Above photo: Dee Farmer, first transgender petitioner to have a case accepted by the United States Supreme Court. Matt Rhodes.
On his first day in office, President Trump 2.0 signed Executive Order 14168: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” EO 14168 sets in motion an attack on trans people throughout the country — then, using trans people as a springboard, an attack on incarcerated people as a whole.
Within weeks of Inauguration Day, Trump’s Federal Bureau of Prisons (FBOP) announced plans for implementing EO 14168. FBOP officials told the less-than-two-dozen trans women housed in women’s facilities that they would be summarily transferred to men’s prisons. The FBOP also banned any transition-related medical care for hundreds more trans people in its custody and control.
Two federal courts have already placed temporary restraining orders on the FBOP, preventing the transfers and medical bans from moving forward for now. The law backstopping these orders is well-established Eighth Amendment precedent — precedent that exists in its current form because of the struggle of an incarcerated trans woman, Ms. Dee Farmer.
In 1989, Farmer was teaching herself how to practice law while incarcerated in the FBOP. After an arbitrary transfer to a men’s prison notorious for violence, Farmer was physically and sexually assaulted. By this time, Farmer was well aware of her Eighth Amendment right to be free from cruel and unusual punishment. She filed suit against prison officials pro se. Farmer’s case was dismissed by the district court and rejected again at the Seventh Circuit, so she appealed her case to the Supreme Court of the United States.
Farmer v. Brennan, 511 U.S. 825 (1994) has been cited over 80,000 times. It established a foundational, uniform standard for Eighth Amendment “deliberate indifference”; if prison officials know of and fail to remedy a “substantial risk of serious harm,” they lose. Ms. Farmer’s litigation profoundly shaped constitutional law. Farmer has been cited in scores of medical cases: cases about trans people’s medical care, to be sure, but also cases about heart disease, smoke exposure and Abu-Jamal v. Kerestes, securing critical hepatitis C treatment.
Farmer is cited in Brown v. Plata, ordering tens of thousands of people to be transferred out of California’s dangerously overcrowded prisons. Farmer is cited in the Department of Justice’s scathing 2014 report on solitary confinement in the PA DOC.
Here we are again, with a generation of new Dee Farmers in the FBOP at risk. Under the law Farmer established, arbitrary transfers into dangerous environments and politically motivated cessation of medical care are plainly unconstitutional. Trump’s FBOP should not be able to endanger trans people today as long as the Farmer precedent holds. If Farmer is eroded, a generation of Eighth Amendment litigation preserving basic human dignity goes with it.
The choice of trans people as ground zero for this legal battle is no coincidence. Trump and his elite cabal of legal strategists, fresh from the [right-wing] Federalist Society and the Heritage Foundation, are aware that an open platform of immigration and cruelty is unlikely to gain popular support. They have picked the smallest and most vulnerable minority they can find, hoping that trans people in federal prison will not have allies to support them.
They are hoping that other incarcerated people will not catch on to their legal strategy and will not realize the need for solidarity. Their goal is to divide and conquer, pitting our communities against each other over internal divisions of race, gender, sexuality and identity while concentrating power into fewer and fewer hands. We must oppose every move together.
The fates of trans people and incarcerated people are not only intertwined, because some people are both incarcerated and trans. As Angela Davis reminds us, intersectionality is not only about the intersection of bodies and experiences, but of struggles.
Modern Eighth Amendment precedent exists in its current form because of Dee Farmer’s efforts. Abuse of trans people in federal prison will place an enormous strain on Farmer v. Brennan. All incarcerated people have a stake in this constitutional standard — so all have a stake in opposing EO 14168 and standing with the trans community against intensified repression.
This article is dedicated to Jerome “Hoagie” Coffey and his aunts Denise and Lisa Smith.
Lolo Serrano is a law student and history Ph.D. candidate, and dedicates this article to Jerome “Hoagie” Coffey and his aunts Denise and Lisa Smith.