REPORT AND RECOMMENDATION Petitioner JJS is a transgender woman who is currently in the custody of the U.S. Bureau of Prisons and designated to a men’s facility. She filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. §2241, seeking transfer to a women’s facility and an order compelling BOP to provide her gender affirming surgery. After considering the evidence and relevant authority, I recommend that the Court grant Petitioner’s writ in part and order that she be transferred immediately to a women’s facility.1 FACTUAL BACKGROUND I. Gender Dysphoria and Standards of Care At birth, people are typically assigned a gender. That assigned gender usually correlates with the person’s external physical characteristics and genitalia: someone with male characteristics is thought to be a man, and someone with female characteristics is thought to be a woman. For many, the gender they were assigned at birth corresponds to their gender identity — that is, the gender they know and perceive themselves to belong to. But “[w]hen a human’s internal sense of belonging to a particular gender — also known as gender identity — is different than the identity assigned at birth to that individual, he or she is transgender.” Iglesias v. Fed. Bureau of Prisons, No. 19-cv-415 (NJR), 2021 WL 6112790, at *2 (S.D. Ill. Dec. 27, 2021), modified, 2022 WL 1136629 (S.D. Ill. Apr. 18, 2022). Some transgender people experience gender dysphoria, a serious medical condition defined as “distress that accompanies the incongruence between one’s experienced and expressed gender and one’s assigned or natal gender.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 822 (5th ed. 2013). Gender dysphoria manifests as at least two of the following: (i) “marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics”; (ii) “strong desire to be rid of one’s primary and/or secondary sex characteristics because of” said “marked incongruence”; (iii) “strong desire for the primary and/or secondary sex characteristics of the other gender”; (iv) “strong desire to be of the other gender”; (v) “strong desire to be treated as the other gender”; and (vi) “strong conviction that one has the typical feelings and reactions of the other gender.” Id. §302.85. The condition “is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Id. “Most courts agree” that the World Professional Association for Transgender Health Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“WPATH Standards of Care”) “are the internationally recognized guidelines for the treatment of individuals with gender dysphoria.” Edmo v. Corizon, Inc., 935 F.3d 757, 769 (9th Cir. 2019) (collecting cases); see Cruz v. Zucker, 195 F. Supp. 3d 554, 563 n.4 (S.D.N.Y.) (putting “significant weight on the WPATH Standards of Care”), on reconsideration on other grounds, 218 F. Supp. 3d 246 (S.D.N.Y. 2016). Similarly, many of the “major” medical and mental health groups in the United States “recognize the WPATH Standards of Care as representing the consensus of the medical and mental health communities regarding the appropriate treatment for transgender and gender dysphoric individuals.” Edmo, 935 F.3d at 769; see Iglesias, 2021 WL 6112790, at *2 (“[T]he American Medical Association, the Endocrine Society, the American Psychological Association, the American Psychiatric Association, the World Health Organization, the American Academy of Family Physicians, the American Public Health Association, the National Association of Social Workers, the American College of Obstetrics and Gynecology, and the American Society of Plastic Surgeons endorse all the protocols in accordance with WPATH’s Standards of Care.”). According to the most current version of the WPATH Standards of Care, released in 2011, the “number and type” of therapeutic interventions applied for gender dysphoria differ from person to person but include: changes in gender expression and role, which may involve living part or full time in a gender role consistent with one’s gender identity; hormone therapy; surgery to change primary and/or secondary sex characteristics to align with one’s gender identity (i.e., gender affirming surgery, or “GAS”); and psychotherapy. World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 9-10 (7th ed. 2011) (hereinafter Standards of Care).2 Underscoring the flexibility of the Standards of Care and the need to apply them on an individualized basis, WPATH notes that while many transgender people find “comfort with their gender identity, role, and expression without surgery, for many others [gender affirming] surgery is essential and medically necessary to alleviate their gender dysphoria.” Id. at 54. Generally, WPATH recommends that GAS not be performed on a person’s genitals until they have lived continuously for at least 12 months in the gender role that is congruent with their gender identity. Id. at 21. BOP uses the WPATH Standards of Care as a “guide” but does not follow them “in entirety” because the standards were not developed “specifically for correctional settings.” Iglesias, 2021 WL 6112790, at *2. WPATH recommends, however, that “[h]ealth care for transsexual, transgender, and gender nonconforming people living in an institutional environment should mirror that which would be available to them if they were living in a non-institutional setting within the same community.” Standards of Care at 67. “Housing…for transsexual, transgender, and gender nonconforming people living in institutions should take into account their gender identity and role, physical status, dignity, and personal safety.” Id. at 68. Finally, WPATH cautions: “Institutions where transsexual, transgender, and gender nonconforming people reside and receive health care should monitor for a tolerant and positive climate to ensure that residents are not under attack by staff or other residents.” Id. At the evidentiary hearing, BOP witness Jenna Epplin agreed that the Standards of Care are “appropriate treatment” for gender dysphoria. ECF No. 68 (June 28, 2022 Tr.) 163:11-17. II. BOP’s Policies and Procedures A. Designation and Transfer of Transgender Prisoners and GAS On January 18, 2017, the BOP released a Transgender Offender Manual (the “Manual”) to “ensure the [BOP] properly identifies, tracks, and provides services to the transgender population.” Fed. Bureau of Prisons, Program Statement 5200.04, Transgender Offender Manual 1 (2017).3 The 2017 Manual established the Transgender Executive Council (“TEC”) “to offer advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with [gender dysphoria], including designation issues.” Id. at 4. The Manual incorporated the Prison Rape Elimination Act (PREA) regulations on the management of transgender inmates into the BOP’s procedure for designating inmate placement: In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates…the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems. Id. at 5 (citing 28 C.F.R. §115.42(c)). Under the terms of the 2017 Manual, the TEC “will recommend housing by gender identity when appropriate.” Id. at 6. In making that determination, the TEC considers: “an inmate’s security level, criminal and disciplinary history, current gender expression, medical and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.” Id. The BOP revised the Manual in 2018. See Fed. Bureau of Prisons, Program Statement 5200.04 CN-1, Transgender Offender Manual 1 (2018).4 The most significant change was to require the TEC to “use biological sex as the initial determination for designation” or transfer. Id. at 10. Under these revised guidelines, “designation to a facility of the inmate’s identified gender would be appropriate only in rare cases after consideration of all of the…factors and where there has been significant progress towards transition as demonstrated by medical and mental health history, as well as positive institution adjustments.” Id. at 10-11. The BOP expanded the list of factors that the TEC was to consider to include “the health and safety of the transgender inmate, exploring appropriate options available to assist with mitigating risk to the transgender offender, to include but not limited to cell and/or unit assignments, application of management variables, programming missions of the facility, etc.,” “factors specific to the transgender inmate, such as behavioral history, overall demeanor, and likely interactions with other inmates,” and “whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution (e.g., considering inmates with histories of trauma, privacy concerns, etc.).” Id. at 10. The BOP revised the Manual again in 2022. See Fed. Bureau of Prisons, Program Statement 5200.08, Transgender Offender Manual (2022) (hereinafter 2022 TEC Manual).5 The 2022 Manual removed the 2018 Manual’s requirement that the TEC use biological sex as its initial determination for designation or transfer. Id. at 5-7. In its revisions, the BOP restored the 2017 list of factors as the key factors that the TEC is to consider when determining a transgender person’s facility designation. The 2022 Manual again directs the TEC to consider “factors including, but not limited to, an inmate’s security level, criminal and behavioral/ disciplinary history, current gender expression, programming, medical, and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.” Id. at 6. The TEC must also consider “the wellbeing of all inmates while exploring appropriate options available to assist with mitigating risk to the inmate, to include but not limited to cell and/or unit assignments, application of management variables, programming missions of the facility, and security of the institution.” Id. In making housing determinations, the 2022 Manual directs that a transgender person’s “own views with respect to his/her own safety must be given serious consideration.” Id. In reviewing the relevant factors, the TEC “will consider on a case-by-case basis that the inmate placement does not jeopardize the inmate’s wellbeing and does not present management or security concerns.” Id. Unlike the 2017 and 2018 Manuals, the 2022 Manual also contains a provision specific to “situations where the transfer request is related to progressing the individual inmate’s transition.” Id. at 7. The TEC is to consider such cases after the Warden of the individual’s current facility submits documentation to the TEC showing the person has “met the minimum standards of compliance with programs, medications and mental health treatment, and [is] meeting hormone goal levels.” Id. Individuals “may be considered for submission on a case-by-case basis by the Warden, as appropriate.” Id. The 2022 Manual recognized for the first time that gender affirming surgery may be medically appropriate. “[S]urgery may be the final stage in the transition process and is generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender affirming facility.” Id. at 9. In other words, while there is technically no requirement that a transgender prisoner live at a facility aligned with their gender for a year before the BOP will consider a request for GAS, in practice, the BOP will not consider such requests until they do. Testimony at the evidentiary hearing confirmed this. June 28, 2022 Tr. 122:7-18, 122:25-123:9. The TEC currently consists of senior level staff members from the Women and Special Populations Branch, the Psychology Services Branch, Health Services Division, and the Designation and Sentence Computation Center and meets a “minimum of monthly to offer advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with [gender dysphoria], including training, designation issues, and reviewing all transfers for approval.” 2022 TEC Manual at 4. The TEC is the BOP’s “official decision-making body on all issues affecting the transgender population.” Id. B. Sex Offender Management Programming The BOP offers two kinds of sex offender management programs (“SOMP”) to prisoners with a history of sexual offenses.6 All SOMPs are voluntary. The residential SOMP involves “high intensity” group programming for 12 to 18 months, five days per week, and requires that participants live in a residential housing unit with other participants. The residential SOMP is offered only at USP Marion and FMC Devens, which are both men’s facilities. The non-residential SOMP consists of outpatient group treatment for 9 to 12 months, two to three times per week, and is offered at men’s and women’s facilities (e.g., FMC Carswell). See June 28, 2022 Tr. 60:5-19. Ten BOP facilities in total offer residential or non-residential SOMP. Id. 61:23-25. If a prisoner wants to participate in SOMP, the BOP conducts a risk assessment to appraise “each treatment participant’s recidivism risk level” to determine whether the residential or non-residential program best meets that person’s treatment needs. Fed. Bureau of Prisons, Program Statement 5324.10, Sex Offender Programs 14 (2013).7 The residential SOMP is designed for high-risk prisoners, and the non-residential SOMP is for low — to moderate-risk prisoners. Id. To assess a prisoner’s risk, “SOMP staff rely on actuarial risk assessment measures coupled with consideration of other clinically relevant factors.” Id. at 8-9. SOMP staff review relevant documentation, score an actuarial instrument called Static-99R, and sometimes interview the person being assessed. The non-residential SOMP is considered appropriate for people who cannot be scored by Static-99R or who are deemed by SOMP staff to be appropriate for a moderate-intensity program based on their sex offense or criminal history and other risk factors. Id. at 22. Static-99R uses a ten-item checklist to assess risk of recidivism for adult men with a history of sexual offenses. See June 28, 2022 Tr. 64:2-16; see also SAARNA, Static-99R Users, https://saarna.org/static-99/ (last visited June 30, 2022). It is not dynamic, which means it does not consider the age of the sexual offense, previous participation in sex offender treatment, or any other intervening changes in the person’s life since the offense. June 28, 2022 Tr. 78:20-21, 79:18-22, 79:23-80:2. According to testimony at the evidentiary hearing, the BOP uses Static-99R to evaluate only prisoners who have a penis, including transgender prisoners. Id. 65:6-14. Transgender prisoners who are anatomically male are scored the same way as cisgender male prisoners. Static-99R does not take hormonal changes into account. Id. 65:15-22. Static-99R instrument is not validated for use on women, and at least one study has found that it does not predict sexual recidivism among women.8 Women in BOP custody who have a history of sexual offenses are considered low-risk, and BOP offers only non-residential treatment at women’s facilities. Id. 83:4-13. As of June 28, 2022, there were nine transgender women in BOP custody participating in residential SOMP (in men’s facilities). Id. 84:13-85:12. There were no transgender women participating in non-residential SOMP in women’s facilities, but there is no BOP policy prohibiting them from doing so. Id. 84:16-85:4. III. JJS’s Early Years Petitioner is 58 years old and was born and grew up in rural Indiana. ECF No. 70 (June 29, 2022 Tr.) 4:4-9. She started noticing that her gender identity did not match her gender assigned at birth at age 5, when she realized that it “wasn’t right” for her to have a penis. Id. 8:5-18. As a child, Petitioner would hide in the bathroom with the door locked and wear her sister’s clothes, shave her legs, and wear makeup, but did not express her gender identity outwardly. Id. 15:19-16:2. Other children called her “gay” and associated slurs because, when she was around 4 years old, a couple of older boys exposed themselves to her and forced her to perform oral sex on them. Id. 16:24-17:6. When Petitioner was 12 years old, an older boy (around 17 years old), picked her up in his car while she was on a walk, took her to a secluded area, performed oral sex on her, beat her up, and left her in a ditch. Id. 17:16-18:5. Petitioner did not receive any mental health counseling after the attack. Id. 18:15-17. She attended high school until her junior year, then quit and joined the Navy, where she received her GED, and subsequently earned a four-year bachelor’s degree. Id. 4:10-15, 5:3-18. In the Navy, Petitioner wore women’s dungaree shirts in secret but otherwise did not outwardly express her gender identity. Id. 19:25-20:7. While in the Navy, she was again sexually assaulted: after the yeoman for Petitioner’s executive officer helped her get a promotion, he anally raped her. Id. 21:9-22:13. She never reported the assault because he told her that she would be court-martialed or dishonorably discharged if she did. Id. 22:14-22. Petitioner’s work performance deteriorated, id. 23:20-24:7, and she ultimately did “everything that [she] could to get out, to go home,” id. 24:19-20. She was discharged at 19 and did not have stable housing for three months. She then lived with a boyfriend, was briefly married, and subsequently spent 1985-86 in prison for burglary and arson of an unoccupied dwelling. Id. 5:19-6:12, 27:25-28:2. Petitioner described herself as an alcoholic who was “constantly drunk,” starting at age 12 until she was arrested in 1993 at age 29. Id. 14:16-15:6. After Petitioner got out of prison in 1986, she moved in with her then-girlfriend, with whom she has a daughter. Id. 30:16-31:2. At that time, Petitioner wore women’s underwear in secret: “It was the only thing that I could do. I mean I couldn’t do makeup, I couldn’t do hair, I couldn’t do dresses, I couldn’t do shoes, jewelry, I mean there was nothing that I could, I couldn’t act like a girl, there was nothing I could do.” Id. 33:13-17. IV. State Custody and Rehabilitation In 1994, Petitioner pleaded guilty in two Indiana state cases: to child molestation of a nine-year-old boy (a Class B felony) in the first case, and to rape of a seventeen-year-old girl (a Class B felony) and criminal deviate conduct (a Class B felony) in the second case. See ECF No. 13-3 (State Court Documents). She was sentenced to two 18-year terms in state prison to run consecutively. Id. She was released on parole after 18 years but violated the terms of her parole (for having internet access in her apartment) and was returned to prison for six years. She was finally released from state prison in 2015. June 29, 2022 Tr. 6:22-7:2, 41:23-42:5. While in state prison, Petitioner participated in a substance abuse treatment program for seven years, regularly saw a psychologist, and began taking anti-depressant medication. Id. 37:11-21. She also participated in Indiana’s sex offender treatment program, known as Sex Offender Management and Monitoring (SOMM). Id. 37:22-38:18. The program lasted for 18 months and included a 3-month orientation phase as well as a group therapy and treatment phase. Id. 39:2-40:15. Petitioner participated in both phases until she was paroled after 15 months of programming. Id. 40:16-21. Petitioner continued to attend SOMM group therapy as a condition of her parole. Id. 44:6-20. She also found a counselor at the Midtown Mental Health Center in Indiana, where she went weekly to treat her gender dysphoria, post-traumatic stress disorder, depression, and anxiety. Id. 45:17-19. Additionally, she voluntarily sought injections of Depo-Provera to lower her testosterone levels because she had a history of sex offenses and “wanted to make sure that that never happened again.” Id. 46:5-22, 48:4-6. Depo-Provera is commonly referred to as “chemical castration.”9 She testified about this decision: “[O]n top of counseling and everything else I just wanted to make sure that I had done everything that I could possibly do to be successful.” Id. 48:8-11. She took Depo-Provera for about six months; then she started taking hormone treatment to aid her gender transition, and her medical team determined that continuing to take Depo-Provera would be redundant. Id. 50:11-24. V. Gender Dysphoria Diagnosis and Treatment Petitioner was diagnosed with gender dysphoria at the Midtown Mental Health Center at the age of 51. She testified that it was a “relief” to have the diagnosis as an explanation for her feelings: “I have never been comfortable as a male. Everything that I’ve ever tried to do as a male has been a failure. I’m — I hate my body, you know, people see a 6’2″ tattooed prisoner, I see a girl.” Id. 9:13-19, 49:11-17. Petitioner has regularly experienced symptoms associated with gender dysphoria, including depression, anxiety, suicidal ideation, and self-mutilation. Id. 10:8-21 (“Q: And have you at various points in your life experienced any of these symptoms? A: Daily.”). She explained that she had thought about committing suicide but had never attempted to kill herself due to her religious convictions and because of her daughter. Id. 11:9-22. When Petitioner was a child, she tried to cut off her own penis with a pair of scissors but could not “get the courage to…cut [herself],” and had not attempted self-mutilation since because she did not want to affect her chances of successful GAS. Id. 12:2-20. She thought about hurting herself a lot and “prayed every day of [her] life for God to let [her] wake up and be a girl.” Id. 12:23-13:2. She has experienced “constant[]” depression throughout her entire life except for a “ brief respite in 2015 when [she] actually thought that things were going to go right.” Id. 13:3-5, 13:25-14:11. Until the age of 29, she “drank a lot” to try and alleviate the depression. Id. 14:13-22. After Petitioner’s initial consultation with the Eskenazi Health Center, she began treatment to start her gender transition, and she has presented and identified as a woman since July 27, 2015. Id. 60:17-23; ECF No. 2 (Pet.) at 9. Petitioner saw members of her medical team on a near weekly basis for mental health counseling, speech pathology, endocrinology, and other matters relevant to treating her gender dysphoria. June 29, 2022 Tr. 61:3-20. In August of 2015, she started hormone therapy to increase her estrogen and lower her testosterone. Id. 61:23-63:18. Petitioner’s goal was GAS: she consulted with a surgeon and decided that she wanted to proceed when her course of treatment would permit. Id. 64:3-17; Declaration of Dr. Janine Fogel (Fogel Decl.) (submitted by Petitioner in advance of evidentiary hearing) 3 (explaining that Petitioner’s treatment plan to transition from her assigned gender at birth (male) to match her gender identity (female) included the administration of gender affirming hormone therapy and contemplated GAS, including an orchiectomy).10 Before Petitioner’s federal conviction, she was treated at Eskenazi Health for about 18 months. June 29, 2022 Tr. 65:9-14. During that time, she expressed herself outwardly as a woman by buying herself new clothes, getting hair extensions, wearing jewelry and makeup, and having her nails done. Id. 65:17-66:6. Petitioner also requested that people refer to her using “she” and “her” pronouns. Id. 71:14-25. In April 2016, Petitioner appeared before a court in Indiana and presented documents indicating that she had undergone “appropriate clinical treatment to [permanently] change her gender.” Pet. at 9; Pet. Ex. A (letter from Dr. Janine Fogel, Petitioner’s treating physician for gender dysphoria before she entered federal custody, stating that Petitioner “has had appropriate clinical treatment for gender transition”; Dr. Fogel’s statement of gender change addressed to the Indiana Bureau of Motor Vehicles).11 The court ordered that Petitioner’s name be legally changed and her birth certificate corrected to reflect her gender as a female. Pet. at 9; Pet. Ex. B (May 15, 2017 birth certificate identifying Petitioner by her current name and listing her sex as “F”). Petitioner also presented Dr. Fogel’s statement to the United States Social Security Administration, which subsequently confirmed that Petitioner’s gender is female. Pet. at 9; Pet. Ex. C (May 5, 2018 Social Security Administration letter). Petitioner’s treatment at Eskenazi Health and gender expression alleviated her gender dysphoria: “It’s like the bathroom door got unlocked and I could actually come out and be who I want to be, you know, I was happy, the depression wasn’t so bad, the anxiety was not here, I was finally about to be a girl…. Your prayers, you know, your prayers have been heard, you’ve been a girl all along.” June 29, 2022 Tr. 71:5-12. VI. BOP Custody and TEC Determinations A. Federal Crime and Sentencing Recommendation On September 13, 2017, Petitioner pleaded guilty in the United States District Court for the Southern District of Indiana to distribution of visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. §2252(a)(2). See United States v. Shelby, No. 17-cr-00067 (JMS)(MJD) (S.D. Ind. 2017); see also ECF No. 13 (Johnson Decl.), ECF Nos. 13-1 (Plea Agreement), 13-2 (Criminal Judgment). She was sentenced to a mandatory minimum term of incarceration of 180 months, followed by a ten-year term of supervised release (to include participation in sex offender treatment). See Criminal Judgment at 2-3. Petitioner is expected to complete her term of imprisonment on December 3, 2029. Johnson Decl. 11. The sentencing judge was aware of Petitioner’s ongoing treatment for gender dysphoria and recommended that Petitioner be placed in a “medical facility with females at either FMC Lexington in Kentucky, or FMC Carswell in Fort Worth, Texas, and continue treatment for gender dysphoria.” Criminal Judgment at 2; June 28, 2022 Tr. 75:11-76:5. She has never been housed in a women’s facility. B. Initial Designation and Processing Petitioner was first transported to the Federal Transfer Center in Oklahoma City (FTC Oklahoma City). There, she notified BOP that she was a woman and requested to be treated accordingly. Pet. at 10. She was initially placed in a single occupancy holding cell and later moved to a unit with men, where she was dressed in men’s undergarments. Id. Petitioner repeatedly contacted staff and psychologists requesting to be moved out of the men’s unit and facility. Id. Petitioner was then sent to the Federal Correctional Institution in Marianna, Florida (FCI Marianna), a men’s facility. Id. She immediately declared her gender status to staff and reports that she was subject to their harassment and ridicule. Id. A staff psychologist reportedly told her: “This is all new here to us, you’ll have to be patient with us. This is the ‘Old South.’ This is the Bible Belt and we do things differently down this way.” Id. at 11. The psychologist allegedly told Petitioner that if she did not have any disciplinary issues, the psychology department would request her redesignation to a women’s facility after one year. Id. The psychologist also asked Petitioner if she wanted to participate in SOMP at FCI Marianna. June 29, 2022 Tr. 91:24-92:10. After learning how the program worked, Petitioner explained that she had recently completed similar sex offender treatment while in state custody. Id. The psychologist told Petitioner that treatment was not mandatory, so Petitioner decided not to participate in SOMP at that time. Id. 92:11-16. During the evidentiary hearing, Dr. Bowe (Petitioner’s mental healthcare provider at FCI Otisville) also explained that Petitioner was reluctant to participate in SOMP in a men’s prison specifically because of her experience living in a sex offenders’ unit at FCI Marianna, where she heard a lot of male sex offenders talking about their conduct in a way that affected her. June 28, 2022 Tr. 45:10-20. Having participated in SOMM while in state custody, Petitioner “had worked a lot on herself to…not think like that anymore and [had] made progress so she was always reluctant to consent to going to one of those programs because she didn’t want that exposure” to people who did not take the programming seriously. Id. 45:19-24, 46:4-8. During the eight weeks Petitioner spent at FCI Marianna, she was housed with two men, one of whom attempted to sexually assault her and threatened her with physical harm if she reported him. Pet. at 11; June 29, 2022 Tr. 88:19-89:6. Petitioner eventually notified a counselor and a psychologist about the incident and asked to be moved, then filed a PREA report and was placed in the Special Housing Unit (the “SHU”). Pet. at 11; June 29, 2022 Tr. 89:14. Petitioner claims that the PREA investigator “covere[ed] up the complaint” and issued a report indicating that Petitioner’s allegations were unfounded. Pet. at 11; June 29, 2022 Tr. 89:15-90:8. Petitioner was designated for permanent assignment at FCI Otisville. Pet. at 11. While in transit, she spent five weeks at the Metropolitan Detention Center in Brooklyn, New York (MDC), where she was again housed with men. Id. One man assigned to Petitioner’s cell pressured her for sexual favors and groped her breasts. Id.; June 29, 2022 Tr. 93:24-94:9. Petitioner reported the incident to the unit officer and requested protective custody. She completed a PREA report, was interviewed by a psychologist, and was placed in the SHU under protective custody where she remained until she was transported to FCI Otisville. Pet. at 12; June 29, 2022 Tr. 94:12-95:2. According to Petitioner, the incident at MDC was not investigated. Pet. at 12. C. FCI Otisville After arriving at FCI Otisville, Petitioner notified medical and administrative staff of her desire to be designated to a women’s facility so that she could continue treatment for her gender dysphoria. Pet. at 12. Staff informed Petitioner that they could not alter her designation. Id. Petitioner filed an administrative appeal and, on August 2, 2018, the BOP Administrator for National Inmate Appeals replied that the TEC had advised that Petitioner was appropriately designated to a facility commensurate with her security, custody, and medical needs. See id. at 27 (Administrative Remedy Response). Accordingly, Petitioner’s appeal of her designation was denied. Id. 1. Harassment and Assault When she arrived at FCI Otisville in March 2018, ECF No. 35 (Pedone Decl.) 3, Petitioner was placed across the hall from the officer’s station under “close observation” and remained there throughout her time at the facility. Pet. at 12. Within two days of her arrival at FCI Otisville, Petitioner was stopped by a male correction officer (“CO”) while she was exiting the dining facility. Id. The CO subjected Petitioner to a pat search and squeezed her breasts during the search. Id.; June 29, 2022 Tr. 95:15-96:8. Petitioner reported the incident and was given a card that states that she should be patted down or visually searched only by female staff. Petitioner claims that the male CO continued to harass her until she filed a complaint with the Department of Justice, at which point the Assistant Warden intervened and the harassment stopped. Pet. at 12. Multiple other COs at FCI Otisville verbally harassed Petitioner about having a penis and acting like a man, June 29, 2022 Tr. 97:5-15, and she experienced “daily” sexual harassment by other prisoners, id. 97:19-99:5 (describing how other prisoners called her by her deadname — the name she had used before transitioning — after an CO told them what it was, exposed their genitals to her, and groped her). Then, in April of 2021, Petitioner was raped by another prisoner. Id. 99:6-20. She did not report the assault at the time because she was afraid of him and concerned about repercussions but reported it in early 2022 because a housing assignment would have put her in the same unit as her assailant. Id. 99:21-101:24. Her report was unsubstantiated.12 Resp’t Ex. F (PREA Records) at 8. 2. Medical Care for Gender Dysphoria Throughout her time in BOP custody and, more specifically, while at FCI Otisville, Petitioner advocated for and received certain medical care for her gender dysphoria. BOP medical records reflect that she has received hormone therapy to reduce balding, lower her testosterone levels, and increase her estrogen levels; as a result, Petitioner’s hormone levels have largely remained consistently within the guidelines for a transgender woman. See, e.g., ECF No. 37-1 (2018 Medical Records Part 1) at 3, 4, 8, 21, 36, 152-53, 158-59; ECF No. 37-3 (2019 Medical Records) at 40, 120, 128; ECF No. 37-4 (2020 Medical Records Part 1) at 301; June 28, 2022 Tr. 135:13-15. Petitioner also regularly sees a BOP therapist for her gender dysphoria and post-traumatic stress disorder and takes medication for her anxiety disorder. See, e.g., 2018 Medical Records Part 1 at 13, 93, 113-14. While at FCI Otisville, she regularly met with Dr. Jennifer Bowe, who has worked at FCI Otisville since 2005 and for the BOP since at least 2002. June 28, 2022 Tr. 10:8-14, 12:10-17, 16:12-22. As part of a full diagnostic examination to determine the level of mental healthcare that Petitioner required, in June 2018, Dr. Bowe diagnosed Petitioner with gender dysphoria, post-traumatic stress disorder, and pedophilic disorder (which Dr. Bowe marked as in remission in 2019). Id. 16:4-11, 16:24-17:9, 18:23-19:9, 25:17-22; 2019 Medical Records at 5-6. Petitioner met with Dr. Bowe one to two times a month over the course of four years. Id. 21:22-25. Petitioner was never denied mental health counseling while at FCI Otisville, and the counseling assisted in managing her depression. June 29, 2022 Tr. 110:10-15. For seven years, Petitioner has wanted to live as a woman and receive GAS. She told this to her doctors before she was incarcerated, see, e.g., 2018 Medical Records Part 1 at 267, 272; ECF No. 37-2 (2018 Medical Records Part 2) at 21, and she has repeatedly raised the issue with her physical and mental healthcare providers while in BOP custody, see, e.g., 2018 Medical Records Part 1 at 181-82 (September 2018 message from Petitioner to Health Services asking to “move the process along with [her] transition” because the “prolonged waiting is causing [her] unnecessary anxiety and increased depression with [her] dysphoria”); id. at 7 (November 2018 chronic care clinic note that Petitioner “is anxious about a decision on whether she will be able to be transferred to a female facility and ultimately to expedite her gender affirming surgery” and that she is “obsessed with her hair and nails and is asking again about [medication] for her developing male pattern baldness”); id. at 166 (December 2018 message from Petitioner to Health Services asking “to be seen soonest about surgery options” because she is “unwilling to continue to wait patiently for [her] vagina to miraculously appear”); 2019 Medical Records at 65-66 (January 2019 chronic care clinic note stating that Petitioner wants breast augmentation and an orchiectomy “so that [she does] not have to continue these dangerous medications,” describing her disappointment at being denied transfer to a women’s facility to start the process toward GAS, and noting that Petitioner said she “is trying to do things the right way”); id. at 40 (May 2019 chronic care clinic note that Petitioner is “not going to stop asking about [her] breast augmentation and vaginaplasty [sic], that’s [her] goal”); id. at 11 (November 2019 chronic care clinic note that Petitioner is “still feeling too ‘manly’”); 2020 Medical Records Part 1 at 25 (November 2020 chronic care clinic note that Petitioner “is now expressing a desire again to address her orchiectomy”). 3. Effects of Gender Dysphoria and BOP Refusals to Transfer Petitioner’s gender dysphoria and the BOP’s refusal to transfer her to a women’s facility (and associated delay in her ability to pursue GAS) have caused her mental distress throughout her incarceration. See Resp’t Ex. C (BOP Psychology Services Records) at 190-225 (records of Petitioner’s psychological treatment while at FTC Oklahoma, FCI Marianna, and MDC). In 2018, a month after arriving at FCI Otisville, Petitioner expressed frustration with being “biologically male” and explained that before her incarceration, she had been preparing to undergo GAS, and that she “[couldn't] wait” to have her penis removed. Id. at 180. That June, Petitioner told her psychologist that she “is not happy having a male anatomy,” that other prisoners were reminding her that she had a penis, and that she was sad and frustrated because the transition process was taking so long. Id. at 162. In October, while awaiting a decision on her request to transfer to a women’s facility, Petitioner felt she was “ready to go” so that she could “reach the final stages of her transitioning.” Id. at 298. Then, in December, after Petitioner’s transfer request was denied, she expressed that she “hated” her body and “was disgusted” having to look at it and threatened to perform an orchiectomy on herself. Id. at 295. In 2019, Petitioner reported during a February psychological visit that she was “devastated” by a recent denial of her request for an orchiectomy, that she was “tired” of feeling trapped in a man’s body, and that she was considering doing the procedure herself. Id. at 291-92. In April, Petitioner described wanting to cut off her testicles “many times throughout her life as she always wanted to be female.” Id. at 284. In May, Petitioner expressed “disgust for her male anatomy, and frustration over feeling like her requests are being ignored.” Id. at 157. An August suicide watch contact note and risk assessment stated that Petitioner was “tired of being told she has male genitalia and that she is in a male prison and will be treated as a male,” that she stated “I’ll cut it off and hand it to them,” that she thought about suicide “all the time” and was “tired of living in this body,” that she did not feel “safe from herself,” and that she was angry and upset about the pace of her gender transition. Id. at 136-37. Also in August, Petitioner reported that she is “told every day by someone that she is a man by either inmates or staff and it is hard for her.” Id. at 150. In September, Petitioner was reported as having “been very vocal with staff members regarding her desire to change and has expressed frustration and depression related to the BOP’s refusal to move her to a female facility and to grant the surgery she believes would be helpful to her” and that she “sometimes experiences feelings of depression related to having to live in a male prison due to her physique.” Id. at 121. In October, Petitioner told her case manager that “if she did not receive her surgery in sixty days, she was going to cut off her testicles herself” (though she ultimately denied plans to do so), and that she was frustrated about her hormone levels. Id. at 119. Then, in 2020, Petitioner, said during a March therapy session, “I’m not hurting anyone, I used to be bad but I don’t hurt people anymore, I just want to be a girl.” Id. at 98. In April, Petitioner was “happy that she was permitted a razor to shave with so she did not have to look at her facial hair.” Id. at 95. That June, Petitioner expressed that she “wishes her desire for surgery was taken more seriously as she believes taking hormones to suppress her testosterone [is] negatively affecting her” and that “she would not have to take them if her testicles were removed.” Id. at 91. In 2021, Petitioner told her psychologist in January that she “feels uncomfortable in a male prison, and she does not want anyone else to feel that way.” Id. at 72. In May, she was tearful when explaining that “the consistent questioning of her bra and prosthetic [breasts] only reminds her of how inadequate her body is,” and that she felt that “since no one is going to help her get transition surgeries that they should not remind her that she does not have the ‘right parts.’” Id. at 65. Also in May, she told her psychologist that she “wants to feel like a woman and not be reminded of every missing body part.” Id. at 64. In August, Petitioner said that she “believes that she would be safer in a female institution.” Id. at 54. In 2022, Petitioner reported in January that she was “having periods of depression and feeling despondent over her perception of her treatment as a transgender” woman. Id. at 34. In March, after the TEC rejected her transfer request, she said that the rejection was “hard for her, as she claimed, ‘I just want to be a girl! I can’t be a girl here,’” and that she felt “as though she is being denied the right to be herself.” Id. at 27. Also in March, a post-suicide watch report stated that Petitioner was frustrated “over not being able to further in her gender transitioning at this time and not feeling as if she can be a girl while in a male facility.” Id. at 16. In May, a mental health transfer summary explained that Petitioner “presents as transgender with dysphoria related to her having male anatomy and being limited in her ability to express her femininity,” that she has “experienced suicidal ideation in relation to her gender dysphoria and feeling stuck in one stage of the process of her transition,” that she “has been very vocal with staff members regarding her desire to change and has expressed frustration and depression related to the BOP’s refusal to move her to a female facility and grant the surgery,” that “[m]any sessions have focused on her learning to cope with this frustration,” and that she “sometimes experiences feelings of depression related to having to live in a male prison due to her physique.” Id. at 7-8. Dr. Bowe confirms this: over the four years that she met with Petitioner, Dr. Bowe determined that she suffered from depression “largely related to her gender dysphoria, her transgender status, and just being, having to live in the male prison and just not be able to express herself the way she wanted to.” June 28, 2022 Tr. 22:13-22. Petitioner expressed a desire to be transferred to a women’s prison “many times,” id. 29:14-20, and it was Dr. Bowe’s opinion that living in a men’s prison “inhibited her ability to express herself the way she felt comfortable and the way she felt about herself,” id. 29:21-30:4. According to Dr. Bowe, living in an all-men’s environment was a “contributing factor” to Petitioner’s depression, and continuing to live in a men’s prison would contribute to her gender dysphoria. Id. 30:5-31:2. Dr. Bowe believed that Petitioner’s mental health could improve if she was transferred to a women’s prison and that her depression could be alleviated (though Dr. Bowe acknowledged that the antidepressants prescribed to Petitioner were helpful in treating her symptoms of depression). Id. 31:3-7, 31:15-17, 52:8-12. In Dr. Bowe’s words, Petitioner had “been living as a woman for many years now consistently,” was “taking hormone treatments,” and was “consistent in wanting [her gender transition] process to go forward.” Id. 39:18-40:3. Petitioner felt “stagnant and stuck in a…male prison where she didn’t want to be” and “not as able to express herself as a woman while living” there; she wanted “to be in a female prison” “to move forward with the gender affirming surgeries.” Id. 42:23-43:2, 44:16-17. Dr. Fogel, the founder and medical director of the Gender Health Program at Eskenazi Health, treated Petitioner at Eskenazi Health for gender dysphoria before she entered federal custody. Dr. Fogel expressed “concern” at Petitioner’s placement in a men’s prison for several reasons. Fogel Decl. 6. First, transgender people are at increased risk of violence compared to cisgender people and putting a transgender woman like Petitioner in a men’s prison places her at a “greater risk of attack” than if she were in a women’s prison. Id. Second, “forcing her to reside amongst a population of persons whose gender identity is male, while her gender identity is female,” could be “detrimental” to Petitioner’s mental health because “she will likely constantly feel as though she is always out of place and not accepted for who[] she is” and “living in an all male environment will likely inhibit her from fully presenting herself as the [woman] she sees herself to be.” Id. Living in a men’s prison could cause Petitioner “to be in a state of constant and severe depression,” and if the circumstances do not change over time, the depression could cause Petitioner to experience “despair and hopelessness,” potentially leading to her contemplating “self mutilation or suicide.” Id. In Dr. Fogel’s opinion, transferring Petitioner to a women’s prison would help alleviate depression that Petitioner may suffer because she would live among other people who share her gender identity and would not feel like an outcast. Id. 7. Additionally, in a women’s prison, Petitioner would have access to a wider variety of women’s apparel, cosmetics, and accessories that would be beneficial to her mental health and gender expression. Id. “From a mental health perspective, unless it was [Petitioner's] choice, [Dr. Fogel] [did] not foresee there being any reason why it would be more beneficial for [Petitioner] to be confined to a men’s prison instead of a women’s prison.” Id. 8. 4. Other Accommodations In addition to mental healthcare and hormone therapy, the BOP claims that Petitioner has been granted other accommodations to assist her gender expression. For instance, Petitioner dyed her hair pink and painted her nails. ECF No. 34 (Opp.) at 9; 2019 Medical Records at 8. Petitioner explains that FCI Otisville policy did not permit her to dye her hair but that she did so anyway using acrylic paint mixed with conditioner; some staff members looked the other way, while others would tell her to wash the dye out. June 29, 2022 Tr. 81:16-82:15. She painted her nails using acrylic paint and floor wax, not using nail polish. Id. 82:25-83:9. Additionally, the BOP notes that Petitioner is “permitted to wear” hair scrunchies and stockings, but Petitioner says that she made the scrunchies herself, and that the stockings were compression stockings intended for medical use. Id. 80:22-81:3, 111:16-19; 2018 Medical Records Part 1 at 177. Petitioner was also approved for prosthetic breasts, and before the COVID-19 pandemic, transgender prisoners at FCI Otisville had peer group meetings, though Petitioner testified that only three meetings took place. Pet. Ex. H at 2; Resp’t Ex. G (Petrucci Decl.) 5; Pedone Decl. 11; June 29, 2022 Tr. 111:23-25. D. Pre-2022 TEC Meetings About JJS Petitioner has asked to be transferred to a women’s facility multiple times throughout her incarceration at FCI Otisville, June 29, 2022 Tr. 85:7-9, and the TEC has met and discussed Petitioner’s case six times since October 2017.13 First, on November 5, 2018, then-Warden Petrucci submitted a memorandum on Petitioner’s behalf to the TEC, asking that the TEC “consider [Petitioner's] request for a transfer to a female institution where she can move on to the next phases of her transitioning.” Pet. Ex. G at 1. Warden Petrucci explained that she had already been in the process of transitioning before she entered BOP custody, and that Petitioner’s doctors had been considering her for GAS before her arrest. Id. at 1. Petitioner was compliant with her medication regimen, attended individual mental health therapy sessions, and “appear[ed] to have developed good insight and self-awareness.” Id. In his written testimony, Warden Petrucci recalled transmitting “at least one petition” from Petitioner to receive GAS to the BOP’s central office but did not recall taking any action in his official capacity regarding Petitioner’s request to be transferred to a women’s facility, “except insofar as it might have come up as a necessary pre-condition for GAS.” Petrucci Decl.
