Judge Sarah Netburn, nominated by President Biden to the U.S. District Court for the Southern District of New York, faces a rocky path to confirmation after Republicans exposed her decision to move a sex offender who is a transgender woman to a women’s prison.
Judge Netburn, who has served as a magistrate judge for 12 years, disregarded the recommendation of the Bureau of Prisons and ordered prison officials to move July Justine Shelby, who was imprisoned under the name William McClain, to a women’s prison.
Republicans tore into her decision at a heated hearing this month, labeling Judge Netburn a political activist who twisted the Constitution to justify moving the prisoner and put vulnerable women in danger.
Sen. John Kennedy, Louisiana Republican, scoffed at Judge Netburn’s reasoning for moving the prisoner, who she said had “serious medical needs” that were not being met at the men’s facility.
“The Board of Prisons said, ’What planet did you parachute in from? You’re going to a male prison with this kind of record,’’’ Mr. Kennedy said in response. “And you sent him to a female prison, did you? You said that the Board of Prisons was trying to violate Ms. Shelby, former Mr. McClain’s, constitutional right, didn’t you?”
Judge Netburn’s nomination now hinges on a Senate committee vote that hasn’t been scheduled and, if she clears that hurdle, a Senate floor vote.
If Judge Netburn loses the support of the entire GOP, she’ll need at least 50 Democrats to vote for her, including vulnerable swing-state Democrats up for reelection.
Judge Netburn’s nomination now puts those battleground-state Democrats such as Sens. Sherrod Brown of Ohio and Jon Tester of Montana on the spot.
“That’s something that the voters need to make clear, that that this is something that they’re going to hold them accountable for, that we’re not going to allow judges to be activists and stuff men into women’s prisons under the guise of the Constitution,” May Mailman, director of Independent Women’s Law Center, told The Washington Times.
“She says that the Constitution requires men to be housed with women, which is just absurd,” Ms. Mailman said.
The Federal Bureau of Prisons currently has in custody more than 1,400 prisoners who are transgender women, many of them convicted sex offenders deemed a “high-security” risk.
In 2023, Bureau Director Colette S. Peters testified that “fewer than 10” transgender women prisoners are incarcerated with women.
Under a Biden administration policy implemented in 2022, transgender women can be moved to a women’s facility on a case-by-case basis, based on “whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”
The policy directs that a transgender individual’s “own views with respect to his/her own safety must be given serious consideration.”
The prisoner claimed to be endangered in New York’s Otisville Correctional Institution, a federal medium-security men’s prison.
The Bureau of Prisons repeatedly denied the prisoner’s request to be transferred to a women’s prison, citing risks it would traumatize prisoners and possibly threaten their safety.
The prisoner served 24 years in prison for raping a 17-year-old girl and molesting a 9-year-old boy. The prisoner landed in prison again after being convicted in 2017 of distributing images of child sexual abuse involving an infant and a young girl.
Judge Netburn called the Bureau of Prison’s concerns “overblown” and based on fear, not evidence.
The prisoner hadn’t assaulted anyone in years and had participated in a sex offender treatment program, Judge Netburn wrote in her ruling, and as a transgender inmate living as a woman, was at risk in the men’s prison.
“The hypothetical concern that Petitioner will hurt someone must be counter-balanced by the actual evidence that she has been assaulted and harassed in a men’s facility,” Judge Netburn wrote.
The prisoner was transferred to the Federal Medical Center, Carswell, a female federal correctional facility in Fort Worth, Texas.
At her confirmation hearing, Republicans questioned how Judge Netburn weighed the safety and rights of inmates against her concerns for the prisoner.
“So you took a six-foot-two serial rapist. Serial child rapist with male genitalia,” said Sen. Ted Cruz of Texas. “And he said, you know, I’d like to be in a women’s prison. And your answer was, ‘That sounds great to me.’ Let me ask you something. The other women in that prison, do they have any rights?”
Judge Netburn said, “I considered the facts presented to me, and I reached a decision.”
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