Nation’s Criminal Defense Bar Rejects BOP Directives; Warns of Systemic Instability, Constitutional Violations, and the Abandonment of Medical Science
Washington, DC (February 23, 2026) – The Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) on February 21 passed a resolution defending the fundamental rights and human dignity of transgender individuals, signaling a unified challenge to the federal government’s escalating use of the carceral system to target marginalized communities.
The resolution is a direct response to recent Bureau of Prisons (BOP) directives—following Executive Order 14168—which have upended pre-existing, meager protections and replaced evidence-based medical care with discriminatory mandates. “The Bill of Rights does not stop at the prison gate,” said NACDL President Andrew Birrell of the Birrell Law Firm in Minneapolis.
“Seeking to intentionally house transgender women in men’s facilities—knowing the staggering rates of sexual violence they will face—is to knowingly facilitate state-sanctioned trauma. As sentinels of the Constitution, defense counsel cannot remain silent while the federal government weaponizes incarceration to dehumanize those in its care. This is a profound moral failure, and the defense bar will confront these unconstitutional mandates with every legal resource available.”
A System in Crisis
Beyond the immediate harm to individuals, NACDL leaders warn that the removal of gender-affirming care and safety protocols will lead to a predictable surge in medical and mental health emergencies, destabilizing an already strained federal system.
“This policy will cause profound and lasting harm to the safety, stability, and functioning of the entire federal system,” said Birrell. “When medically necessary care is withheld, staff are forced to respond to preventable crises—including mental health decompensation and acute distress. These emergencies consume already depleted resources and exacerbate the chaos across BOP facilities. Denying care creates more emergencies, not fewer, and the BOP simply does not have the capacity to manage the fallout. Many transgender individuals in custody have experienced significant prior trauma, including violence, sexual assault and harassment, including from BOP staff. Policies that ignore medical consensus increase harm, undermine trust, and create conditions that are more volatile and dangerous for both incarcerated individuals and correctional staff. We need credentialed medical staff in prisons and in policy-making positions—not political bureaucrats—to be involved in care and life-altering decisions related to that care.”
The Formalization of Cruelty
NACDL Executive Director Lisa Wayne stated that the measures represent a formalization of institutional cruelty and indifference. “The rules are changing to accept—and even encourage—a lack of care for transgender individuals,” said Wayne. “This follows a series of dangerous, discriminatory policies, including the January 20, 2025 executive order mislabeled as 'restoring biological truth,' which have created crisis, chaos, and constitutional violations. When the state is permitted to ignore physical safety with impunity, the rule of law is eroded for everyone. Dignity and constitutional restraint are not optional; they are the mandate.”
The NACDL resolution outlines six pillars for defense advocacy:
Safety-Focused Placement: Demanding housing be guided by gender identity and personal safety rather than genital anatomy.
Medical Necessity: Affirming that gender-affirming care is a constitutional right; its denial constitutes "cruel and unusual punishment."
Dignity in Professional Interaction: Requiring law enforcement to use affirmed names and pronouns to avoid dehumanization.
Resistance to Overcriminalization: Opposing "bathroom bills," bans on gender-affirming care, and the disparate policing of transgender communities.
Defense of Universal Liberty: Recognizing that state interference with identity is an erosion of the privacy rights that protect all citizens.
Professional Responsibility: Specialized training for defense counsel to ensure the highest standards of representation in a hostile system.
“If the government can withhold appropriate healthcare and ignore the safety of those in its custody for political convenience, then no one’s rights are secure,” concluded Birrell. “The defense bar stands as the final barrier against this kind of discriminatory overreach.”
Contacts
Jessie Diamond, Deputy Director, Public Affairs and Communications, (202) 465-7647 or jdiamond@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.
