America’s Most Unflappable Women’s Rights Activist Is Imprisoned with Men

In January, her challenge to the Bureau of Prison’s transgender policy will go to trial

Q. So what would – what would you call a biological male living as a female?

A. A man.

Deposition of Rhonda Fleming (2024)

Photo of Rhonda Fleming copied from the KPSS USA website.

My X account is not popular. But last week I attracted thousands of likes by screenshotting, of all things, a paragraph of a Department of Justice brief. In the paragraph, DOJ disapprovingly quotes Rhonda Fleming, a woman suing her prison warden (DOJ’s client) for forcing her to bunk with trans-identified men.

The next day I tacked on a thread of quotes from Fleming’s deposition in that case, in which she outwitted a priggish DOJ attorney. For example:

Q. You’re – you’re aware that there is surgery to change gender. Right?

A. There’s no such thing. They can cut their genitals off, but it doesn’t change their biological makeup.

I’d actually written about Fleming before, in August 2023. At that point it looked like she was proceeding in her lawsuit pro se. I used her as an example to illustrate the folly of biglaw attorneys representing gender doctors pro bono instead of needy clients:

“Biglaw attorneys: this is real civil rights litigation. Take Rhonda Fleming’s case pro bono.”

Little did I know that earlier in 2023, Jeff Bristol had stepped up to represent Fleming pro bono. He’s a Florida lawyer who runs a commercial litigation firm with a partner, Paul Parrish, based in Tampa. With the aid of another area attorney, his friend Diego Pestana, he’s developed legal arguments, conducted discovery, defeated the government’s motion for summary judgment, and set the case up for trial in January 2025 in Tallahassee.

Fleming argues that the Bureau of Prison’s policy of housing trans-identified males in women’s prisons violates her constitutional right to “bodily privacy.” She wants her male bunkmates to be housed together in their own trans-only unit. Bristol believes this will be America’s first trial on the question of whether housing trans-identified men in women’s prisons violates the women’s rights.

I interviewed Bristol last week and reviewed some of the public court filings. In this post I’ll introduce you to Fleming and Bristol, explain the legal argument, and project what all this means for the future of litigation against irrational trans policies. 

But first, we check in with an old friend.

Chase Strangio Strikes Again

Why aren’t trans inmates already housed in their own units?

I did a deep dive into US men-in-women’s-prison rules in March. Implementing the Prison Rape Elimination Act (PREA), these 2012 regulations provide for a modified self-ID system in which BOP makes the ultimate decision about where trans-identified men should be placed, and the inmates do not need to have received surgery.

The PREA regulations bar BOP from establishing separate housing for transgender inmates except “in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.” It’s an odd caveat that sounds like it reflects activist input – they’re the ones who file lawsuits that lead to settlements and judgments.

One of the activist lawyers who advised DOJ on the PREA regulations was Chase Strangio, then a fellow at the Sylvia Rivera Law Project in NYC (she’s now a notorious ACLU bigwig). In 2020 she reflected on the experience:

“‘We asked [trans] people in prison what they needed, and they all said that they wanted a trans unit,’ Strangio said. But the lawyers in the working group, including Strangio, believed that L.G.B.T. units were stigmatizing, and only served to perpetuate the prison system. They advised that inmates’ housing should not be determined solely on the basis of sexuality or gender identity. The D.O.J. accepted the recommendations, and a number of units were shut down. Strangio now regrets the outcome. ‘We acted as though the real stakeholders were the law professors,’ [she] said.”

I’ve written about how Strangio deceives judges. I wonder if she told DOJ that the trans inmates whose interests she purported to represent did not want the solution she was recommending.

The Lawsuits of Rhonda Fleming

This is not Rhonda Fleming’s only showdown with the BOP. She’s currently litigating an asbestos claim against the prison system. Bristol notes that she’s represented by prestigious pro bono counsel in that action – a sign that her claim is meritorious and important. (But take that with a grain of salt because pro bono lawyers at multiple prestigious firms are now representing boys who want to play sports against girls.)

Fleming led fellow inmates in testifying against Federal Corrections Institute (FCI) Dublin, in California, which was known as a “rape club” because guards routinely abused the women. According to local media this year, “Fleming has been a longtime vocal critic of FCI Dublin and has helped many incarcerated women file grievances and legal briefs during her time there.” Her activism seems to have been key to securing relief from a federal court, including the appointment of a special master to oversee reforms at the prison. It’s now closed.

Fleming was convicted in 2009, at age 43, of Medicare fraud and related crimes. Her husband died in 2013. She has a strong faith. According to her 2024 deposition:

“I'm a Messianic Jew, which is aka a Christian. I receive Jesus Christ. I love the Lord. I respect the Lord. I became close to God. I, I dedicated myself to the Lord March 18th of 20 -- 2005, when I self-surrendered on this charge.”

Fleming’s opposition to BOP’s transgender policy is rooted in her faith:

Q. How does your religious belief play into your view of transgenderism?

A. My faith tells me I'm not supposed to be naked in front of any man that I'm not married to.

Fleming bears no ill will toward trans people:

“I like Bruce Jenner or Caitlin Jenner, whatever she's going on by now. Caitlin or Bruce Jenner was one of my heroes as a child. I have absolutely nothing against this person. I don't want to be in a bathroom with Bruce Jenner.”

BOP has transferred Fleming between facilities incessantly, as Amie Ichikawa points out. Bristol echoes Ichikawa’s concern that it’s retaliation for her rabble-rousing. Fleming reports that she has been forced to live among males in extremely low-privacy settings (more on that in a minute) in six prisons.

Fleming’s 2024 deposition transcript is a tour de force. For example, she refuses to agree to any definition of “transgender” because she thinks the concept is made up. This forces the DOJ attorney to abandon the term “transgender women” and call the male inmates “biological males.” X users loved it:

Fleming sometimes slips and refers to a man as “she” because she’s used to submitting to BOP’s coerced-pronouns regime. She then corrects herself. 

Fleming explained what it’s like to be incarcerated with men to KPSS in 2021:

“I have personally experienced sexual harassment, threats of assault after I filed a lawsuit, and physical intimidation by male inmates in the prison. Once a woman makes it clear that she is not interested in befriending or hanging out with these men, they become petty, like a little boy that is rejected in grade school. It is a frightening experience because these men are not petite, effeminate males, but large, strapping, aggressive, criminal-minded men, violent inmates. …

“Our ability to become better people and contribute to our communities has been stifled by intimidation by male inmates and prison officials’ attempts to indoctrinate us into believing that these male inmates are women.”

(Fleming’s depiction of trans-identified male inmates clashes with Strangio’s recollection that these men preferred a wing of their own. I suspect that’s because the population of “transgender women” changed drastically – and grew – once BOP provided a giant incentive for men to identify as trans without imposing a surgery requirement.)

Fleming has been fighting the issue of men in women’s prisons for many years. In 2016 she sued the BOP alongside other women who were incarcerated at Federal Medical Center, Carswell, near Fort Worth. The Alliance Defending Freedom (ADF) began representing them, then stopped “actively litigating” in 2019, citing its clients having been released from prison and the fact that the Supreme Court’s pending decision in Bostock might impact the landscape. Also, it seems the lead counsel had retired from ADF. 

Fleming, who had not been released, continued litigating pro se. She had long wanted ADF off the case because she thought the organization was too cozy with the Trump DOJ, which was not doing enough to get trans-identified men out of women’s prisons. (She noted that she supported Trump personally.) She seemed to accuse ADF of putting another agenda above representing its clients’ wishes — a situation that would parallel how Strangio and her comrades behaved with the Obama DOJ. (I have no idea what was actually happening in the Fleming/ADF instance.)

The Dallas Morning News reported that a formerly ADF-affiliated lawyer named Lisa Biron was “represent[ing]” Fleming’s co-plaintiffs. That’s not possible because Biron had by then been disbarred and locked up for filming her 14-year old daughter having sex with men. I guess she was acting as a jailhouse lawyer. Fleming was upset by Biron’s involvement in her case, calling her a “child molester.”

Anyway, that litigation ended. Fleming sued again in 2021. Some of her claims were dismissed, but one regarding “bodily privacy” moved forward in the federal Northern District of Florida. That’s the case she’s litigating now.

Meet the Lawyer

Jeff Bristol is a veteran of the Army and Navy who served in Afghanistan, then earned a PhD in anthropology and later a JD from the University of Michigan (a top-10 law school). He began his legal career as a public defender. Now he practices commercial litigation at a Tampa firm and takes on pro bono cases that he has “strong feelings about.”

As a member of the Northern District of Florida bar, Bristol receives email blasts about litigants who are seeking pro bono counsel. Fleming’s case landed in his inbox around March 2023.

From the Parrish, P.A. website. Bristol is the guy on the left.

Bristol had sued the Florida prison system before, but he’s new to suing the federal BOP and had not previously been involved in activism related to gender. After taking on Fleming’s case he assisted in drafting amicus briefs for Stephen Cranney, a sociologist and demographer who argues in favor of sex-segregated locker rooms in legal challenges to the Biden administration’s Title IX changes. He’s also interviewed three or four other female inmates who were concerned with the transgender housing policy. 

While Bristol doesn’t “like labels very much,” he acknowledges that “other people would certainly label me as conservative.” The fact that irrational transgender policies have brought together organizations like the feminist Women’s Liberation Front (WoLF) and conservative ADF is, in Bristol’s opinion, “the silver lining of the whole situation” because “it forces people to see … they’re not as dissimilar as they might think they are.”

Bristol empathizes with the “everydayness” of the problems caused by mixed-sex prisons:

“There’s a tendency to want to sensationalize it ... However, there’s an everydayness to it that makes it really bad. … An example Rhonda has given … In the prisons, women used to be allowed knitting needles … Well, the level of violence in these prisons has gone up with the introduction of men. So now they can’t have knitting needles. … The social environment that the women create in a prison is so radically different from the social environment that men create in their prisons. And it’s so different that when you introduce even a small number of the other into the one, then it has these weird catastrophic effects that … really show how different men and women are.”

The Moldy Shower Curtain Argument

The case presents one question for trial: Is the BOP warden, Erica Strong, forcing Fleming to expose her naked body to men? 

If so, Strong is violating Fleming’s constitutional right to “bodily privacy.” This right is not explicitly stated in the US Constitution, and not even neatly tethered to a particular provision in it, but courts in the 11th Circuit (which covers Florida) and most other circuits have recognized it, according to Bristol.

That one simple question requires the court to determine exactly how “flimsy” the shower curtains are, how large the gaps are in the toilet-stall coverings, and what a man is.

The matter of curtains, flaps, and stall coverings is complex. Fleming described the scene at Tallahassee FCI in her deposition:

“[P]eople just left the shower curtains open because they didn't want to touch the mold or mildew that are on -- that's on the shower curtains. They didn't want their body to come in contact with it.”

Another problem, this time at Carswell:

“[T]hese men enter the bathroom trying to have conversation with you or just talking to you through the door. And it's an uncomfortable feeling for a woman to be using the bathroom in an area with no cameras that is secluded, maybe a two or three stall bathroom, and a male is in the bathroom with you, and you're trying to use the bathroom. Showering was the same thing at Carswell. It was just a day-to-day struggle with their aggressiveness, their soliciting of females for sex -- for sex in the prison, and just outright aggressive behavior. We were tremendously afraid.”

Strong doesn’t believe that Fleming has suffered a “concrete and particularized injury” worthy of relief:

“[Fleming’s] allegations of emotional harm are more akin to a ‘general disagreement’ that the Eleventh Circuit has found insufficient to create standing [to sue].”

As to whether transgender women are women, it doesn’t appear Strong has tried to establish that. She might not try. Even pro-trans appellate courts tend to sidestep the question of what sex transgender people belong to. There may not be any precedent to cite for the proposition that some men are women. Precedent or no, it is a bit transphobic for Strong not to make the argument.

Strong refers to trans-identified men in her summary judgment motion alternately as “biological males,” “natal males,” “transgender females,” and “transgender women.”

Reaction to the X thread of Fleming quotes

Defense

Strong argues that BOP’s transgender housing policy is reasonable under Supreme Court precedent related to prison rules. Relevant factors include whether there’s a valid nexus between the policy and the government’s interest it supposedly advances, the impact accommodating Fleming’s rights would have on guards and other inmates, and whether BOP had other ready alternatives to the policy.

Testifying to much of this at trial will be Alix McLearen, who is Special Assistant to the Director’s Office at BOP and worked on the Transgender Offender Manual. McLearen has argued in this litigation that housing men in women’s prisons “serves to maintain the safety and security of BOP facilities.”

So far McLearen has not made the methodology behind the Manual look very impressive. Bristol got Strong to admit that “BOP did not give any consideration to biological females’ right to bodily privacy when BOP considered, adopted, and implemented the Transgender Policy[.]” 

Relief

Fleming wants Strong to create separate housing for trans-identified inmates. Strong argues that the PREA regulations bar her from doing so. As I discussed above, those regs have a caveat for legal settlements and judgments. But Strong also indicates that she wants to keep the men in women’s prisons for their (the men’s) safety. Citing one particular man, she argues:

“[Fleming] would have ET, a transitioned, post-operative transgender woman, housed in a male facility despite the obvious safety risks of such a placement (or alternatively, ‘in their own prison’).”

Fleming specifically asks the court to enjoin the Transgender Offender Manual, which is a document that BOP develops subject to the PREA regulations. 

If the judge finds that Fleming’s rights were violated, I can imagine a range of possible orders – from upgraded shower curtains to segregation of trans-identified males into their own wing or an injunction against PREA’s transgender housing regulations.

The judge ruled out the possibility of damages for Fleming early in the litigation.

In this Courthouse We Believe Gender Identity Is Real

When Strong moved for summary judgment, her brief included a passage about Fleming’s terfiness (typos corrected):

“Reviewing the evidence, [Fleming] squarely believes that ‘transgender individuals have inappropriately chosen a contrary gender identity’ to their natal sex. See Doe, 2024 WL 2947123, at * 3 (emphasis in original); [ECF No. 133-1, p. 10:8-10 (‘Q: So what would -- what would you call a biological male living as a female? A: A man.’)]. Indeed, she refuses to even recognize the term ‘transgender’ exists. [Id. at 10:22-23 (‘My statement is transgenders do not exist, so there’s no definition.’)].”

I left in the citations so you could see the first one: Strong isn’t quoting Fleming there. She’s quoting a case called Doe v. Ladapo and asserting that Fleming’s views match one that it disparages. 

Ladapo is a 2024 ruling from the same court, Northern District of Florida, in which Judge Robert Hinkle found that the state’s ban on pediatric gender medicine was unconstitutional. (I wrote about his decision in June.) Here’s the passage that Strong quoted from above:

“The elephant in the room should be noted at the outset. Gender identity is real. … 

“[T]here are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham. Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence. …”

I don’t see the legal relevance of Fleming’s views on gender identity. The question in her case, remember, turns on whether “filthy” curtains stretch fully from one end of the shower stall to the other.

I wonder if Strong is quoting Fleming’s deposition because the judge in her case, Mark Walker, clerked for Hinkle. This often means a mentor-mentee relationship. Strong may be hoping to turn Walker against Fleming based on her beliefs. If I’m right, that’s chilling. Strong and her DOJ lawyers are, of course, government actors.

To be fair, Strong states: “[Fleming] is free to maintain this belief.” She implies that the belief is relevant because it suggests Fleming has an anti-trans motive for bringing the suit – but motive isn’t an element of the bodily privacy claim.

Who Wants to Represent Fleming Next?

The gender industry’s victims are legion: female prisoners like Fleming, trans-identified patients abused by doctors and therapists, parents of children who want to use gender drugs, small businesses accused of anti-trans discrimination, workers fired for wrongthink. Many of these people aren’t able to fight for their rights because they can’t find lawyers willing and able to take their case, or they can’t afford a lawyer.

Only a few nonprofits serve these clients. Biglaw won’t represent them pro bono. Many smaller firms won’t take them for pay. Why? Even in Tallahassee, which is considered part of the Bible Belt, at least one influential federal judge believes “gender identity is real” and appears to feel some dudgeon about it. This can deter local law firms from championing a truth-bomber like Fleming.

Bristol represents the near-term future of sex-realist litigation: freethinking lawyers who aren’t chained to a cautious bureaucracy and wear Hawaiian shirts in their law firm website pics.

They’re great. We just need more of them.