A Trans Woman Was Moved Back To A Men’s Prison. Now She’s Suing.

The first transgender woman to be removed from women’s housing in a Washington state prison filed a lawsuit on Tuesday, alleging that the state Department of Corrections’ decision to forcibly place her in a men’s prison violated the state constitution’s prohibition on cruel punishment.

Amber Kim, who was transferred back to a men’s prison in June, has chosen to live in solitary confinement, which the United Nations recognizes as a form of torture, rather than live in general population at Monroe Correctional Facility.

“If I am eventually placed in men’s general population, I will live in constant fear. I am afraid of physical assault, sexual assault, and the constant harassment,” Kim wrote in a declaration. “I will face the ultimate paradox: my continued physical transition helps address my debilitating gender dysphoria, but the more female-presenting I become in appearance, the more unwanted, nonconsensual attention I will receive from the men in prison.”

Trans people, who face disproportionate rates of incarceration, are also disproportionately likely to be victims of violence once locked up. But without access to treatments, trans people with gender dysphoria face higher rates of depression, anxiety, substance abuse and self-harm, including suicide.

Kim was previously the subject of a HuffPost story about her 15-year fight for gender-affirming health care and housing in prison. The story documented Kim’s struggle to access a legal name change, hormone therapy and, eventually, placement in women’s housing. After multiple denials, which included suggestions that Kim posed an inherent threat to female prisoners, Washington’s Department of Corrections finally allowed Kim to move to a women’s prison in 2021.

“Without the emotional burden of facing constant harassment and spending my time avoiding physical violence, I was able to focus on my mental health, plan for the future, and engage with positive programming,” Kim wrote in the declaration.

A team of prison officials, required to review trans prisoners’ housing placement at least every six months, wrote in a July 2021 report that Kim reported feeling ready to give up on life while at the men’s prison but began looking forward to the future after transferring to the women’s facility. A shift supervisor described her as “reliable and dependable.”

In March, Amber was caught having consensual sex with her cisgender roommate in their cell. The following week, the National Review published an inflammatory story about the incident, citing a leaked disciplinary report. The story, which deadnamed and misgendered Kim, included no allegations of assault or non-consensual activity, but described transgender women as “male inmates who identified as women” in order to sexually exploit women in prison.

DOC rules forbid any sexual activity, consensual or otherwise. Both Kim and her roommate were found guilty of a so-called 504 infraction, the act of “engaging in a sex act with another person(s),” and were placed in a more restrictive unit in the women’s prison.

In April, DOC conducted another housing review for Kim and concluded that she should remain in the women’s prison. Although housing reviews typically occur every six months, DOC held another review five weeks later and reversed its decision.

The “sudden reversal … was arbitrary, in bad faith, and lacking a legitimate penological purpose,” Kim’s lawyers, Adrien Leavitt and La Rond Baker, wrote in her petition, noting that Kim did not receive any additional disciplinary infractions between the two decisions.

Federal law requires that trans prisoners’ fears for their safety “be given serious consideration” when determining housing placement. “DOC’s baseless transfer decision defies its own well-found reasons for placing Ms. Kim at [Washington Corrections Center for Women] nearly four years ago,” her lawyers wrote. “For Ms. Kim, the risk of violence, sexual assaults and harassment is not merely speculative. … Prior to her transfer to WCCW, Ms. Kim experienced … two attempted sexual assaults, inappropriate touching by DOC employees, and ongoing sexual and verbal harassment by male inmates.”

Despite DOC’s prohibition on sex, intimacy is commonplace in prisons.

“Life doesn’t stop because people are in prison,” Starr Lake, who was incarcerated at WCCW for more than 20 years and briefly overlapped with Kim, previously told HuffPost. People facing long prison sentences “really do their best to live their life as normally as they can within the confines of the institution they’re in — and so that means having relationships, making connections and behaving as any healthy adult would.”

When Lake first got to prison, the DOC used to allow brief hugs, but eventually banned them, too. “They were like, ‘No hugging. No touching,’” she said. “I can’t imagine who I would be today if I spent 24 years in prison and never had a hug. I can’t imagine.”

Much of the intimacy goes undetected or ignored by prison staff, but there were 33 504 infractions at WCCW between the time that Kim arrived at the prison and when she was caught. Kim was the only person who was transferred to another facility as a result, DOC communications director Chris Wright previously told HuffPost. In fact, Kim’s cisgender roommate, who also received a 504 infraction, has since been returned to the same, less-restrictive custody status she was held under before she and Kim had sex, according to Kim’s petition.

“The difference between Ms. Kim’s treatment and that of her cisgender roommate is a stark illustration of DOC’s cruel treatment of Ms. Kim, exposing her to physical violence and serious mental health consequences,” Kim’s lawyers wrote, accusing DOC of “punishing Ms. Kim for her status as a transgender woman.”

In June, guards came to Kim’s cell and told her she was going into solitary confinement, she wrote in the declaration. She “didn’t think much of this” and agreed to be handcuffed. But once the guards started placing her in waist restraints she started to panic, she wrote. As she was led to the intake hallway, she realized she was being taken out of the women’s prison.

She asked to speak with her lawyer and begged the guards not to carry out the transfer. “I stopped walking, but I did not physically resist. The officers slammed me onto the ground. I screamed for help. Multiple officers piled on top of me. I felt like my body was being crushed into the floor,” Kim said in the declaration.

The guards placed Kim in a restraint system called a WRAP, which prevented her “from moving at all,” she wrote, and put her in the back of an SUV. At the time, Wright, the DOC communications director, told HuffPost that Kim “attempted to assault” staff during the transfer, which Kim denies. Asked to provide video footage of the transfer, Wright directed HuffPost to file a formal public records request. HuffPost obtained video of Kim in the WRAP device in the back of the car, but DOC declined to release the earlier footage of prison staff forcibly removing Kim from the prison.

Disability Rights Washington, a legal services group that is designated under federal law to protect the rights of people with disabilities, reviewed all surveillance and video footage related to the transfer. “Contrary to DOC’s statements to the press, DRW found no reliable evidence that Ms. Kim attempted to assault staff during her transferring,” DRW attorney Rachael Seevers wrote in an email to DOC that was filed with Kim’s lawsuit.

Seevers asked DOC to retract its claim and remove references to the attempted assault from its internal reports, which the agency agreed to do, according to Kim’s petition.

Once at the men’s prison, Kim learned she was set to be placed in a unit that houses people convicted of sex offenses, former gang members, and a small number of transgender women. “I knew I would not be safe,” Kim wrote. She began a hunger strike that lasted for 17 days, only suspending her protest action when DOC indicated she would be denied access to an upcoming surgery, she wrote.

“I felt that DOC was trying to force me to choose between safe housing or a gender affirming surgery that would allow me to live my life more fully,” Kim wrote.

In August, Kim was transferred to another prison for the procedure. She was placed in a cage in a bus, several rows in front of incarcerated men. For “ten hours, I heard them yelling sexually suggestive comments and anti-gay slurs at me, and even debating the very existence of transgender people,” Kim wrote. “I felt emotionally exhausted and traumatized. It reinforced my fear of what would happen if I was in prison with men.”