FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
S.D., individually and on behalf of all others No. 26-4872
similarly situated; J.F., D.C. No.
6:25-cv-01726-CL
Plaintiffs - Appellees,
v. OPINION
MIKE REESE; RYAN LEGORE; MARK
NOOTH; ERIN REYES; STATE OF
OREGON, by and through the Oregon
Department of Corrections; JEREMY
WAGNER,
Defendants - Appellants,
JOHN DOES, 1-5,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted August 27, 2026
Pasadena, California
Before: Daniel P. Collins, Lawrence VanDyke, and Eric C. Tung, Circuit Judges.
Opinion by Judge Tung
TUNG, Circuit Judge:
The district court in this case issued a class-wide preliminary injunction
requiring (among other things) that the State of Oregon presumptively assign more
than a hundred “transgender women” prison inmates (male inmates who claim to
be female) for placement in the only state-run women’s prison in Oregon. The
State of Oregon and Department of Corrections officials (Defendants) appealed.
Defendants contend that the district court based its injunction on a clearly
erroneous finding that Defendants applied a “default presumption” that
“transgender” inmates be assigned to men’s prisons. That “presumption,” in the
district court’s view, exposed those inmates to a substantial risk of harm in
violation of the Eighth Amendment. We agree with Defendants that the district
court committed clear error. The record does not support the district court’s
finding that Defendants applied a “presumption.” Nor does the record justify
class-wide relief. We vacate the preliminary injunction and direct that the class be
decertified.
I.
Plaintiffs J.F. and S.D. brought a class action against Defendants. Plaintiffs
allege violations of the Eighth Amendment (and other causes of action not relevant
here) for Defendants’ purported failure to guard against Plaintiffs’ alleged
exposure to a substantial risk of harm in men’s prisons. Plaintiffs, claiming to be
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“transgender women” inmates, sought a preliminary mandatory injunction on
behalf of a class of “all current and future transgender women in [Oregon
Department of Corrections (‘ODOC’)] facilities.” 3-ER-316. Plaintiffs asked,
among other things, to be presumptively assigned to the women’s prison. 3-ER377.
The district court (Clarke, Magistrate Judge) granted the motion and
provisionally certified a class. 1-ER-16. The district court acknowledged that
issuance of a mandatory injunction must clear a high bar—that “the law and the
facts clearly favor Plaintiffs’ position.” S.D. v. Rees, No. 6:25-CV-01726-CL,
2026 WL 1146591, at *8 (D. Or. Apr. 28, 2026) (emphasis added). In the district
court’s view, that burden was met with respect to Plaintiffs’ Eighth Amendment
claims. Id. at *8–11, 13. Defendants filed a motion for reconsideration. 2-ER110–139. The district court denied reconsideration in part and granted it in part,
issuing an amended preliminary injunction that largely tracks Plaintiffs’ requests
with a few exceptions not relevant here. See S.D. v. Rees by & through the Oregon
Dep’t of Corr., No. 6:25-CV-01726-CL, 2026 WL 1960717, at *6 (D. Or. July 7,
2026). The revised mandatory injunction requires that Defendants:
1. Immediately end the categorical housing of transgender women in men’s
facilities without individualized safety assessments and instead conduct
prompt, case-by-case housing and classification reviews for all
transgender women in ODOC custody. The starting point for each
assessment shall begin with a presumption of placement consistent with
each person’s gender identity, absent a documented and articulable
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security justification. Then, the assessment shall take into consideration
the AIC’s [adult-in-custody’s] preferences, their privacy, access to medical
support, programming, support-network, safety, or other individualized
reasons for placement in any particular facility.
2. Provide safe, non-punitive housing options for transgender women,
including (as appropriate) transfer to CCCF [Coffee Creek Correctional
Facility] [the women’s facility], voluntary transgender or gender nonconforming housing units within existing facilities, or other protective
placements that do not involve involuntary segregation or loss of
programming solely because of transgender status.
3. Prohibit housing transgender women with cisgender cellmates known to
have a history of sexual or serious physical violence.
4. Ensure that transgender women have access to separate showers or shower
schedules that provide reasonable bodily privacy from male prisoners and
staff and implement policies to prevent forced exposure of nude bodies to
male inmates.
5. Require that unclothed searches of transgender women be conducted by
female staff absent extraordinary, documented circumstances and prohibit
cross-gender strip searches otherwise.
6. Implement immediate, confidential, and non-retaliatory reporting
mechanisms for sexual abuse, harassment, and threats, including effective
[Prison Rape Elimination Act] PREA-compliant hotline access and
prompt, good-faith investigations of all such reports with measures to
protect reporters from retaliation.
7. Provide interim mental health support, include crisis counseling, for
transgender women who report sexual abuse or exhibit suicidality related
to unsafe housing or retaliation.
8. An AIC may decline any of these protections with informed, voluntary
consent after a meaningful review of options.
1-ER-3–4.
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Defendants appealed and sought emergency relief. We granted Defendants’
request for a stay of the preliminary injunction, and of all district court
proceedings, pending appeal. Stay Order at 1 (No. 26-4872), Aug. 20, 2026. We
now address the merits of the preliminary injunction.
II.
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain
that remedy, a plaintiff must satisfy four factors: (1) “that he is likely to succeed on
the merits”; (2) “that he is likely to suffer irreparable harm in the absence of
preliminary relief”; (3) “that the balance of equities tips in his favor”; and (4) “that
an injunction is in the public interest.” Id. at 20. “We review an order regarding
preliminary injunctive relief for abuse of discretion, but review any underlying
issues of law de novo.” Norbert v. City & Cnty. of San Francisco, 10 F.4th 918,
927 (9th Cir. 2021) (citation omitted). An abuse of discretion occurs when the
district court’s “decision relies on an erroneous legal standard or clearly erroneous
finding of fact.” Arc of Cal. v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014)
(internal quotation marks omitted). And a finding is clearly erroneous if it is
“illogical, implausible, or without support in inferences that may be drawn from
the facts in the record.” Id. (citation omitted).
5 26-4872
Plaintiffs fail to show that they are likely to succeed on the merits. The
remaining Winter factors weigh against them too. Accordingly, the district court’s
preliminary injunction, resting on a contrary conclusion, must be vacated.
A.
Whether Plaintiffs are “likely to succeed on the merits” is “the most
important factor.” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (internal
quotation marks omitted). Plaintiffs’ burden “is doubly demanding” in defending a
mandatory injunction: They “must establish that the law and facts clearly favor
[their] position, not simply that [they are] likely to succeed.” Garcia v. Google,
Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc); see also Stanley v. Univ. of S.
Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (“A mandatory injunction goes well
beyond simply maintaining the status quo pendente lite [and] is particularly
disfavored.” (citation omitted)).
Plaintiffs cannot show that the law and facts clearly favor their position.
First, the injunction was based on a flawed premise that Defendants employed a
“default presumption” of placing Plaintiffs (and class members) in men’s prisons.
Second, even assuming such a default presumption existed, the record does not
support the district court’s conclusion that the presumption produced a substantial
risk of harm that Defendants were deliberately indifferent toward. Finally, the
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injunction ordered class-wide relief that was based on an improperly certified
class.
1.
The district court based its injunction on the following premise: Defendants
did not conduct “individualized assessments” but rather applied a “default
presumption” that placed Plaintiffs and class members in men’s prisons. S.D.,
2026 WL 1146591, at *1 (“It is undisputed in the record before the Court that this
default presumption, and their overwhelming placement in men’s prisons, has
exposed transgender women inmates to a high risk of violence and sexual
assault.”); id. at *10 (“[A] major cause of both the known higher risk of violence
and the violence itself, was due to the default housing placement of transgender
women in men’s prison facilities.”). That premise lacks record support and is
clearly erroneous. The district court improperly disregarded the overwhelming
contrary evidence presented by Defendants in favor of baseless speculation.
In contending below that Plaintiffs failed to carry their burden to substantiate
their claim that Defendants applied a default presumption that assigned class
members to men’s prisons, Defendants submitted declarations and policy
documents explaining the individualized process that ODOC uses to place
“transgender” inmates. Newly admitted inmates are “assessed within 72 hours of
arrival . . . and again within 30 days to determine whether they meet specific
7 26-4872
criteria indicating either vulnerability or likelihood of perpetrating sexual abuse.”
OB, Add–6. Newly admitted inmates who claim “transgender, nonbinary,
genderfluid, or intersex” status are “placed in the infirmary until” a committee “can
gather all necessary information to decide placement,” which takes about a week.
2-ER-240. Inmates already in custody but who later “come forward to identify as
transgender, nonbinary, genderfluid, or intersex remain in their current facility
until [the committee] reviews and makes a placement determination.” 2-ER-240.
“When determining appropriate and safe housing, committee members will
consider: the AIC’s [adult-in-custody’s] medical history; the AIC’s mental health
status; how the AIC self-identifies; the safety of the AIC, other AICs, and staff;
observation of the AIC’s behaviors; and any other relevant information. Each
housing placement is individualized and determined on a case-by-case basis.” 2-ER-239.
In a further effort to refute Plaintiffs’ claim of a “default presumption,”
Defendants submitted records summarizing their placement decisions, which are not
disputed. Defendants stated that “[t]here are currently 117 transgender women
AICs” (male inmates claiming to be women) “housed in ODOC prisons, 26 of the
117 have requested to be housed at the [women’s prison], and 8 are currently
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housed” there. 2-ER-240.1 “Not all transgender female AICs want to be housed at
[the women’s prison],” Defendants represented. 2-ER-240. “Some transgender
female AICs specifically request placement at men’s facilities, for a variety of
reasons, and may be granted such placement when it is appropriate.” 2-ER-240.
“Based upon our current tracking information,” Defendants said, “approximately 22
transgender women total have been housed at” the women’s prison. 2-ER-240.
In addition, Defendants presented evidence concerning individual
placements, which they contended further confirmed that ODOC did not apply any
default presumption. In particular, Defendants described the placement decision
made with respect to the only named Plaintiff (J.F.) who remains in custody.2
Plaintiff J.F. entered the Department’s custody in 2008 and identified “as
transgender” in 2015. 2-ER-240. J.F. requested transfer to a women’s prison in
2021 but was “not eligible to transfer . . . due to safety concerns of the [female
inmates]” at the women’s prison. 2-ER-240. J.F. was
incarcerated for a sex offense against a disabled female victim who was
in the care of . . . J.F.’s mother; the victim had physical limitations and
was unable to communicate. The victim had to have surgery to remove
an 11-inch plastic object that was lodged in her abdomen by J.F., who
1
Defendants later submitted a supplemental declaration that identified 123 “transfemale” inmates. 2-ER-147.
2
The other named Plaintiff (S.D.) is no longer in custody. See S.D., 2026 WL 1146591, at *4 n.1.
9 26-4872
lodged it into her abdomen via the victim’s vagina. The victim’s
injuries were potentially fatal.
2-ER-240–241.
Decisions concerning other inmates also clearly reflect individualized
review. Defendants pointed to their handling of a transfer request made by L.B.,
who had “sexually abused a young niece and physically assaulted a girlfriend by
grabbing her throat and pushing her up against a wall.” 2-ER-255. As Defendants
explained, “L.B.’s request was denied due to [L.B.’s] assaultive history toward
women.” 2-ER-255. In another example, Defendants acceded to inmate Doe’s
request to be transferred to the women’s prison. 2-ER-255. Months after the
transfer, however, Doe was returned to a men’s prison after displaying
“aggressive” behavior toward the women inmates, including calling them
“derogatory names (‘bitches’, ‘whores’),” and grabbing Doe’s own “[male]
genitals” when walking by women inmates; moreover, Doe “request[ed] to return
to a male facility.” 2-ER-256. Two and a half years later, Doe received a
“vulvoplasty” and is now back in the women’s prison. 2-ER-256.
Neither the district court nor Plaintiffs contested these facts, which
undermine Plaintiffs’ assertion that Defendants applied a default presumption. The
district court nevertheless inferred a “default presumption” from the mere fact that
“more than 90% of transgender women are housed in men’s facilities.” S.D., 2026
WL 1146591, at *1; see also id. at *10 (finding a default presumption of
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“placement in men’s facilities” based solely on the fact that “eight out of 117 total
transgender AICs are placed at CCCF, which is less than seven percent”). That
inference is groundless. The district court assumed that, if the process were truly
individualized, it would not have produced an outcome that was, in the court’s
view, this lopsided. But no evidence supports the district court’s speculation about
how many transgender inmates “should” have ended up in women’s prisons under
an individualized review. Indeed, the record refutes it. For example, uncontested
evidence showed that only 26 “transgender inmates” (out of 117) requested
transfer to the women’s prison, and 8 of them were transferred. The low rate of
transfer requests cannot be squared with the district court’s baseless assumption
that, under an individualized-assessment system, there would be a much higher rate
of actual placement into the women’s prison.
The district court admitted to giving “little weight” to the low number of
transfer requests, but its only reason for doing so was that it had “no information
about the other 91 [inmates], including whether they [we]re aware that requesting a
transfer is required, or that it is even an option, to be considered for housing at [the
women’s facility].” Id. at *10. The district court’s rationale is legally flawed
because it ignores the burden of proof. Plaintiffs bore the burden of proving the
default presumption, and any gaps in the evidence therefore counted against them
rather than (as the district court would have it) in their favor. Plaintiffs might have
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sought to show that the other 91 inmates who did not request transfer were not
aware of the option or did not know how to make such a request. Rather than hold
Plaintiffs to their burden, the district court essentially “substitute[d] [its]
assumptions for evidence in the record.” United States v. Barnes, 895 F.3d 1194,
1199 (9th Cir. 2018). That it cannot do.
Plaintiffs’ citation of cases suggesting the relevance of statistics is
misplaced. See Ans. Br. 27 (citing United States v. Ironworkers Local 86, 443
F.2d 544 (9th Cir. 1971); Diaz v. Am. Tel. & Tel. Co., 752 F.2d 1356 (9th Cir.
1985); Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005)). We do not dispute that
statistics can be useful. But even the authority Plaintiffs rely on says, “as is the
case with all statistics, their use is conditioned by the existence of proper
supportive facts and the absence of variables which would undermine the
reasonableness of the inference of [improper conduct] which is drawn.”
Ironworkers Local 86, 443 F.2d at 551 (emphasis added) (footnotes omitted).
Plaintiffs have not offered “proper supportive facts” or the “absence of variables”
suggesting a “presumption.” Id. Nor are Diaz and Obrey on point. Both Diaz and
Obrey addressed the relevance of statistical evidence: whether it was “properly
subject to discovery,” Diaz, 752 F.2d at 1358, and whether it was “probative” to be
admitted, Obrey, 400 F.3d at 697; again, it is not relevance we dispute, but whether
the inference drawn from statistics alone had any factual basis here. It did not.
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2.
Even assuming the existence of a default presumption, however, the district
court’s mandatory injunction would still be unjustified. The record here does not
support the conclusion that any presumption reflected Defendants’ deliberate
indifference to a substantial risk of harm to Plaintiffs and other class members—a
prerequisite to establishing an Eighth Amendment violation. See Farmer v.
Brennan, 511 U.S. 825, 828 (1994).
The district court concluded that there was a substantial risk of harm because
“[n]early 35% of transgender people in state and federal prisons were sexually
assaulted between 2007 and 2021, compared to less than 5% of the general prison
population who experienced the same.” S.D., 2026 WL 1146591, at *9 (emphasis
added). But the Department of Justice study, cited by the district court, was not
from 2007 through 2021. Rather, the study covered a much narrower timeframe—
2007, 2008–2009, and 2011–2012. See U.S. Dep’t of Just., Off. of Just. Programs,
Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12, NCJ No.
241399, Supp. Table 1 (2014). The district court’s error is significant: The
statistics used long predate the relevant period here—Plaintiff J.F. and other
inmates (who submitted declarations) had all requested transfer during or after
2021. That is roughly a decade-long gap. The district court’s use of stale statistics
does not justify finding a “substantial risk of harm.”
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The district court’s reliance on the DOJ study is flawed in another respect:
The DOJ statistics are cumulative nationwide numbers reflecting reports at both
federal and state prisons; the numbers do not necessarily reflect conditions in
Oregon prisons, which likely have a different model of prison administration from
many other prisons. For instance, the Oregon Department of Corrections has a
specific “Transgender and Intersex Committee” that “determine[s] appropriate and
safe housing for transgender and intersex adults-in-custody.” 2-ER-239. The
district court, to be sure, relied also on declarations of individuals who claim to be
exposed to a substantial risk of harm from sexual assault while in men’s prisons.
But even if we credited those declarations, individual instances of harm would
warrant, at most, individual redress of particular constitutional violations. They
would not justify the class relief mandated by the district court.
3.
The district court’s injunction is also based on an improperly certified class.
The certified class here included “all current and future transgender women in
ODOC custody.” S.D., 2026 WL 1146591, at *19. Plaintiffs “must ‘affirmatively
demonstrate’ by a preponderance of actual evidence that they satisfy all the Rule
23 prerequisites.” Dickinson v. Trump, 174 F.4th 634, 646 (9th Cir. 2026)
(citations omitted). But they failed to satisfy that requirement here. See Fed. R.
Civ. P. 23(a)(2) (requiring “questions of law or fact common to the class”).
14 26-4872
Plaintiffs have not shown by a preponderance of the evidence that the class
members’ alleged harms, their varying degrees of harm, and the source of their
harms are “common” to all class members. Nor have Plaintiffs shown that
Defendants acted in a uniform way with deliberate indifference toward each of the
class members. At most, the record reflects that different officials acted in
different ways toward different prisoners at different times. See 2-ER-240
(declining J.F.’s transfer request because of J.F.’s history of sexually assaulting a
disabled female victim); 2-ER-240–41 (granting Doe’s initial transfer request but
then returning Doe to a men’s prison after Doe became aggressive toward female
inmates, and then ultimately putting Doe back in women’s prison upon Doe’s
receiving a vulvoplasty); 2-ER-242 (denying S.S.’s transfer request because S.S.
did not make the request until two months before S.S’s release date). That does
not support a class. The district court’s own admission that it “has no information
about the other 91 AICs” confirms that a class would be inappropriate here. S.D.,
2026 WL 1146591, at *10.
The district court’s finding of commonality rested on its conclusion that
Defendants had a “systemic” policy that “preferences housing [proposed class
members], categorically, in men’s prisons, such that they are exposed to a
substantial risk of violence and sexual assault.” Id. at *17. But as discussed, the
record does not support the existence of such a policy. See supra II.A.1. Wal15 26-4872
Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), is on point. There, the Supreme
Court rejected certification of a class of female employees who purportedly
suffered gender discrimination at the hands of store managers. Id. at 344–46, 367.
The plaintiffs could not show by a preponderance that the company had a policy of
discrimination that would justify the class; what remained were individual
allegations of discrimination insufficient to satisfy commonality. Id. at 350–51,
353–55. The same defect pertains here—Plaintiffs have not shown a Departmentwide policy of deliberate indifference to justify a class; scattered claims of harm,
however severe, will not do. Because the class must be decertified, the class-wide
injunction necessarily falls as well.
B.
While Plaintiffs’ failure to establish a likelihood of success is enough to
warrant vacatur of the preliminary injunction, the remaining Winter factors
reinforce that conclusion. See Azar, 911 F.3d at 575. Consider first irreparable
harm. Plaintiffs’ allegations of harm, even assuming its irreparability, reflect
individual harm and do not justify class-wide relief. Meanwhile, the district
court’s class-wide injunction would continue to work irreparable harm on
Defendants. As the Supreme Court has acknowledged, “it is ‘difficult to imagine
an activity in which a State has a stronger interest, or one that is more intricately
bound up with state laws, regulations, and procedures, than the administration of
16 26-4872
its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94 (2006) (citation omitted). The
State’s interest here is severely disrupted by the district court’s overhaul of
Oregon’s prison system. And by imposing a presumption that “transgender
women” inmates be assigned to a women’s prison, the district court’s injunction
not only displaces the State’s role as prison administrator—it compromises public
safety too.
The balance of the equities and the public interest thus sharply favor
Defendants. Under the district court’s order, more than a hundred inmates
currently in men’s prisons could be channeled to and placed in the only state-run
women’s prison in Oregon. Those inmates include Plaintiff J.F., who sexually
assaulted a woman by lodging a footlong plastic object into that woman’s vagina,
and other inmates convicted of violent crimes. 2-ER-240. The district court
allows for the presumption to be rebutted by “a documented and articulable
security justification” (1-ER-3), but it apparently believed that, in J.F.’s case, no
such justification existed. Remarkably, the district court stated that “no
explanation has been provided as to why J.F.’s violent history requires [J.F.’s]
continued housing in a men’s prison.” S.D., 2026 WL 1146591, at *12. If J.F.’s
record does not rebut the district court’s presumption, it is hard to see what
would. Consider then the order’s implications: Against the State’s deliberate
judgment, the district court could force Oregon to transfer the named Plaintiff to a
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women’s prison because Plaintiff now identifies as a woman—an individual who
no one disputes was convicted of perpetrating sexual violence against a woman in
a manner most unconscionable. Plainly, that is not in the public interest. And
because the district court found that Plaintiff served as an adequate class
representative whose claims are typical of the other class members, hundreds of
other class members (many with histories of violence against women) could be
ordered transferred too. The equities and public interest do not justify that result.
* * *
The law and facts do not clearly favor the district court’s order here. Nor do
the other Winter factors support it. Accordingly, we vacate the district court’s
preliminary injunction and remand with instructions to decertify the class. Given
the risk that delay could moot the appeal, see Ahlman v. Barnes, 20 F.4th 489,
493–95 (9th Cir. 2021); Norbert v. City & Cnty. of San Francisco, 10 F.4th 918,
926–27 (9th Cir. 2021), the mandate shall issue forthwith. See Fed. R. App. P. 2;
Ninth Cir. Gen. Order 4.6.b.
PRELIMINARY INJUNCTION VACATED; CLASS DECERTIFIED;
CASE REMANDED; MANDATE ISSUED FORTHWITH.
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