Remaking The Federal Judiciary In Biden's Image Means Men In Women' Prisons

As the White House celebrates President Joe Biden's attempts to remake the federal judiciary, one of his most extreme appointees came under withering fire in the U.S. Senate after it was revealed she had signed off on transferring a male sex offender to a female prison.

U.S. Magistrate Judge Sarah Netburn of the Southern District of New York had to answer for her decision before the Senate Judiciary Committee. The offender -- born William McClain but who later identified as a woman named "July Justine Shelby" -- entered a guilty plea in 1994 to raping a nine-year-old boy and a 17-year-old girl in Indiana. He served 18 years in prison before his release.

He violated parole in 2012 and remained imprisoned until 2015. McClain started cross-sex hormone injections in August 2015.

In 2016, authorities arrested McClain -- now identifying as Shelby -- for sending child pornography to a man who became his jailtime boyfriend. Judges sentenced him to 15 years in Otisville Federal Correctional Institution. He appealed for transfer to a women's facility and continuation of transgender procedures.

The Bureau of Prisons (BOP) opposed the transfer request over concerns he would sexually molest female inmates -- but Netburn overruled them and insulted their motives.

"The overwhelming evidence suggests that BOP's decision to deny [McClain/Shelby] a transfer to a women's facility is based on bias and fear and not evidence. It is not reasonably related to the legitimate penological interest of protecting prisoners," wrote Netburn in a 48-page opinion. "The BOP has violated Petitioner's Eighth Amendment rights by refusing to transfer [him] to a women's facility, and that refusal is not reasonably related to legitimate penological interests." 

Netburn's decision stated, "There are no signs" that the serial predator and kiddie porn distributor "is at risk of re-offending" inside a women's penitentiary. "[W]ithout more" than "a theoretical risk" McClain would rape an inmate, Netburn ruled she "cannot support the [Bureau of Prisons'] position."

U.S. District Judge Broderick subsequently transferred McClain to FMC Carswell female prison in Fort Worth, Texas.

Two outspoken conservative senators demanded answers this week.

"The Board of Prisons said, 'What planet did you parachute in from? You're going to a male prison with this kind of record?' And you sent him to a female prison, didn't you? You said that the Board of Prisons was trying to violate Ms. Shelby -- former Mr. McClain's -- constitutional rights, didn't you?" Senator John Kennedy (R-La.) asked Netburn.

Netburn, who once interned at the Center for Reproductive Law and Policy, squirmed that she merely issued a report to a "district judge recommending that the district judge transfer the petitioner to a women's facility,"

"My recommendation was that the petitioner's serious medical needs were being ignored by keeping her in a men's facility," Netburn answered, equating transgender treatments with "serious medical needs."

Netburn agreed with Kennedy's statement that she claimed the prison board had committed "a violation of the 8th Amendment," which bars cruel and unusual punishment.

Senator Ted Cruz (R-Texas) took issue with Netburn's statement that McClain is "entirely a female."

"That phrase struck me as remarkable," said Cruz, confronting Netburn. "Did this individual have male genitalia?"

"Yes," replied Netburn.

"So, you took a six-foot-two serial rapist -- serial child rapist -- with male genitalia, and he said, 'You know, I'd like to be in a women's prison.' And your answer was, 'That sounds great to me'"? Cruz asked in pique.

He then asked Netburn if the female inmates in the penitentiary "have the right not to have a six-foot-two man who is a repeat serial rapist put in as their cellmate?" "This is not a judge's order. This is a political activist," continued Cruz. "The beginning of your order says, 'At birth, people are typically assigned a gender.'"

"This hearing was fantastic, because it demonstrated once again how vital it is that Biden not be given four more years to destroy the integrity of another institution: the federal courts," said Laura Ingraham on Fox News Wednesday night. If Biden remakes the federal judiciary, "traditional Christians will be totally run over."

Despite Wednesday's verbal tussles, the Senate confirmed Biden's 200th judicial appointment the same day.

Originally published at The Washington Stand