The ACLU of Washington is suing the Washington Department of Corrections, alleging it violated a transgender woman’s constitutional rights under state law by forcibly transferring her from a women’s prison to confine her in a men’s prison. The transfer occurred after a guard discovered her engaging in consensual sex with her roommate. by Vivian McCall The ACLU of Washington is suing the Washington Department of Corrections, alleging it violated a transgender woman’s constitutional rights under state law by forcibly transferring her from a women’s prison to confine her in a men’s prison. The transfer occurred after a guard discovered her engaging in consensual sex with her roommate. On Tuesday, the organization filed a Personal Restraint Petition on behalf of Amber Kim, arguing that placing her in a men’s prison, where she is more likely to experience harassment and sexual violence is cruel under state constitutional standards. The petition requests that the state transfer her back to the Washington Corrections Center for Women. "DOC has stripped her of her humanity by taking her from the women's prison, where she was really, truly excelling, and put her in a place that we know will harm her, both physically and emotionally," says ACLU of Washington staff attorney Adrien Leavitt. "She has a history of physical abuse, sexual abuse, harassment, and emotional abuse in the men's prisons. We know that from studies that trans people are at huge risk of all of those things. It's not, sadly, like we're not guessing about whether that will happen to Amber, because we know it's already happened to her." The Washington DOC said that they do not comment on pending litigation. This March, an officer at Washington Corrections Center for Women (WCCW) in Gig Harbor discovered Kim and her roommate having consensual sex in their cell, which is against prison rules. The women were removed from their cell, separated, and placed in restrictive housing. At a disciplinary hearing, both Kim and her roommate were found guilty of a “504 Infraction,” a prison ban on intimacy. As punishment, both women were placed in closed custody, adding supervision and confining them to cells for longer than usual. Then, someone at the DOC leaked Kim’s disciplinary report to the conservative National Review, which published an account that played on sensational, right-wing tropes of trans women using their identity to get into bathrooms, changing rooms, and prisons for sexual gratification. (In March, the DOC said it was trying to find the leaker). Her life was less salacious. The infraction was her first and only write-up in the three-and-a-half years she lived at WCCW, where she attended college and tutored other inmates. Documents show Kim’s mental health improved after her transfer, and she reported other inmates treated her like any other woman. She told counselors she no longer wanted to give up on life.  Here the women’s punishments diverged. Months after her roommate left closed custody, Amber remained anxiously waiting without explanation. Her fears were realized when a DOC counselor allegedly told her the DOC was considering transferring her back to a men’s prison, a move the department had never made before. DOC policy allows it to remove inmates from gender-affirming housing if there are “documented, objective safety concerns.” After the infraction, a multidisciplinary team at WCCW reviewed Kim’s housing placement. WCCW Superintendent Charlotte Headley and others determined Kim should remain at the women’s facility, finding she was neither abused or an abuser in her time there. Five weeks later, the DOC reversed its decision. The DOC only adopted its trans housing policy in 2020, and since then only 11 out of the roughly 250 trans people in the system had entered gender-affirming housing. The DOC allows trans people to stay where they are if they want to—some have communities and relationships worth keeping—but the transfers are not a given, and granted on a case-by-case basis with fuzzy parameters. 504 Infractions are not uncommon, and sex is a reality of prison life. The DOC recorded 33 in the years Kim lived at WCCW, but she remains the only person transferred for one, and the only trans person in Washington removed from gender-affirming housing. On June 21, when corrections officers restrained Kim with a seatbelt-like device for a two-hour ride to Monroe Correctional Complex, where she arrived exhausted and unable to stand. According to the lawsuit, officers claimed Kim had tried to bite them, but rescinded the allegation after video evidence obtained by Disability Rights Washington showed she hadn’t.  When Kim arrived at Monroe, she learned the DOC planned to place her in TRU, a unit of primarily sex offenders, former gang members, and a small number of transgender women. Fearing for her safety, Kim went on a 17-day hunger strike, only suspending it for a gender-affirming tracheal shave. How the DOC May Have Violated Kim’s Rights The ACLU’s case draws from Robert Rufus Williams’s 2021 case before the Washington State Supreme Court, which sought relief from cruel conditions in the height of COVID. Leavitt says the Williams case in particular set an important precedent when it found that Washington’s State Constitution provides greater protections than the United States Constitution. In this case, Kim is sentenced to life without parole for murdering her parents. The ACLU argues that when statistics and Kim’s life experience shows harassment and the threat of sexual violence are omnipresent in male prisons, confining her to one violates her state constitutional right, without a valid penalogical reason to do so. Leavitt says the DOC may have a goal of tightening prison security, but housing Kim with men does not accomplish that. Statistics support Amber’s own documented history, showing the elevated risk for trans women in men’s prisons and jails. The Bureau of Justice’s 2015 National Inmate Survey found 35 percent of trans people in prison, and 34 percent of trans people in jail had been sexually assaulted within a year of their incarceration. It also found transgender inmates were nine times more likely to experience sexual harassment and assault than cis inmates. The US Trans Survey, the largest dataset of trans people in the US available, found trans inmates were five times more likely to be sexually assaulted by prison staff, and nine times more likely to be sexually assaulted by inmates. Thirty-seven percent of incarcerated trans people self-reported that they were assaulted in prison, compared with 3.4 percent of the cis population. The Prison Rape Elimiation Act even contains specific protections for gay and trans people. These statistics are not hypothetical for Kim, who has been incarcerated since she was a senior in high school. Even before her transition, Kim was slim and feminine. Men taunted her with slurs. After her transition, they propositioned her. At one point, she says men had passed her enough notes asking for sex to fill a brown paper lunch bag. Most of these notes included a time the men would be waiting for Kim in the showers. She kept track of these times to avoid running into them.   When Kim complained to a job supervisor in prison that a coworker, convicted of sex offense, was aggressively pressuring her for sex, she was fired, according to the lawsuit. Male corrections officers allegedly inappropriately touched her breasts during pat downs. According to the suit, she eventually reported her experiences saying that she did not “feel safe” in a men’s prison. She still doesn’t. In August, during a transfer from Monroe Correctional Complex to Airway Heights for a gender-affirming procedure, male inmates yelled sexual comments and slurs from the seats behind her. Others debated the existence of trans people. Upon her return to Monroe, Kim told DOC she would not enter the general population, where she would face a Catch-22. Hormones alleviate her debilitating gender dysphoria, but the more feminine she becomes, the more unwanted attention men would give her. Years before the Williams case, the US Supreme Court found that the Eighth Amendment protects incarcerated people from cruel and unusual punishment.  In 1989, Dee Farmer, a Black trans woman imprisoned in Terre Haute, Indiana was brutally beaten and raped in her cell. She sued prison officials for mental anguish, psychological damage, and humiliation. The justices ruled unanimously in Farmer’s favor, finding prison officials created an “objectively intolerable risk of harm” and acted with “deliberate indifference to this harm.” In Farmer’s case, officials knowingly placed  a young, non-violent trans woman to a maximum security prison, and disregarded that risk. According to the ACLU, tens of thousands of cases have cited Farmer. But “deliberate indifference” is hard to prove in court. In Washington, you don’t have to because this federal standard falls short of our state protections.  The court decided this when Robert Rufus Williams brought his Personal Restraint Petition at the height of COVID, seeking relief from cruel conditions under the state constitution. Williams, a 77-year-old Black man with diabetes, hypertension, and complications from a stroke that immobilized his right side, had been kept in a “dry” cell without a toilet or sink. When waiting for staff to wheel him to an accessible bathroom, Williams urinated in bottles. He struggled to keep himself clean. This State Supreme Court found failing to meet Williams’s basic sanitary needs did not meet penological goals of retribution, deterrence, incapacitation, and rehabilitation in violation of Article 1, section 14 of the Washington State Constitution. The justices also concluded that the “deliberate indifference” standard assumed that poor conditions can only be considered punishment if a prison official subjectively intended them as punishment, or that cruel conditions can arise from “institutional policies and practices just as readily as from intentional acts by individual prison officials.”  This established a subjective, two-part inquiry for inmates challenging their conditions in Washington far more protective than the federal precedent set in Farmer v. Brennan. To be granted relief, the decision found, inmates must prove “(1) those conditions create an objectively significant risk of serious harm or otherwise deprive the petitioner of the basic necessities of human dignity and (2) those conditions are not reasonably necessary to accomplish any penological goal.” Since Williams, no one has been granted relief based on cruel conditions of confinement, and Kim’s case is likely the first to challenge how the DOC houses trans people on that standard. “What we can infer from the Washington State Supreme Court’s discussion of Dee Farmer’s case is that Washington State would not tolerate Dee Farmer’s conditions of confinement,” Leavitt says. “Our state would be more protective of her, and I think that’s profound, especially as we compare that with Amber’s case right now.” Kim’s Life in Isolation The degree to which Kim’s life has worsened can be measured in absolute terms: She’s gone from being a full-time college student with friends to sitting in solitary confinement. But it’s clearest in her voice. Her affect is flat over the phone in Leavitt’s office. She’s calling on a tablet from her cell. Every few sentences, the signal fizzles to an electronic garble.  “I’m definitely feeling the weight of isolation,” she says. “I will not even pretend to be psychologically okay.” She can’t hug friends because she’s not allowed contact visits. She has three books and video games on her tablet, but lives mostly in isolation, cycling from her cell, to the shower, to the unit yard—a small concrete room with a chin-up bar. She believes other prisoners don’t know she’s there, as they’ve taken to harassing another trans woman in her cell block who catches “no end of shit.” As Kim told The Stranger this summer, the irony of forcing a trans woman into a men’s prison, supposedly to stop sex from happening, is that the life of a trans woman in a men’s prison is a barrage of sexual harassment and slurs. The abuse worsened as her transition progressed, and only wavered when she had a boyfriend, a calculated trade of sex for safety.  This time, she’s traded freedom for safety. As she wrote in an affidavit, “If I am eventually placed in men’s general population, I will live in constant fear.”