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ACLU, Disability Rights Washington fighting release of records tied to Washington’s transgender prison population

May 12, 2021 Updated Wed., May 12, 2021 at 9:31 p.m.

A fence topped with barbed wire surrounds the Airway Heights Corrections Center on July 9, 2018. The American Civil Liberties Union and Disability Rights Washington are representing five transgender inmates seeking to prevent release of their records to members of the media.  (Dan Pelle / The Spokesman-Review)
A fence topped with barbed wire surrounds the Airway Heights Corrections Center on July 9, 2018. The American Civil Liberties Union and Disability Rights Washington are representing five transgender inmates seeking to prevent release of their records to members of the media. (Dan Pelle / The Spokesman-Review)

A nonprofit working to improve living conditions for transgender Washington inmates and the American Civil Liberties Union are fighting attempts by multiple media outlets to access public records that would number and identify the state’s gender-nonconforming prison population.

An attorney representing five anonymous inmates argued against the release of the records in a federal courtroom in Spokane on Wednesday afternoon. The Washington Department of Corrections has prepared the records for release, but Disability Rights Washington and the ACLU argue doing so would cause irreparable harm to the 149 incarcerated people who identify as transgender, particularly because some of the records sought are forms completed by transgender inmates seeking protection from harm in prisons.

“Our clients have no choice but to participate in this, to try to ensure their safety in the system,” said Katherine Forster, an attorney for the law firm Munger, Tolles & Olsen representing the unnamed transgender inmates seeking to prevent release of the records.

Under a federal law passed in 1993, inmates are assessed upon entry into prison for risk factors of sexual violence. A prison employee conducts a one-on-one interview with each person, which includes a form where a person can identify their pronoun preferences and a housing review form for transgender inmates that asks questions about abuse and changes in physical appearance, among other questions. That form includes a disclaimer at the top that the information may be released publicly.

An initial order from Judge Thomas O. Rice blocked the records’ release, which the Corrections Department admitted could include the housing review forms. Rice did so without hearing from KIRO Radio or the Tacoma News Tribune, the news outlets that made requests for the number of inmates, said Michele Earl-Hubbard, an attorney representing the media outlets. The public records requests included documents identifying the names and number of transgender inmates, whether they’d requested gender-reassignment surgery following the Ninth Circuit Court’s ruling that such operations must be provided to prisoners and transfers of transgender inmates from one institution to another and more.

Earl-Hubbard said the federal lawsuit was brought by the groups to bypass the state process of determining what records are releasable under Washington’s Public Records Act. Preventing their release would shield the Corrections Department from public scrutiny about their treatment of the population, Earl-Hubbard argued.

“What this case is trying to do is to take away the ability of the requesters to monitor the actions of the agency,” Earl-Hubbard said. Earl-Hubbard has represented The Spokesman-Review in previous legal cases, including a lawsuit seeking access to state legislators’ records, but the newspaper is not a current party to the lawsuit heard Wednesday.

The Department of Corrections argues in legal filings there is no provision of the state’s Public Records Act preventing the release of some sought-after materials. However, information about the number of inmates who have requested gender reassignment surgery, and their identifying information, is contained within personal health records that could not be released without a waiver from the inmate, the department contends. Medical information on the housing review form would likely be redacted before release.

The Spokesman-Review has joined several others in filing similar records requests with the Department of Corrections for the documents.

Disability Rights Washington had been conducting its own investigation into the treatment of transgender prisoners dating back to 2017, according to court pleadings. In December 2019, the nonprofit entered what’s known as a structured negotiations agreement with the Department of Corrections to monitor medical care and treatment of transgender prisoners, in lieu of taking legal action against the agency.

“The negotiation concerns the provision of medically necessary care, appropriate housing, and equal access to commissary, property, and programming for transgender people with disabilities in DOC custody,” attorneys for the nonprofit said in a statement Wednesday about the agreement. “Disability Rights Washington is hopeful that these ongoing negotiations about systemic issues will result in improvements in the care and conditions for many transgender people with disabilities in DOC custody.”

In their request for a preliminary injunction halting the release of the records, a decision that must be made by Tuesday per the court-ordered deadlines imposed by Rice, Disability Rights Washington and the ACLU included arguments against the potential harm from the unnamed plaintiffs.

“I also know that a lot of people do not like transgender people. They think we are perverse and bizarre, and they are afraid of us,” one woman, housed at the Washington Corrections Center for Women in Gig Harbor, wrote. “They don’t want to live with us, they don’t want to work with us, and they want to hurt us. I honestly fear for my safety and for my life when I leave prison.”

Earl-Hubbard argued that entering an order preventing the release of records would make it harder for reporters to potentially uncover issues of mistreatment and abuse within prison walls.

She told Rice that he was hearing “inflammatory examples of what might get revealed, what might get released.” But he hadn’t been able to view the records to determine whether their release would violate Constitutional protections of privacy and against cruel and unusual punishment, as argued by Disability Rights Washington and the ACLU.

Rice did not make a ruling Wednesday on the request to temporarily block the records’ release. He indicated in court he’d rule by early next week.

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