State-level fights over housing anatomically male prisoners in women's prisons based on their gender identity may soon be joined by a federal battle.
A purported draft executive order by President Biden directs the attorney general to identify "necessary changes" to the Bureau of Prisons' (BOP) Transgender Offender Manual so that the agency can "designate individuals to [federal] facilities in accordance with their gender identity."
The bracketed paragraph is found on the 15th of an 18-image series of grainy photographs of a computer screen obtained by The Federalist. The word processing document is marked "draft - deliberative and pre-decisional - privileged and confidential," and it deals with criminal justice reform.
The White House didn't answer Just the News queries to verify the authenticity and status of the purported draft, but the Biden administration's plans to revisit its predecessor's transgender inmate policy are not new.
BOP confirmed the review to the Associated Press in September after a transgender militia leader was sentenced to prison for masterminding a mosque bombing.
The agency's Transgender Executive Council had to decide where to put Emily Claire Hari under Trump administration policy, which remains in effect, dictating "biological sex as the initial determination" for placement and limiting gender-identity placements to "rare cases."
"President Biden's plan to house male and female prisoners together will put women in danger," the Arkansas Republican said in a press release. "Documented cases prove that placing men — including ones who 'identify' as female — in women's prisons puts female inmates at increased risk of sexual assault."
Ethics and Public Policy Center fellow Nathanael Blake, who wrote The Federalist article, told Just the News he received the photos from a "reliable source" and that the document aligns with candidate Joe Biden's campaign promises.
The Justice Department claimed last spring it's unconstitutional to put transgender women in men's prisons, Blake noted, and NBC News reported Thursday Biden was planning to sign a police reform executive order, though it doesn't mention gender issues.
Cotton's office didn't answer queries on how he knows the purported order is authentic.
Conditions federal grants on banning coed prisons
Cotton's release emphasizes that S-3481, which has no consponsors, would not stop prisons from setting up "specific housing units for transgender inmates based on security, medical, or programming needs" as long as they aren't housed "with inmates of the opposite sex."
It could have a much greater effect on the states, however. "As a condition of receiving certain federal law enforcement grant funds," state correctional institutions would be barred from using gender identity to house opposite-sex inmates together.
California lets prisoners choose their gender identity for purposes of placement — and even bodily searches — regardless of sex reassignment surgery or hormone therapy, subject to bed availability and individual risk factors.
Among 288 requests by men's prison inmates to be moved to women's prisons since SB 132 took effect in January 2021, 41 have been approved, and 25 inmates have actually been moved, the San Francisco Chronicle reported last month. Another eight were denied, and a dozen "changed their minds."
The gender-critical Women's Liberation Front (WoLF) is suing to overturn the California law on behalf of female inmates, who claim it violates their First Amendment rights by scrubbing male references from their complaints about anatomically male inmates.
They also allege it constitutes cruel and unusual punishment for incarcerated women, most of whom have been victims of sexual or domestic violence by men, WoLF previously told Just the News. One plaintiff alleges a transgender inmate transferred under the law sexually assaulted her.
The court docket shows the case is now sealed. WoLF told Just the News Friday the state's response in court is due March 11.
Washington state is also transferring anatomically male prisoners into women's prisons, though the state ACLU convinced a court to block release of the exact number.
National Review reported last month that the transfers have "repeatedly sexually exploited their female roommates," citing a former guard and former inmate, but that correctional officials are fearful of would-be transfers suing them for discrimination if they conduct more stringent vetting.
Another effort to shine a light on gender identity practices has been repeatedly censored, according to the activist running the Gender Mapping Project.
"We are constantly told that no one is doing surgeries on children and that no one is prescribing cross-sex hormones to young children. We refute those claims with evidence," the project's website asserts.
Every video on the site has been removed by YouTube, founder Alix Aharon confirmed to Just the News.
"My project calls up gender clinics and confirms that they will do surgeries on minors," she wrote in an email. "Many of these doctors have agreed to do genital surgery on minors (15 years old, 12 years old) and the videos were damning."
In addition to "bizarre and dangerous surgeries like orchiectomy [testicle removal] and double mastectomy," Aharon said she got a referral for a 17-year-old to obtain "gender expansive bottom surgery" tailored to nonbinary patients.
She didn't respond to requests to share the takedown notices she received or provide alternate sources for the removed videos.
YouTube didn't respond to requests to confirm and explain the takedowns.