Senators grill Biden judicial nominee over transgender inmate transfer request despite sex crimes convictions

A President Biden judicial nominee was grilled Wednesday over a 2022 recommendation that a biological male, who has apparently transitioned and identifies as a female, be transferred to a female prison despite previous convictions for raping children and possession of child pornography. 

During a Senate Judiciary hearing, Republican Sens. John Kennedy of Louisiana, and Ted Cruz of Texas, questioned U.S. Magistrate Judge Sarah Netburn, who was nominated to serve on the U.S. District Court for the Southern District of New York, over why she recommended William McClain, who goes by July Justine Shelby, be housed with female inmates in a federal prison. 

"Miss Shelby said I don't want to go to a male prison. I want to go to a female prison," Kennedy told Netburn. "And 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, did you? You said that the Board of Prisons was trying to violate Ms Shelby, former Mr. McClain's, constitutional right, didn't you?"

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He noted that Shelby, who was incarcerated at the Federal Correctional Institution in Otisville, New York, had been convicted for raping a teenage boy and young girl, as well as sending child porn to other sex offenders. 

"I issued a report and recommendation to the district judge recommending that the district judge transfer the petitioner to a women's facility," Netburn replied. 

"My recommendation was that the petitioner's serious medical needs were being denied by keeping her in a men's facility," she added. 

Upon Netburn's Aug. 3, 2022, recommendation, U.S. District Judge Broderick issued an order to the Bureau of Prisons requesting the agency "transfer Ms. Shelby to a female facility as soon as possible."

In a handwritten petition filed in April 2020, Shelby said she feared for her health, safety and life and suffered from gender dysphoria.

Cruz questioned Netburn about Shelby's male appendage. 

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"And this individual. Six-foot-two, biologically a man. A minute ago you said that when this man decided that he was a she, that you said this individual was quote, I wrote it down, ‘sober and entirely a female,’" he said. "That phrase struck me as as remarkable. Did this individual have male genitalia?"

"Sorry, what I meant to say was hormonally a female," Netburn replied before admitting Shelby has male body parts. 

"So you took a six-foot-two serial rapist. Serial child rapist with male genitalia," Cruz said. "And he said, you know, I'd like to be in a women's prison. And your answer was, ‘That sounds great to me.’ Let me ask you something. The other women in that prison, do they have any rights?

"Do they have the right not to have a six-foot-two man who is a repeat serial rapist put in as their cellmate?" Cruz added.

"Senator Cruz, I consider the facts presented to me, and I reached a decision," the judge said before noting that everyone incarcerated has a right "to be safe in their space."

Cruz then referred to Kennedy's earlier remarks when he called Netburn a "political activist." 

"This is not a judge's order," Cruz said. "This is a political activist, by the way. The beginning of your order, says. At birth. People are typically assigned a gender. I gotta say, that would astonish a lot of Americans. A lot of Americans think you go to the hospital, a baby is born, and you congratulations."

"You have a little boy, a little girl the assigned a gender. I know you went to Brown (University), but it sounds like it's in a college faculty lounge with no bearing on reality, the Bureau of Prison argued," he continued. "What I'm saying right now, that if you put this person in a female prison, there will be a risk of sexual assault to the women. And you know what you did? You said you didn't care about the women. I'm going to quote what you wrote. You wrote, quote, the Bureau of Prisons claimed penal logical interest in protecting female prisoners from sexual violence and trauma. This interest is legitimate."

Netburn maintained that she "looked at the facts that were before me in this case."

Cruz and Kennedy then got into an argument with Sen. Laphonza Butler, D-Calif., who was chairing the meeting after Sen. Dick Durbin, D-Ill., stepped out, to allow Netburn more time to explain herself and potentially change her testimony. 

"Senators, I gave both of you more time to finish your line of the questioning," said Butler.

"She has an obligation to explain why she directly contradicted what she wrote in her report," said Cruz. "She says in her report, the Bureau of Prisons claim technological interest is in protecting female prisoners from sexual violence and trauma. She just told you the Bureau of Prisons didn't say there was a concern about sexual violence and trauma. Those are directly contradictory. And why are you contradicting what you wrote in your report."

"This is absurd!," yelled Kennedy.