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SHAWN MEERKAMPER (SBN 296964)
shawn@transgenderlawcenter.org
TRANSGENDER LAW CENTER
P.O. Box 70976
Oakland, California 94612
Telephone:(510) 587-9696

RICHARD SAENZ (pro hac vice pending)rsaenz@lambdalegal.org
LAMBDA LEGAL
120 Wall Street, 19th Floor
New York, New York 10005
Telephone:(212) 809-8585

AMANDA C. GOAD (SBN 297131)
agoad@aclusocal.org
ACLU FOUNDATION OF SOUTHERNCALIFORNIA
1313 W. 8th Street, Suite 200
Los Angeles, California 90017
Telephone:(213) 977-9500

DIMITRI D. PORTNOI (SBN 282871)
dportnoi@omm.com
MICHAEL J. SIMEONE (SBN 326844)
msimeone@omm.com
ELIZABETH A. ARIAS (SBN 318283)
earias@omm.com
SHIVANI I. MORRISON (SBN 342874)
smorrison@omm.com
O’MELVENY & MYERS LLP
400 South Hope Street, 18th Floor
Los Angeles, California 90071
Telephone:(213) 430-6000

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CHRISTINA S. PAEK (SBN 341994)
cpaek@lambdalegal.org
LAMBDA LEGAL
4221 Wilshire Boulevard, Suite 280
Los Angeles, California 90010
Telephone:(213) 382-7600
NORA HUPPERT (SBN 330552)
nhuppert@lambdalegal.org
LAMBDA LEGAL
65 E. Wacker Place, Suite 2000
Chicago, Illinois 60601
Telephone:(312) 663-4413

SHILPI AGARWAL (SBN 270749)
sagarwal@aclunc.org
ACLU FOUNDATION OF NORTHERNCALIFORNIA
39 Drumm Street
San Francisco, California 94111
Telephone: (415) 621-2493

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16

Attorneys for Proposed Intervenors

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UNITED STATES DISTRICT COURT18

EASTERN DISTRICT OF CALIFORNIA19

FRESNO DIVISION

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21

JANINE CHANDLER, et al.,

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23
24

Plaintiffs,v.
CALIFORNIA DEP’T OF CORRECTIONSAND REHABILITATION, et al.,25
Defendants.
26

Case No. 1:21-cv-01657-JLT-HBKPROPOSED INTERVENORS’MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISSHearing Date:
Time:
Judge:
Hon. Jennifer L. Thurston
Courtroom:
4, 7th Floor

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TABLE OF CONTENTS

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I.

Page
INTRODUCTION ............................................................................................................... 1II.

FACTUAL BACKGROUND .............................................................................................. 2

III.

LEGAL STANDARD .......................................................................................................... 3

IV.

ARGUMENT ....................................................................................................................... 4

6

A.

7
8
9
10
11
12

V.

Plaintiffs Fail to Allege an Equal Protection Violation ........................................... 4
1.

SB 132 Does Not Constitute Sex Discrimination Against Cisgender
Women ......................................................................................................... 42.

SB 132 Is Substantially Related to an Important Government
Interest .......................................................................................................... 8

B.

Plaintiffs Fail to Allege an Eighth Amendment Violation ..................................... 10

C.

Plaintiffs Cannot Demonstrate Redressability Because the Relief They
Seek Would Not Permit CDCR to Violate the Equal Protection Clause, theEighth Amendment, and PREA ............................................................................. 12

CONCLUSION .................................................................................................................. 17

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TABLE OF AUTHORITIES
Page

CASES

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................................. 3, 10

5

B. P. J. v. W. Va. State Bd. of Educ.,
550 F. Supp. 3d 347 (S.D. W. Va. 2021) ................................................................................. 13

6

Becker v. Sherman,
No. 1:16–cv–0828, 2017 WL 6316836 (E.D. Cal. Dec. 11, 2017), report andrecommendation adopted, 2018 WL 623617 (E.D. Cal. Jan. 30, 2018) .................................. 16

7
8
9
10
11
12
13
14

Brown v. Plata,
563 U.S. 493 (2011) ................................................................................................................... 7
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................................................. 12
Crowder v. Diaz,No. 2:17-cv-1657, 2019 WL 3892300 (E.D. Cal. Aug. 19, 2019), report andrecommendation adopted, 2019 WL 5566433 (E.D. Cal. Oct. 29, 2019) ................................. 9
Cruzan v. Special Sch. Dist. No. 1,
294 F.3d 981 (8th Cir. 2002)...................................................................................................... 5

15

Doe 1 v. Trump,
275 F. Supp. 3d 167 (D.D.C. 2017) ......................................................................................... 14

16

Doe ex rel. Doe v. Boyertown Area Sch. Dist.,
897 F.3d 518 (3d Cir. 2018) ....................................................................................................... 517

Doe v. Mass. Dep’t of Corr.,
No. 17-12255-RGS, 2018 WL 2994403 (D. Mass. June 14, 2018) ............................. 13, 14, 17

18
19

Edmo v. Corizon, Inc.,
935 F.3d 757 (9th Cir. 2019)...................................................................................................... 5

20

Edmo v. Corizon, Inc.,949 F.3d 489 (9th Cir. 2020).................................................................................................... 10

21
22
23

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.,884 F.3d 560 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton Cnty., 140 S.
Ct. 1731 (2020) .......................................................................................................................... 9

24

Fabian v. Hosp. of Cent. Conn.,
172 F. Supp. 3d 509 (D. Conn. 2016) ...................................................................................... 10

25

Farmer v. Brennan,
511 U.S. 825 (1994) ..................................................................................................... 10, 15, 16

26

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167 (2000) ................................................................................................................... 3

27
28

Frost v. Agnos,
152 F.3d 1124 (9th Cir. 1998).................................................................................................. 15
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TABLE OF AUTHORITIES(continued)

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Page
3
4
5
6
7
8
9
10

Greene v. Tilton,
No. 2:09-cv-0793, 2012 WL 691704 (E.D. Cal. Mar. 2, 2012), report andrecommendation adopted, 2012 WL 1130602 (E.D. Cal. Mar. 29, 2012)................................. 7
Grimm v. Gloucester Cnty. Sch. Bd.,
972 F.3d 586 (4th Cir. 2020).................................................................................................... 13
Hampton v. Baldwin,
No. 3:18-CV-550, 2018 WL 5830730 (S.D. Ill. Nov. 7, 2018) ................................... 13, 15, 17
Harrison v. Kernan,971 F.3d 1069 (9th Cir. 2020).................................................................................................... 8
Hecox v. Little,
479 F. Supp. 3d 930 (D. Idaho 2020) ......................................................................................... 6

11

Johnson v. California,
543 U.S. 499 (2005) ................................................................................................................. 11

12

Karnoski v. Trump,
926 F.3d 1180 (9th Cir. 2019).......................................................................................... 6, 8, 13

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14
15
16
17
18
19
20
21

Kastl v. Maricopa Cnty. Cmty. Coll. Dist.,
No. 02-cv-1531, 2004 WL 2008954 (D. Ariz. June 3, 2004), aff’d, 325 F.
App’x 492 (9th Cir. 2009).................................................................................................. 10, 14
McQueen v. Brown,
No. 2:15-cv-2544 JAM AC P, 2018 WL 1875631 (E.D. Cal. Apr. 19, 2018),
report and recommendation adopted, 2018 WL 2441713 (E.D. Cal. May 31,2018) ........................................................................................................................................ 15
Michelle v. Cal. Dep’t of Corr. & Rehab.,No. 1:18-cv-01743, 2021 WL 1516401 (E.D. Cal. Apr. 16, 2021), report andrecommendation adopted sub nom. Concepcion v. Cal. Dep’t of Corr. &Rehab, 2021 WL 3488120 (E.D. Cal. Aug. 9, 2021) ............................................................... 13
Norsworthy v. Beard,
87 F. Supp. 3d 1104 (N.D. Cal. 2015) ............................................................................... 13, 17

22

Olive v. Harrington,
No. 1:15-cv-01276, 2016 WL 4899177 (E.D. Cal. Sept. 14, 2016) ........................................ 15

23
24

Parents for Priv. v. Barr,
949 F.3d 1210 (9th Cir.), cert. denied, 141 S. Ct. 894 (2020) ............................................... 5, 9

25Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) ..................................................................................................................... 3

26
27
28

Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000)........................................................................................... passim
Simon v. E. Ky. Welfare Rts. Org.,
426 U.S. 26 (1976) ............................................................................................................... 4, 12
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TABLE OF AUTHORITIES(continued)

2
Page
3
4

Somers v. Apple, Inc.,729 F.3d 953 (9th Cir. 2013)...................................................................................................... 3

5

Stover v. Corr. Corp. of Am.,No. 1:12–cv–00393, 2015 WL 874288 (D. Idaho Feb. 27, 2015) ........................................... 16

6
7
8
9
10

Taking Offense v. State,
66 Cal. App. 5th 696 (2021), review granted on other grounds, 286 Cal. Rptr.
3d 248 (Mem) ......................................................................................................................... 6, 9
Tay v. Dennison,
457 F. Supp. 3d 657 (S.D. Ill. 2020) ...................................................................... 14, 15, 16, 17
Tay v. Dennison,
No. 19-cv-00501, 2020 WL 2100761 (S.D. Ill. May 1, 2020)................................................. 13

11

Thomas v. District of Columbia,
887 F. Supp. 1 (D.D.C. 1995) .................................................................................................. 16

12
13

Turner v. Safley,
482 U.S. 78 (1987) ............................................................................................................... 8, 15

14

United States v. Virginia,
518 U.S. 515 (1996) ................................................................................................................. 10

15
16

Villa v. Maricopa Cnty.,
865 F.3d 1224 (9th Cir. 2017).................................................................................................... 3

17Villery v. Grannis,
No. 1:10–cv–01022–RRB, 2013 WL 1499263 (E.D. Cal. Apr. 11, 2013) .............................. 11

18

Vt. Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765 (2000) ............................................................................................................. 4, 12

19
20

Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034 (7th Cir. 2017).................................................................................................. 13

21

Zollicoffer v. Livingston,
169 F. Supp. 3d 687 (S.D. Tex. 2016) ..................................................................................... 15

22

STATUTES

23

Cal. Penal Code § 2606 .................................................................................................. 3, 11, 14, 17

24

Cal. Penal Code § 2606(a)(3) ....................................................................................................... 1, 5

25

Cal. Penal Code § 2606(b) ............................................................................................................... 3

26

Cal. Penal Code § 2606(c) ........................................................................................................... 3, 7

27

Cal. Penal Code § 2606(d) ............................................................................................................... 3

28

Senate Bill No. 132, Transgender Respect, Agency, and Dignity Act (Jan. 1, 2021) ..................... 2
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TABLE OF AUTHORITIES(continued)

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Page
3

OTHER AUTHORITIES

42020 Cal. Legis. Serv. ch. 182, § 2 .............................................................................................. 2, 8

5Statement of Interest of the United States, Diamond v. Ward, 5:20-cv-00453 (M.D.
Ga. Apr. 22, 2021).................................................................................................................... 15

6
7

Valerie Jenness et al., Ctr. for Evidence-Based Corr., Violence in California
Correctional Facilities: An Empirical Examination of Sexual Assault (2007).......................... 2

8

REGULATIONS

928 C.F.R. § 115.42(c) ..................................................................................................................... 161028 C.F.R. § 115.42(d) .................................................................................................................... 1611

28 C.F.R. § 115.42(e) ..................................................................................................................... 16

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I.

INTRODUCTION

2

California’s Senate Bill No. 132 (“SB 132”) protects incarcerated transgender people by3

requiring Defendants, the state’s prison system and its leaders, to house them according to their4gender identity if they so request. SB 132 thus ended California’s prior default practice of5

automatically housing all incarcerated transgender people according to their genitalia without

6

exception. The law marked a crucial first step toward ending the pervasive violation of7

incarcerated transgender people’s constitutional right to be free of horrifically unsafe conditions

8of confinement and discriminatory treatment.
Plaintiffs’ lawsuit argues that SB 132, which is designed to curtail the unconstitutionally

910violent and discriminatory conditions that result from housing transgender women in men’s

11

facilities, is itself unconstitutional because it will result in the mere presence of some transgender12

women in women’s facilities.1 But Plaintiffs’ allegations fall far short of describing how SB 132

13

has or plausibly will result in any injury to incarcerated cisgender women approaching the level14of any constitutional violation. On the contrary, the relief that Plaintiffs request—declaratory

15

relief holding the statute facially unconstitutional and a permanent injunction against its

16

enforcement—would not permit Defendants to resume a plainly unconstitutional policy that17

discriminates against incarcerated transgender people and places them at substantial risk of

18

serious harm. For those reasons, Plaintiffs cannot demonstrate that their claims are redressable

19

and fail to state a claim upon which relief can be granted, and this Court should dismiss their

20

complaint.

21

Defendants argued for this same result in their Motion to Dismiss. Yet they did so in part22

by asserting broad statutory and constitutional discretion over housing policies and decisions and23

claiming that they “have not decided on a final implementation” of a law which has been binding

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1

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The complaint refers to transgender women (and other transgender, nonbinary, or intersex
people assigned male at birth) incorrectly by describing them as men who “claim[] a ‘transgender,
nonbinary, or intersex’ ‘identity.’” Compl. ¶17. Transgender women and other transgender or
nonbinary people assigned male at birth are not men. Broadly speaking, it is the presence oftransgender women and other transgender or nonbinary people assigned male at birth in women’s
facilities that Plaintiffs challenge. For that reason, Proposed Intervenors here sometimes refer totransgender women as a shorthand, though SB 132’s protections apply equally to transgenderwomen and to other transgender, nonbinary, or intersex people. Cal. Penal Code § 2606(a)(3).
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on them since January 1, 2021. Dkt. No. 15 at 16–18. Defendants do not have the wide2

discretion they claim: the text of SB 132 commands nothing less than full implementation, and3

the Constitution demands that incarcerated transgender people be protected from both cruel and4

unusual punishment and discrimination.

5

II.

FACTUAL BACKGROUND

6

Transgender women incarcerated in men’s facilities are at extreme risk of physical and7sexual violence and persistent harassment. To protect them and other incarcerated transgender,

8

nonbinary, and intersex people, California lawmakers enacted SB 132, also known as the9

Transgender Respect, Agency, and Dignity Act. This law requires the California Department of

10

Corrections (“CDCR”)—the Defendants—to house incarcerated transgender people according to11

their gender identity if that is their request. A broad coalition of advocacy organizations,

12

including proposed intervenor the Transgender Gender-Variant Intersex Justice Project (TGIJP),

13

formally sponsored and shaped SB 132 based on extensive feedback from currently and formerly

14

incarcerated people. See Def.’s Req. for Judicial Notice, Ex. A, Dkt. No. 15-3. The law took15

effect on January 1, 2021.

16

In enacting SB 132, the California Legislature found that 40 percent of incarcerated

17transgender women reported being harassed by other incarcerated people, and 38 percent reported

18

being harassed by CDCR staff. 2020 Cal. Legis. Serv. ch. 182, § 2(g), (h). The Proposed

19

Intervenors’ own experiences bear this out, see Dkt. No. 19-3–19-6, and their stories are not20

unusual. A statewide study found that transgender women housed in men’s facilities in California

21

were 13 times more likely to be sexually assaulted than men in the same facilities.2

22

SB 132 protects incarcerated transgender people like the Proposed Intervenors in several

23

ways, but the law’s central protections come from its housing provisions: it requires Defendants

24

to house transgender, nonbinary, and intersex people in facilities designated for men or women25

based on the person’s stated preference and perception of personal safety, subject to one

26
2

27
28

2020 Cal. Legis. Serv. ch. 182, § 2(c); Valerie Jenness et al., Ctr. for Evidence-Based Corr.,
Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault 54(2007), https://cpb-us-e2.wpmucdn.com/sites.uci.edu/dist/0/1149/files/2013/06/Jenness-etal._PREA-Report.pdf.
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exception. Cal. Penal Code § 2606. Defendants may deny such a housing request for2“management or security concerns,” but their ability to do so is significantly limited—they may

3

not deny a request “based on any discriminatory reason, including, but not limited to,” anatomy

4(including “genitalia or other physical characteristics”), “sexual orientation,” or any “factor

5

present among other people incarcerated at the preferred type of facility.” Id. § 2606(c). If

6

Defendants intend to deny such a request, they must provide “a meaningful opportunity to7verbally raise any objections” and “certify in writing a specific and articulable basis” for their8

decision, which they must provide to the person who made the request. Id. § 2606(b), (d).

9Plaintiffs Janine Chandler, Krystal Gonzalez, Tomiekia Johnson, Nadia Romero, and the10organization Woman II Woman challenge SB 132 on various federal and state constitutional

11

grounds. In all, Plaintiffs bring: (1) a federal Eighth Amendment claim; (2) a federal First

12

Amendment claim; and (3) a federal Equal Protection claim. Compl. ¶¶ 81–105. They also bring13

several California state constitutional claims. Id. ¶¶ 106–141.

14

On April 11, 2022, Defendants filed their Motion to Dismiss Plaintiffs’ complaint. Dkt.

15

No. 15. Defendants argue, among other things, that Plaintiffs lack standing; that Plaintiffs’ state

16

constitutional claims are barred by Pennhurst State School & Hospital v. Halderman, 465 U.S.

1789, 106 (1984); that Defendants are entitled to wide constitutional and statutory discretion over18

housing decisions; and that Plaintiffs fail to state valid federal constitutional claims. See Dkt. No.

1915, passim.

20

III.

LEGAL STANDARD

21“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

22

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Villa v. Maricopa Cnty.,

23

865 F.3d 1224, 1228 (9th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

24

Plausibility requires the allegations to “rise above the mere conceivability or possibility of25

unlawful conduct.” Somers v. Apple, Inc., 729 F.3d 953, 960 (9th Cir. 2013). Additionally, a26plaintiff invoking this Court’s jurisdiction “must demonstrate standing separately for each form of27

relief sought.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185

28(2000). To do so, they “must demonstrate redressability—a ‘substantial likelihood’ that the3

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requested relief will remedy the alleged injury in fact.” Vt. Agency of Nat. Res. v. United States2

ex rel. Stevens, 529 U.S. 765, 771 (2000) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S.

3

26, 45 (1976)).

4

IV.

ARGUMENT

5

Plaintiffs bring claims under the First Amendment, the Eighth Amendment, the Equal

6

Protection Clause, and various provisions of the California Constitution. Compl. ¶¶ 106–141. In

7their Motion to Dismiss, Defendants explain why this Court cannot exercise jurisdiction over the8state constitutional claims and why Plaintiffs lack standing to assert their First Amendment

9claims. Dkt. No. 15 at 5–9. Proposed Intervenors agree and do not repeat those arguments here.

10

Plaintiffs’ claims under the Equal Protection Clause and the Eighth Amendment must also11

be dismissed, not because Defendants are entitled to this Court’s total deference in areas of

12

housing and placement decisions, as they claim, but because neither provision is violated by the13

mere presence of transgender women in women’s facilities. Dkt. No. 15 at 16. To the contrary,14

SB 132 is a necessary departure from Defendants’ past practice that housed many transgender

15

people in conditions of confinement that violated the Eighth Amendment, through discriminatory

16

decision-making that violated the Equal Protection Clause. The declaratory and injunctive relief

17that Plaintiffs seek would not leave Defendants free to violate the Constitution by sending back18

those who have obtained transfers or by foreclosing future transfers. Therefore, Plaintiffs’ claims

19

are not redressable, and should be dismissed.

20

A.

21

Plaintiffs advance several equal protection theories, each aimed at reframing state action

Plaintiffs Fail to Allege an Equal Protection Violation22

to protect incarcerated transgender people as discrimination against cisgender women. Courts

23

confronting such theories have rejected them, and this Court should do the same.

24

1.

25
26

SB 132 Does Not Constitute Sex Discrimination Against Cisgender
WomenFirst, Plaintiffs claim that SB 132 constitutes sex discrimination because it “converts
women’s correctional facilities into mixed-sex3 facilities, with no corresponding conversion of

27
Here, Plaintiffs rely on an incorrect notion of “sex” that limits its definition to the sex one isassigned at birth. But the Ninth Circuit has recognized that “sex” is more complicated and not
3

28

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men’s facilities” and imposes “corresponding increased risks” on cisgender women but not on

2cisgender men. Compl. ¶¶ 100, 101. But this is factually incorrect: the law’s provisions apply

3

equally to men’s and women’s facilities (such that transgender people may request a transfer to4either, based on their personal perception of safety—including transgender men who may request

5

to transfer from a women’s facility to a men’s facility). See Parents for Priv. v. Barr, 949 F.3d

61210 (9th Cir.), cert. denied, 141 S. Ct. 894 (2020) (holding that an analogous school policy that

7

treated men’s and women’s facilities equally did not discriminate based on sex); Cal. Penal Code8

§ 2606(a)(3). The law, if anything, only ameliorates the mixed-sex housing that resulted from

9

Defendants’ prior policy of automatically housing transgender women in men’s facilities and

10transgender men in women’s facilities. In fact, Plaintiffs’ desire for a policy that houses people

11

based solely on sex assigned at birth would require Plaintiffs to be housed with transgender men.

12

No matter what policy Defendants maintain, some transgender people will be present in the same13

facilities as Plaintiffs.

14

It is not a violation of equal protection to house some transgender people assigned male at15birth in women’s facilities. To the extent that Plaintiffs argue that “living in close quarters with”

16

and sharing facilities with transgender women itself works an act of sex discrimination, courts

17

across the country have rejected this argument across a wide variety of contexts. See, e.g.,

18

Parents for Priv., 949 F.3d at 1228 (rejecting sex discrimination claim in schools owing to “the19mere presence of transgender students in locker and bathroom facilities”); Cruzan v. Special Sch.

20

Dist. No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (rejecting sex discrimination claim in employment

21

where the plaintiff “does not assert [the transgender employee] engaged in any inappropriate

22

conduct other than merely being present in the women’s faculty restroom”); Doe ex rel. Doe v.

23Boyertown Area Sch. Dist., 897 F.3d 518, 536 (3d Cir. 2018) (in challenge to trans-inclusive

24

school policy, rejecting attempt “to equate mere presence [of transgender people] in a space with25

harassing activity” directed toward cisgender women).

26
27
28

Second, Plaintiffs claim that SB 132 grants transgender people “special rights” that it does
limited in this way, and that transgender women are women, regardless of their sex assigned atbirth. Edmo v. Corizon, Inc., 935 F.3d 757, 768 (9th Cir. 2019); Schwenk v. Hartford, 204 F.3d
1187 (9th Cir. 2000).
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not grant to those who “have no gender identity” or whose gender identity is not “favored under2

the statute.” Compl. ¶ 103. This is pure nonsense. As the Ninth Circuit has recognized,3

everyone has a gender identity; for those who are cisgender, that gender identity simply matches

4

their sex assigned at birth. See, e.g., Karnoski v. Trump, 926 F.3d 1180, 1187 n.1 (9th Cir. 2019)5(citing Brief of Amici Curiae American Medical Association et al.); see also Hecox v. Little, 479

6

F. Supp. 3d 930, 945 (D. Idaho 2020) (explaining that transgender people have “a gender identity

7[that] does not align with the sex [assigned] at birth”) (internal quotation omitted). Plaintiffs’

8claim that SB 132 discriminates against “female prisoner[s] without any gender identity” is9indecipherable and is not plausible. Plaintiffs have failed to identify any such person or allege10

any such specific injury.

11

Nor does SB 132 give transgender people “special rights” by permitting them to be

12housed according to their gender identity, a right that Plaintiffs already have. California courts

13

have rejected a similar argument in a challenge to an analogous state law involving long-term

14

care facilities where the plaintiff “fail[ed] to show that the right afforded to transgender residents

15

by the room assignment provision—the right to a room assignment in accordance with the16

resident’s gender identity—[was] any different from the right afforded to non-transgender17

residents.” Taking Offense v. State, 66 Cal. App. 5th 696, 727 (2021), review granted on other18

grounds, 286 Cal. Rptr. 3d 248 (Mem). Plaintiffs’ equal protection claims fail for the same19

reason—incarcerated cisgender people already enjoy the right to be housed according to their20

gender identity while in CDCR’s custody. See, e.g., Hecox, 479 F. Supp. 3d at 975 (noting that21

“cisgender athletes … may compete on athletic teams consistent with their gender identity” in22analysis of policy preventing transgender student-athletes from doing so).

23

Third, Plaintiffs assert that SB 132 is a government classification on the basis of gender24

identity or transgender status that does not employ means substantially related to an important

25

government interest—in other words, they argue that it does not survive heightened scrutiny.

26

Compl. ¶ 102. Defendants rightly note that Plaintiffs have not plausibly alleged any

27

discriminatory intent or purpose sufficient to trigger any scrutiny under the Equal Protection

28

Clause. Dkt. No. 15 at 24.
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However, Defendants also erroneously argue that they are afforded wide constitutional2

and statutory “discretion when creating and implementing housing decisions and policies”

3

because of separation-of-powers concerns and under the Due Process Clause. Dkt. No. 15 at 16–

4

17. But prison administrators cannot escape the commands of the Equal Protection Clause, and5“[c]ourts may not allow constitutional violations to continue simply because a remedy would

6

involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511

7(2011); see also Greene v. Tilton, No. 2:09-cv-0793, 2012 WL 691704, at *8 (E.D. Cal. Mar. 2,

82012) (holding that deference to CDCR prison administration did not preclude equal protection

9gender discrimination claims), report and recommendation adopted, 2012 WL 1130602 (E.D.

10

Cal. Mar. 29, 2012). Plaintiffs’ claims fail not because CDCR is immune from judicial review of11

its housing decisions, but because it does not violate the Constitution to house transgender women

12

in women’s facilities. In fact, as demonstrated more thoroughly below, the Constitution often

13

requires it.

14

The text of the statute does not grant Defendants the broad discretion they assert: it

15

explicitly limits their ability to deny transfers, prohibiting them from doing so “based on any

16

discriminatory reason,” which the statute clarifies includes on the basis of anatomy (including

17

genitalia), sexual orientation, or any factor present among other people incarcerated at the18

preferred type of facility. Cal. Penal Code § 2606(c). Thus, it would be a clear violation of the19

text of SB 132 for CDCR to require a transgender woman to undergo surgical vaginoplasty before

20

granting her a transfer, for example. Similarly, CDCR cannot deny a transgender woman’s

21

transfer request based on her convictions or disciplinary history so long as it incarcerates

22

cisgender women with similar records in its women’s prisons, as that would run afoul of the non-23

discrimination provision. Id. This is no small limitation, and CDCR is further required to “certify

24

in writing” its nondiscriminatory, “specific and articulable basis” for any denials. Id.

25

Neither can Defendants derive this discretion from the constitutional deference principles

26

announced in Turner v. Safley, as they claim to do in their Motion to Dismiss. Dkt. No. 15 at 16;

27

Turner v. Safley, 482 U.S. 78 (1987). The Ninth Circuit has held—in a case to which Defendants

28

themselves were parties—that Turner’s relaxed standard of review for constitutional challenges to
7

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prison administration simply does not apply to gender discrimination claims. Harrison v.

2

Kernan, 971 F.3d 1069, 1078 (9th Cir. 2020) (holding that prison regulations “which facially3

discriminate on the basis of gender ... must receive intermediate scrutiny” in spite of Turner). In

4

doing so, the court cautioned that gender classifications cannot be based on stereotype, or on

5“mechanical application of traditional, often inaccurate assumptions about gender,” nor may they6

“rely on overbroad generalizations about” gender. Id. at 1077–78 (internal quotations omitted).

7

2.

SB 132 Is Substantially Related to an Important Government Interest

8

As explained above, Plaintiffs have not plausibly alleged any discriminatory intent or

9

purpose sufficient to trigger any heightened scrutiny under the Equal Protection Clause. But even10

if this Court does view SB 132 as a government classification of transgender people receiving

11

heightened scrutiny, whether viewed as gender discrimination or discrimination on the basis of

12

transgender status,4 the law is substantially related to the achievement of an important

13

government interest.

14

Protecting transgender people from the extreme risk of physical and sexual assault and15

harassment that they face in prisons—a degree of risk that incarcerated cisgender people

16

statistically do not share—is undeniably an important government interest. The California

17

legislature recognized exactly this in enacting SB 132, acknowledging in the preamble that18

incarcerated transgender people are “particularly vulnerable to sexual abuse and sexual

19

harassment”; that “a study of the state’s prisons found that the rate of sexual assault for

20

transgender women” was “13 times higher than for men”; that “almost 40 percent of incarcerated

21transgender individuals reported experiencing sexual victimization while incarcerated compared22

to 4 percent of all incarcerated individuals”; and that transgender people “deserve respect, agency,

23

and dignity.” 2020 Cal. Legis. Serv. ch. 182, § 2.

24
25

The statute serves another government interest that is no less important: partiallyremedying the long, troubling history of discrimination by CDCR against incarcerated

26
4

27
28

The Ninth Circuit has held that discrimination against transgender people receives heightened
scrutiny both because it is sex discrimination and because it is discrimination on the basis of
one’s status as transgender. Schwenk, 204 F.3d at 1202 (sex discrimination); Karnoski, 926 F.3d
at 1200 (transgender status).
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transgender people. See, e.g., Crowder v. Diaz, No. 2:17-cv-1657, 2019 WL 3892300, at *13

2(E.D. Cal. Aug. 19, 2019) (summarizing the discrimination incarcerated transgender people face3

generally and noting the plaintiff’s experience of discrimination in CDCR facilities), report and4

recommendation adopted, 2019 WL 5566433 (E.D. Cal. Oct. 29, 2019). Courts have held that5

similar policies prohibiting discrimination against transgender people in a wide variety of

6contexts serve an important government interest, even a compelling one. For example, courts

7

have long held that the government has a compelling interest in prohibiting sex discrimination,

8and that the government interest is no less compelling where that discrimination is targeted at

9transgender people. See, e.g., Schwenk, 204 F.3d at 1202 (holding that discrimination against

10transgender people constitutes sex discrimination); EEOC v. R.G. & G.R. Harris Funeral Homes,

11Inc., 884 F.3d 560, 591 (6th Cir. 2018) (recognizing the government’s “compelling interest in

12

combating discrimination in the workforce” in addressing termination of transgender employee),13

aff’d sub nom. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). Indeed, the Ninth Circuit and

14

California’s courts have both held that state laws protecting transgender people’s access to15particular spaces or facilities based on their gender identity rather than their sex assigned at birth

16

may serve a compelling state interest. Taking Offense, 66 Cal. App. 5th 696 (holding that17

California has a compelling interest in analogous housing provisions protecting transgender18

people in long-term care facilities); Parents for Priv., 949 F.3d at 1238 n.21 (noting that, for19

purposes of the strict scrutiny analysis, school district was not precluded from “asserting an

20interest in providing an accommodating and safe school environment for transgender students and21

assuring that they do not suffer the stigmatizing injury of discrimination by being denied access to22

multi-user bathrooms that match their gender identity”).

23

The means that California has selected—provisions allowing transgender people to24

request housing, search policies, and pronoun usage consistent with their gender identity—are25

substantially related to these government objectives. Plaintiffs make no effort to allege otherwise

26

in their complaint, apart from conclusory allegations that the statute is “not substantially related to27

any purported important governmental interest.” Iqbal, 556 U.S. at 678 (complaint “that offers

28

labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”);
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Compl. ¶ 102. At most, Plaintiffs point out that the statute prohibits CDCR from denying a2transfer based on “anatomy, genitalia, physical characteristics, and physiology,” which are traits

3

they claim “differentiate men as a class from women as a class.” Id. ¶ 7. But it is precisely these4assumptions that the Equal Protection Clause forbids CDCR to make—“generalizations about the5

way women are,” United States v. Virginia, 518 U.S. 515, 550 (1996), even if those6

generalizations are about their bodies’ failure to conform to “socially-constructed gender

7

expectations.” Schwenk, 204 F.3d at 1202; see also Kastl v. Maricopa Cnty. Cmty. Coll. Dist.,8

No. 02-cv-1531, 2004 WL 2008954, at *2 (D. Ariz. June 3, 2004), aff’d, 325 F. App’x 492 (9th9Cir. 2009) (“[N]either a woman with male genitalia nor a man with stereotypically female

10

anatomy, such as breasts, may be deprived of a benefit or privilege of employment by reason of

11

that nonconforming trait.”). Discrimination based on sex “is not only discrimination because of

12

maleness and discrimination because of femaleness,” but also “discrimination because of the

13

properties or characteristics by which individuals may be classified as male or female.” Fabian v.

14

Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 526 (D. Conn. 2016).

15

Because Plaintiffs’ equal protection theories are incoherent and conclusory, and because

16even if they were not, SB 132 would survive heighted scrutiny, these claims must be dismissed.

17

B.

18

Prison officials violate the Eighth Amendment rights of an incarcerated person when they

19know of, and disregard, an excessive risk to the incarcerated person’s health and safety. Edmo v.

20

Corizon, Inc., 949 F.3d 489, 500-01 (9th Cir. 2020). Plaintiffs argue that the mere presence of21some transgender women in women’s facilities constitutes a violation of cisgender women’s

22

Eighth Amendment rights. Such a claim requires a showing of deliberate indifference to23

conditions that pose a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 828

24(1994). But Plaintiffs do not allege actually existing conditions of substantial risk, except for the25“psychological distress and terror” that they claim results from the mere presence of transgender26

women in facilities with cisgender women. Compl. ¶ 83. Plaintiffs’ remaining allegations of27

harm rest almost entirely on the bigoted and baseless notion that transgender women as a group28

have a propensity to “violate [cisgender] women’s safety” and that the statute should require

Plaintiffs Fail to Allege an Eighth Amendment Violation

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transgender women requesting a transfer to demonstrate a “lower risk of male pattern violence2than for an average [cisgender] man.” Id. ¶¶ 8, 84. Plaintiffs fail to plead any specific facts to

3

support this offensive assertion, which asks this Court to assess individual transgender people

4

based on stereotypes and assumptions about transgender people as a group, and thus invites the5

Court to itself violate equal protection principles. Infra at 13; see also Johnson v. California, 543

6

U.S. 499, 507 (2005) (holding that CDCR’s concerns about violence could not justify a7

government classification because the resulting stigmatization contributed to the problem it was

8trying to correct). For that reason, it cannot be the basis for a conditions of confinement claim.

9And, as addressed more fully below, CDCR cannot foreclose an avenue for transgender women to10

seek relative safety from the very real and unreasonable risks of harm they face in men’s prisons,11in violation of their Eighth Amendment rights.

12

Plaintiffs’ allegation that SB 132 might result in conditions of substantial risk of serious

13

harm to cisgender women at some future date is pure speculation and completely ignores the14

provisions in SB 132 that permit CDCR to deny transfers specifically due to security concerns.

15

Cal. Penal Code § 2606; see also Compl. ¶¶ 34, 35; Villery v. Grannis, No. 1:10–cv–01022–RRB,

16

2013 WL 1499263, at *2 (E.D. Cal. Apr. 11, 2013) (“the official must have more than a mere

17

suspicion that an attack will occur”) (internal quotations omitted).

18

Plaintiffs do allege a single instance of harm by a transgender woman against Plaintiff

19

Krystal Gonzalez, Compl. ¶ 70, but nothing in SB 132 prohibits Defendants from preventing or20

remedying one incarcerated person’s assault of another, nor does the statute permit assault, limit

21

CDCR’s authority to maintain order within its facilities and among a facility’s residents, or22minimize prison officials’ mandate to protect incarcerated people. That Defendants were required23

to refer to Gonzalez’s alleged assailant as a transgender woman is the only supposed fact alleged24

to have been mandated by SB 132, and has no impact on Gonzalez’s health and safety. Id. The

25

statute simply requires Defendants to treat transgender women similarly to cisgender women by

26

housing them in women’s facilities. Plaintiffs clearly do not allege that the only or best27

mechanism to address an allegation of assault by an incarcerated cisgender woman is to transfer

28

her to a men’s prison. Without any justification, however, they argue that CDCR must do so—as
11

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a matter of constitutional law—to all transgender women. The collective punishment Plaintiffs

2

seek cannot be justified by any of the allegations contained in their Complaint.

3
4
5

C.

Plaintiffs Cannot Demonstrate Redressability Because the Relief They Seek
Would Not Permit CDCR to Violate the Equal Protection Clause, the Eighth
Amendment, and PREA

Resting upon their outlandish theory that the mere existence of transgender women in

6

women’s facilities violates the Constitution are Plaintiffs’ astonishing requests for relief:

7declaratory relief facially invalidating SB 132 and a permanent injunction against its enforcement.

8Compl. at 34. But to establish Article III standing, Plaintiffs “must demonstrate redressability—a9‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” Stevens,

10529 U.S. at 771 (quoting Simon, 426 U.S. at 45). Plaintiffs’ claims are not redressable because11

the relief they request—an injunction against the implementation and enforcement of SB 132—

12

would not permit CDCR to remove transgender women from women’s prisons or foreclose future

13

transfers in violation of Defendants’ independent obligations under the Equal Protection Clause,14

the Eighth Amendment, and the federal Prison Rape Elimination Act (“PREA”). An injunction

15

against implementing the specific policy contained in SB 132 would do nothing to change

16

CDCR’s obligations to maintain a similar policy as required by the Constitution, and thus would17

do nothing to remedy Plaintiff’s alleged injuries, which they claim stem from the presence of

18

transgender women in women’s facilities. See Compl. And even if Plaintiffs’ requested relief

19were construed as a request to ban transgender women from CDCR’s women’s prisons, such a20

ban would violate these same sources of law.

21

Equal Protection. Even if SB 132 itself were enjoined, Defendants could not resume a22policy of housing all transgender people based on their genitalia or their sex assigned at birth23rather than based on their gender identity, as such a policy would treat transgender people

24

differently than their cisgender counterparts. In doing so, it would run afoul of the Equal

25

Protection Clause by impermissibly classifying on the bases of both sex and transgender status, in26

ways not justified by any government interest.

27
28

The Equal Protection Clause is “essentially a direction that all persons similarly situatedshould be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
12

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Transgender women are women, who are similarly situated to other women. See B. P. J. v. W.

2

Va. State Bd. of Educ., 550 F. Supp. 3d 347, 353–54 (S.D. W. Va. 2021) (observing that a3transgender girl “is not most similarly situated with cisgender boys; she is similarly situated to4other girls”). Specifically, “courts have found that transgender woman prisoners are similarly

5

situated to cisgender woman prisoners for purposes of an equal protection claim.” Tay v.

6

Dennison, No. 19-cv-00501, 2020 WL 2100761, at *2 (S.D. Ill. May 1, 2020); see also Michelle

7

v. Cal. Dep’t of Corr. & Rehab., No. 1:18-cv-01743, 2021 WL 1516401, at *10 (E.D. Cal. Apr.

816, 2021), report and recommendation adopted sub nom. Concepcion v. Cal. Dep’t of Corr. &9Rehab, 2021 WL 3488120 (E.D. Cal. Aug. 9, 2021); Norsworthy v. Beard, 87 F. Supp. 3d 1104,

101120 (N.D. Cal. 2015) (finding that transgender woman prisoner adequately stated an equal

11

protection claim based on allegations that “Defendants treated her differently from a similarly

12

situated non-transgender woman”).

13

A policy that conditions placement in sex-segregated facilities based on genitalia or birth-

14

assigned sex rather than gender identity discriminates on the basis of sex. See, e.g., Hampton v.

15

Baldwin, No. 3:18-CV-550, 2018 WL 5830730, at *11 (S.D. Ill. Nov. 7, 2018) (finding that, in16

maintaining a prison policy that assigns placements based on genitalia, “a sex-based classification

17

is used”); Tay, 2020 WL 2100761 (finding that a policy that houses based on genitalia alone

18

discriminates on the basis of sex); Doe v. Mass. Dep’t of Corr., No. 17-12255-RGS, 2018 WL

192994403, at *9 (D. Mass. June 14, 2018) (finding that a policy that assigns based only on

20“biological sex assignment at birth” constituted a sex-based classification); Norsworthy, 87 F.

21

Supp. 3d at 1120. That is because a policy that decides which sex-segregated facility a person

22

may use based on their birth-assigned sex “necessarily rests on a sex classification” and “cannot

23

be stated without referencing sex.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 608 (4th24

Cir. 2020) (quotations omitted); see also Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist.

25

No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) (holding that a school restroom policy

26

based on birth-assigned sex was inherently based on a sex classification and applying heightened27

scrutiny). Because such a policy also employs a classification of transgender people as a group, it

28

discriminates on the basis of transgender status. Karnoski, 926 F.3d at 1200–01; Norsworthy, 87
13

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F. Supp. 3d at 1119.

2

Neither could such a reversion to the status quo ante by potentially sending some3transgender women back to men’s facilities be justified by any purported government interest.

4

Any attempt to justify it based on security grounds resulting from SB 132 would be fatally flawed5

for two reasons. First, SB 132 already permits CDCR to deny transfers based on certain security

6

concerns, Cal. Penal Code § 2606, and CDCR has any number of other means short of facility

7transfer to address misconduct by a person of any gender. Second, “generalized concerns for8

prison security are insufficient to meet the demanding burden [required] to justify sex-based

9classifications.” Doe, 2018 WL 2994403, at *10.

10

And the fact that CDCR’s discretion to deny a transfer is limited under the statute does not

11change the equal protection analysis, as those limits are consistent with equal protection

12

principles. SB 132 explicitly prohibits CDCR from denying a transfer request based on

13

stereotypes of what a man or woman should be like. “The defining characteristic of a transgender14

individual is that their inward identity, behavior, and possibly their physical characteristics, do

15

not conform to stereotypes of how an individual of their assigned sex should feel, act and look.”16

Doe 1 v. Trump, 275 F. Supp. 3d 167, 210 (D.D.C. 2017). It is exactly this kind of stereotyping

17

that occurs when a prison concludes that access to a sex-segregated facility may be denied to “a18

woman with male genitalia [or] a man with stereotypically female anatomy, such as breasts ... by19

reason of that nonconforming trait.” Kastl, 2004 WL 2008954, at *2. The same is true of other20

physical characteristics like size. See, e.g., Tay v. Dennison, 457 F. Supp. 3d 657, 681 (S.D. Ill.

212020) (holding that it was sex discrimination to house a transgender woman in a men’s facility

22

because of her physical size, in the absence of any evidence that the prison would “assign a very

23

small man to a women’s prison—or an exceptionally large woman to a men’s prison—based on

24that individual’s size alone”).

25

Unless they can survive heightened scrutiny, Defendants’ policies must treat transgender26

women in the same way that they treat similarly situated non-transgender women. A policy that27

would place a cisgender woman in a men’s facility, for punitive or protective reasons, would be

28

outrageous and universally condemned, and could not be justified even under rational basis
14

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review or the deferential standard in Turner v. Safley. See Turner, 482 U.S. 78 (1987); Hampton,

2

2018 WL 5830730, at *12 (finding that a similar housing policy was likely not substantially3

related to the interest of prison security because “[cisgender] inmates can be equally aggressive4and violent, perhaps more so than [the transgender plaintiff]. Yet, no one would suggest those5

women should be housed in the men’s division.”). And because CDCR could not enforce a6

policy that places a cisgender woman in a men’s facility, it cannot enforce a policy that places all

7

transgender women in men’s facilities.

8

Eighth Amendment. In recognition of the intense danger that incarcerated transgender

9people face, many courts have acknowledged that prison officials who fail to protect them from10

harm by housing them according to their genitalia or sex assigned at birth may violate the Eighth

11

Amendment, including a court in this District in a case against Defendants themselves. See, e.g.,

12

Farmer, 511 U.S. 825; McQueen v. Brown, No. 2:15-cv-2544 JAM AC P, 2018 WL 1875631

13(E.D. Cal. Apr. 19, 2018), report and recommendation adopted, 2018 WL 2441713 (E.D. Cal.

14

May 31, 2018); Tay, 457 F. Supp. 3d at 662; Zollicoffer v. Livingston, 169 F. Supp. 3d 687 (S.D.

15

Tex. 2016); see also Schwenk, 204 F.3d 1187. The U.S. Department of Justice has also

16

concluded that “[p]rison officials violate the Constitution by ... categorically refusing to assign

17transgender prisoners to housing that corresponds to their gender identity even if an

18

individualized risk assessment indicates that doing so is necessary to mitigate a substantial risk of

19

serious harm [.]”5
To make such a claim under the Eighth Amendment requires showing that “prison

20
21

officials knew of and disregarded a substantial risk of serious harm to the plaintiff.” Olive v.

22Harrington, No. 1:15-cv-01276, 2016 WL 4899177, at *5 (E.D. Cal. Sept. 14, 2016); see also

23

Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (“a prison official may be held liable if he

24

acted with ‘deliberate indifference’ to a substantial risk of serious harm”).
The first prong of the test, the “objective” component, asks whether the condition is25
26

sufficiently serious—sexual abuse, to which incarcerated transgender people are

27
5

28

Statement of Interest of the United States, Diamond v. Ward, 5:20-cv-00453, at *9 (M.D. Ga.
Apr. 22, 2021) (Doc. No. 65).
15

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disproportionately subject, is sufficient. Farmer, 511 U.S. at 833–34. So, too, is “unsolicited2sexual touching, harassment, and coercion,” which transgender women in men’s facilities also3experience at disproportionate rates. Thomas v. District of Columbia, 887 F. Supp. 1, 4 (D.D.C.

41995). The Proposed Intervenors’ stories demonstrate each of these harms, and as the California

5

legislature recognized when passing SB 132, incarcerated transgender people face them at far

6higher rates than their cisgender counterparts. See Dkt. No. 19-3–19-6.

7

The second prong, the “subjective” component, can be established by showing that the8plaintiff belongs to “an identifiable group of prisoners who are frequently singled out for violent

9attack by other inmates,” which transgender people undoubtedly are, or by showing that prison

10

officials “had been exposed to information concerning the risk,” which CDCR could not possibly

11

deny after receiving a transfer request. Farmer, 511 U.S. at 842–43 (citations omitted). CDCR

12

therefore could not foreclose pending transfer requests and send transgender women back to13

men’s facilities without violating the Eighth Amendment. See Becker v. Sherman, No. 1:16–cv–

140828, 2017 WL 6316836, at *5 (E.D. Cal. Dec. 11, 2017) (holding that a sudden change to15

incarcerated transgender woman’s protective housing status was sufficient to state a failure to

16

protect claim), report and recommendation adopted, 2018 WL 623617 (E.D. Cal. Jan. 30, 2018);

17

Tay, 457 F. Supp. 3d at 685 (“Given Plaintiff’s history of sexual harassment, assaults, and rapes

18

while incarcerated in the men’s division of IDOC, keeping her there may be tantamount to19

confining her in a cell with a cobra.”); Stover v. Corr. Corp. of Am., No. 1:12–cv–00393, 201520

WL 874288, at *9 (D. Idaho Feb. 27, 2015) (housing a transgender woman with male prisoners

21

created “such an obvious risk of sexual assault that the policy amounts to deliberate22

indifference”).

23

PREA. The relief that Plaintiffs request would also violate PREA’s requirement that a24

prison, “[i]n deciding whether to assign a transgender or intersex inmate to a facility for male or25

female inmates,” consider “whether a placement would ensure the inmate’s health and safety”

26

and give that person’s “own views with respect to his or her own safety ... serious consideration.”

27

28 C.F.R. § 115.42(c), (e). PREA also requires that an incarcerated transgender person’s housing

28

placement and programming assignments “be reassessed at least twice each year to review any
16

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threats to safety.” Id. § 115.42(d). Permanently enjoining Defendants from enforcing SB 132—2

and thus from complying with its requirements that transgender people “[h]ave their perception of3

health and safety given serious consideration” and that “their housing and placement shall be

4

reassessed” with any new safety concerns—would be ineffectual because PREA would require5essentially the same conduct. Cal. Penal Code § 2606.

6

Thus, the relief that Plaintiffs seek would not remedy any injury that they have alleged

7

because it would not permit CDCR to remove all transgender women from women’s facilities nor

8

foreclose the possibility of future transfers. Defendants’ obligations under the Constitution to9house transgender people free of a substantial risk of serious harm and discriminatory treatment,

10

as well as their obligations under PREA, would prevent them from simply reverting back to the11status quo that predated SB 132 even if the specific statute were enjoined. See, e.g., Norsworthy,

12

87 F. Supp. 3d 1104; Tay, 457 F. Supp. 3d 657; Doe, 2018 WL 2994403; Hampton, 2018 WL

135830730.

14

V.

CONCLUSION

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Plaintiffs’ complaint must be dismissed because in addition to the defects identified by

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Defendants in their Motion to Dismiss, Dkt. No. 15, Plaintiffs’ Eighth Amendment and equal

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protection claims rest entirely on the implausible theory that having to exist in the same facility as

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constitutional violation. Plaintiffs have failed to identify deliberate indifference to a substantial

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risk of serious harm apart from the bigoted and baseless assertions that transgender women are

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more likely than other women to commit assault, or that their mere presence imposes

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psychological terror on cisgender women. Neither have Plaintiffs identified any coherent equal

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protection theory, nor explained how SB 132 is not substantially related to an important

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government interest. Finally, Plaintiffs lack standing because the relief that they ask this Court to25

grant—declaratory and injunctive relief against SB 132 in all its applications—would not permit

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CDCR to inflict enormous constitutional injury on the rights of incarcerated transgender people

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across California and thus would not remedy their alleged injury. Proposed Intervenors

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respectfully request that the Court grant Defendants’ motion and dismiss Plaintiffs’ complaint.
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POINTS & AUTHORITIES ISO
MOTION TO DISMISSCASE NO. 1:21-CV-01657-JLT-HBK

Case 1:21-cv-01657-JLT-HBK Document 32 Filed 05/16/22 Page 24 of 24
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Dated: May 16, 2022

Respectfully Submitted,

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By:
s/ Nora Huppert
NORA HUPPERTRICHARD SAENZCHRISTINA S. PAEKLAMBDA LEGAL

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DIMITRI D. PORTNOIMICHAEL J. SIMEONEELIZABETH A. ARIASSHIVANI I. MORRISONO’MELVENY & MYERS LLPSHAWN MEERKAMPER
TRANSGENDER LAW CENTER
AMANDA C. GOAD
ACLU FOUNDATION OF SOUTHERNCALIFORNIA14SHILPI AGARWAL
ACLU FOUNDATION OF NORTHERNCALIFORNIA

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Counsel for Proposed Intervenors

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POINTS & AUTHORITIES ISO
MOTION TO DISMISSCASE NO. 1:21-CV-01657-JLT-HBK