Housing an anatomical male in a women's prison is no different than housing two people of different races in the same cell, according to the California attorney general's office.
It's just one of several arguments the state is making in federal court to protect its law that lets prisoners choose their gender identity for purposes of placement — and even bodily searches — regardless of sex reassignment surgery or hormone therapy.
But the ACLU and transgender groups are not happy with Attorney General Rob Bonta's defense of Senate Bill 132, which took effect 16 months ago, against a constitutional challenge by so-called "trans-exclusionary" radical feminists.
They are seeking to intervene in the case on behalf of male-to-female prisoners, accusing the California Department of Corrections and Rehabilitation (CDCR) of intentionally misreading the law to give itself discretion to slow or even block transgender transfers on prohibited grounds.
What's noteworthy is one of their clients, the Transgender Gender-Variant & Intersex Justice Project (TGIJP), has publicly questioned SB 132 for requiring only gender self-identification for housing in women's prisons, predicting that male inmates will use it in bad faith.
The gender-critical Women's Liberation Front (WoLF) is challenging the law on behalf of four female inmates, two of whom allege transgender transfers assaulted them.
They say SB 132 violates their 1st, 8th and 14th Amendment rights, including by removing male references from their complaints against anatomically male inmates. WoLF's response to Bonta's motion is due by month's end.
WoLF has been fighting similar proposals in different states with mixed success.
Washington Gov. Jay Inslee (D) signed a bill (HB 1956) in March hiding basic information from the public about transgender transfers to women's prisons, including their reported assaults on women, in response to leaks from guards about some transfers' histories of violence against women.
But two weeks later, a Maryland self-identification bill (SB 550) similar to California's died in committee after WoLF testified against it. "Feminists and other supporters of single-sex spaces should take heart — if you show up, if you speak up, you can make a real impact to improve conditions for women and girls," the group said.
In his motion to dismiss, Bonta's office said "courts throughout" the 9th U.S. Circuit Court of Appeals, which oversees California, have rejected challenges to transgender transfers.
"Like inmates who have asserted living with inmates of a different race violates their free exercise rights," the filing said, "transgender inmates can be housed in women's facilities in a manner that is consistent with Plaintiffs' free exercise rights."
That's the same argument a prominent trans cyclist made to discredit opposition to biological males in women's sports, equating race and gender identity.
Even if the law were invalidated, transfers who preceded it won't be sent back to men's prisons, the office said, noting the law wasn't in effect when one plaintiff claims she was assaulted.
The attorney general urged the federal judge not to invalidate SB 132 before CDCR fully implements it, since future litigation in state courts might "remedy a constitutional defect by literally rewriting statutory language."
Bonta's office offered the court an easier exit: lack of legal standing.
To claim the law harms them, the four female inmates improperly "depend upon a chain of hypothetical events": assuming that "transgender women are more violent" and will seek a transfer to abuse them, and that CDCR won't screen would-be transfers for "management or security concerns."
He won a small battle Tuesday: Ex-offender nonprofit Woman II Woman withdrew as a plaintiff. Bonta claimed it had incorporated simply to file suit, so it lacks standing.
In response to the First Amendment claim, the attorney general argued prison staff are not obligated to repeat the "willful misgendering of transgender inmates" by female inmates, who are no more than "offended observers." It's also "demonstrably false" inmates are required to use preferred pronouns for their grievances to be reviewed.
Since transgender women "live, work, and change in front of cisgender women in a number of gender-exclusive spaces," the inmates can't allege their religious rights have been violated either, the state said.
The plaintiffs and state had different interpretations of CDCR's alleged promises that the former won't be housed with trans inmates. The female inmates said these promises are outside the law, while Bonta said it shows the plaintiffs contradicting their own claims.
CDCR's half-hearted implementation of the law is just one reason why Bonta can't represent transgender inmates, ACLU California affiliates, the Transgender Law Center and Lambda Legal argue in a motion to intervene filed Monday.
They seek to represent four transgender women, two of whom remain in male facilities, "who have variously been harassed, severely beaten, and sexually assaulted" by male inmates and CDCR staff alike.
Citing statistics similar to those promoted by WoLF on the state's reluctance to process transgender transfers, the groups said the vast majority of 321 requests are still pending, while not every inmate among the 46 approved has actually been transferred.
Would-be transfers have waited "many months" for hearings, requests have been dropped and denials issued without "statutorily required explanations," the filing said. Nothing in the law's text "permits CDCR to slow-roll its implementation."
CDCR grossly overstates its "discretion" to implement the law, elevating separation-of-powers arguments at the expense of equal protection, they said. Reversing transfers based on "management and security concerns" would never happen to non-transgender inmates.
WoLF and its clients have "weaponize[d]" the state's slow-rolling implementation, the groups said, characterizing the plaintiffs as bigots whose denial of gender identity violates the "judicial consensus."