Washington Supreme Court hears challenge to transfer of transgender inmate Amber Kim

The Washington State Supreme Court heard oral argument June 23 in the personal restraint petition of Amber F. Kim, who says the Department of Corrections’ move from the Washington Correctional Center for Women to a men’s prison and the conditions that followed amount to cruel punishment under Article I, Section 14 of the state constitution.

Adrianne Levitt, counsel for Kim and a lawyer with the American Civil Liberties Union of Washington, told the court that the department “transferred her to a men's prison” after what Levitt described as a routine infraction and that the transfer produced punitive conditions including prolonged restrictive confinement. Levitt argued the petition may be resolved by examining Kim’s conditions on the record and applying the Williams test for cruel conditions of confinement.

“The Department of Corrections' treatment of Amber Kim constitutes cruel punishment,” Levitt said, asking the court to consider a proportionality inquiry even if the department’s stated reasons for the transfer are disputed. She told the justices that Kim has experienced two attempted assaults, targeted harassment and significant mental-health harms tied to restrictive confinement.

Deputy Solicitor General Emma Grundberg, representing the Department of Corrections, urged the court to affirm the denial of the petition, arguing that “neither prong of the Williams test has been met.” Grundberg said DOC currently houses transgender people under continuous PREA monitoring, heightened privacy measures and gender-affirming medical and mental-health care, and framed the transfer as rooted in contemporaneous housing and safety assessments reflected in agency exhibits.

Much of oral argument focused on two procedural and legal questions: (1) whether material factual disputes in the record require a reference hearing (a fact-finding remand to the trial court) and (2) how strictly the court should apply deference and the Williams two‑prong test. A panel justice repeatedly asked whether disputed facts about why Kim was moved — for example, whether she had been housed in a monitored unit at the men's facility or in general population — would require a reference hearing. Levitt maintained the fact that Kim is housed at a men’s prison is undisputed and that the court can review the conditions de novo; Grundberg said petitioner must identify admissible evidence that would resolve any material dispute before a reference hearing is warranted.

Counsel debated documentary evidence in the record, including housing-review materials and the declaration identified as exhibit I. Grundberg pointed to contemporaneous housing protocol materials and the Wofford declaration as evidence of DOC’s reasoning. Levitt contested the admission of some declarations as expert medical testimony and argued that the record shows a disparate and disproportionate response to an infraction.

The justices also pressed on operational facts: whether Twin Rivers Unit (TRU) is a gender‑specific wing (respondent counsel said it is not an "LGBT wing" under federal law), the meaning of DOC’s S‑code classifications (S2 and S3) used in housing and clinical records, and the interaction between DOC’s recurring six‑month housing reviews and any court‑ordered reference hearing.

Levitt told the court that Kim has spent “two years and two days” in restrictive confinement and argued that prolonged isolation and the denial of the ability to live congruent with her gender identity are compounding harms relevant to the Williams test. Grundberg acknowledged the transfer and said DOC’s periodic reviews continue and that the department aims to reasonably manage risk while providing appropriate care.

After rebuttal from Levitt reiterating disputed facts and the argument that the department’s punishment was disproportionate, the court submitted the case. The justices did not announce a decision from the bench; the matter was taken under advisement and the hearing was adjourned.

The court’s ruling will determine whether the personal restraint petition should be granted, whether the case must be remanded for a reference hearing to resolve material factual disputes, or whether the petition may be resolved on the existing record under the Williams standard.