, the opinion said.

The "default presumption" that transgender people were incorrectly housed was based on a statistic that 90% of self-identified transgender women were housed in male facilities. Only 26 of the state's 117 transgender women requested a housing transfer, and of the requests, only eight were granted, the opinion said.

The Ninth Circuit panel said that the use of statistics was not particularly instructive, taking issue in particular with whether trans people face a substantial risk of harm in prison. The panel found that it was an "error" for the magistrate judge to suggest that 35% of trans people in prison were sexually assaulted there, because the data predated the filing of the lawsuit, the opinion said.

In his opinion, Judge Tung — an appointee of President Donald Trump who has been on the Ninth Circuit for less than a year — repeatedly referred to plaintiffs as 'claiming to be transgender women,' rather than describing them as transgender women.

Judge Tung additionally suggested that one of the plaintiffs identifies as transgender so they could further sexually abuse other women. Judge Tung said the plaintiff, known as J.F. — who was originally incarcerated for sexually abusing a woman — "now identifies as a woman" and that her placement in a women's prison would be a security risk.

Judge Tung was joined on the panel by two other Trump appointees, including U.S. Circuit Judge Lawrence VanDyke, who came under fire from his colleagues earlier this year over his raunchy dissent in litigation over transgender spa patrons' access to a women-only spa. 

The opinion said that the injunction amounted to a district court telling the state how to run its prisons and that the rehousing policy was not in the public interest. States have taken differing approaches to housing and treating transgender incarcerated people, leading to a variety of outcomes for them people across the country.

Washington state in April signed off on a deal to improve its treatment of transgender, intersex and nonbinary people in its facilities and submit to yearly monitoring. The state reached the deal and agreed to pay for the monitoring to end a federal lawsuit also filed on behalf of incarcerated people.

The Florida Department of Corrections' Office of Health Services, by contrast, has taken a different approach. The prison health office issued a bulletin banning treatment and referring to people with gender dysphoria as having "short-termed delusions" about their gender identity.

U.S. Circuit Judges Daniel P. Collins, Lawrence VanDyke and Eric C. Tung sat on the panel for the Ninth Circuit.

The government is represented by Dan Rayfield, Paul L. Smith, Robert A. Koch and Ariel T. Ashtamker of the Oregon Attorney General's Office.

The plaintiffs are represented by John Burgess and Carl Post of Post Burgess.

The case is S.D. et al. v. Mike Reese et al., case number 26-4872, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Jeff Overley. Editing by Rich Mills.