Colleen Roske, the mother of the person who pled guilty to an assassination plot against U.S. Supreme Court Justice Brett Kavanaugh, discovered her child was transgender after their arrest.

Colleen told Maryland U.S. District Judge Deborah L. Boardman in a letter that she had discovered hospital discharge paperwork identifying her child as Sophie Roske in her bedroom following her arrest in a Washington, D.C., suburb outside Justice Kavanaugh's home.

Colleen's letter urged Judge Boardman for leniency in her daughter's case, blaming herself for not recognizing the signs and saying that while she couldn't have accepted Sophie's identity prior to her arrest, Colleen is now a member of PFLAG, an LGBT organization for parents of queer children.

Judge Boardman would ultimately sentence Sophie to eight years in federal prison in October, much lower than the sentence of 30 years to life that federal prosecutors had requested.

U.S. Attorney General Pam Bondi at the time called the sentence "woefully insufficient" in a statement that referred to Sophie Roske by her pre-transition name. While the 29-year-old Sophie had not asked the court to alter the criminal case caption, her attorneys have argued in court that her struggles with gender identity may have influenced her actions.

The U.S. government in October began appealing the sentence handed down to Roske.

Roske apologized for the plot in an undated letter to the Kavanaugh family signed "Sophie Roske." The letter was published in September by Roske's attorney the same day they filed a sentencing memorandum that tied her plot to kill Justice Kavanaugh to her inability to successfully come out as trans to her religious parents.

Roske's case is a high-profile one, but it sheds light on how trans defendants in general are treated by the criminal courts, transgender individuals and legal advocates say.

Prosecutors and defense counsel alike are often unprepared for — and at times openly hostile to — defendants with trans identities in criminal courts across the United States.

Academic and legal experts told Law360 that criminal courts continue to fail at treating trans defendants fairly compared with their cisgender counterparts at nearly every stage of the criminal justice process. The issue stretches from the filing of police reports to sentencing and incarceration.

These experts agree that by showing a modicum of respect to trans people and their chosen identity, courts and their staff and attorneys could make a significant improvement in how trans people experience the criminal justice system.

Shawn Meerkamper, managing attorney for the Transgender Law Center, an organization that specializes in training defense attorneys to better serve trans clients, said it's important for counsel representing those populations to advocate for them when in the courtroom.

"It's a question of basic respect, and even for judges or prosecutors who may be more conservative, there's a way of getting them to understand," Meerkamper said.

Judicial Power to Address Inequity

The treatment a trans person receives throughout their time in the criminal justice system depends greatly on how the judge assigned to their case is willing to address trans issues, said Deborah Lolai, a clinical professor with Harvard Law School's LGBTQ+ Advocacy Clinic.

Lolai said that particularly in New York, many judges are unwilling to ensure that trans people being held in jail while their matters are pending are placed in housing that is consistent with their identity or are placed into protective custody, a type of segregated housing akin to solitary confinement.

"I remember an exchange pretty recently between an attorney and a judge where the client was asking that the client's gender be marked correctly on the paperwork so that the client, who was a trans woman, could go to the women's facility at Rikers Island," Lolai said. "And the judge responded by saying, 'If I gave special treatment to this trans person at Rikers Island, I would need to give protective custody to every trans person.'"

A transcript obtained by Law360 of the court proceeding referenced by Lolai indicated that Bronx County Supreme Court Judge Cynthia Isales made the remark in February. Judge Isales said that protective custody would be "overwhelmed" if every trans person were placed in it.

Judge Isales said to the defendant at the hearing that "I hope that you are safe. I hope that they put you in appropriate housing," but ultimately denied the request to provide protective custody.

Judge Isales and a spokesperson for the New York State Unified Court System declined requests to comment for this story.

Klevis Baholli, a social worker with the Bronx Defenders LGBTQ Defense Project, said judges often fail to understand that jails like Rikers are ill-equipped to protect trans people.

Baholli said that "when a trans person is requesting [protective custody] … it is out of desperation, and typically a plea for help once the internal channels within [the correction department] have been exhausted."

Baholli said that in New York City, transgender and gender nonconfirming people who are incarcerated often are allowed to apply for the city's Department of Correction's Special Considerations Unit, which allows applicants to be placed in housing that aligns with their gender identity.

A report from the New York City Task Force on Issues Faced by TGNCBI People in Custody, a group that was formed by the New York City Board of Corrections, which oversees Rikers Island, found that paperwork issues beginning in criminal court can spill into how trans people are treated in jail. The abbreviation in the group's name is a reference to transgender, nonconforming, nonbinary and intersex people.

Lolai, who was on the task force while at Bronx Defenders, said that despite the concerns, Rikers Island actually treats trans people better than many other facilities, showing the scale of the problem.

"The reality is that Rikers Island is on the more progressive side of the issue than the rest of the country," Lolai said.

Changing Prison Regulations Have Lasting Impacts

Many states not only restrict housing options available for trans people inside prisons but also restrict medical care options like access to hormone treatments used to address gender dysphoria, a psychological disorder arising from conflict between a person's gender identity and the person's assigned sex at birth.

The federal government was hit with a class action after President Donald Trump issued an executive order on the first day of his second term in January, prohibiting hormone replacement therapy for transgender individuals in federal custody. The lawsuit, which was filed in D.C. federal court, seeks to have the executive order declared unconstitutional and that it violates incarcerated trans peoples' rights under the Fifth and Eighth amendments.

The Federal Bureau of Prisons has acknowledged in federal court filings that as of February, there are 2,198 transgender individuals incarcerated in BOP custody and of them, only 22 trans women and one trans man are housed in facilities that align with their chosen identity.

The federal ban on hormone treatments came after some states, such as Florida, began banning the treatments last year.

The Florida Department of Correction's Office of Health Services' bulletin banning the treatments, which was made public in federal court filings when an incarcerated person sued over the ban, referred to people suffering gender dysphoria as having "short-termed delusions" about their gender identity.

Documentation Is Part of the Problem

A large part of the experience for trans people is dictated by how they are described in police reports and by district attorneys in charging documents. Charging documents and reports often rely on government identification that may not match the identity of the person being charged, Lolai said.

Further complicating the issue, the U.S. Supreme Court in November ruled that the U.S. Department of State can deny passports to transgender and nonbinary individuals and rescind a longtime department policy of allowing applicants to change their gender marker — including removing an option for "X" designation.

Some larger police departments, including New York City's, have rules about respecting trans peoples' chosen names in documents and in person. But if government documents do not match, prosecutors say they must balance remaining sensitive to defendants with creative solutions when prosecuting cases.

Jason Allen, a former special assistant attorney general who was with the South Carolina Department of Insurance and prosecuted insurance fraud cases for nearly three years, said he has seen identification issues play out in those criminal proceedings.

Allen, who left the department in July, recalled how in one instance in which he was required to prosecute a trans client, he accepted the defendant's chosen gender identity despite it not matching government-issued identification.

"We ran into an issue where the [Department of Motor Vehicles] photo was pre-transition so identification between the government ID and social media was something we had to figure out," Allen said. "I just kind of landed on using an AKA. Luckily, the criminal justice system allows alternative names, so I was able to refer to their preferred names in the filings."

Trainings Could Prepare Counsel to Confront Issues

Meerkamper of the Transgender Law Center told Law360 that practitioners must anticipate that their clients will face housing and other issues, and be prepared to act.

Meerkamper said that whether a trans client is facing housing discrimination or misgendering by opposing counsel or a judge, they advise the trans person's attorney to ensure they address the issue as long as they have their client's consent.

"We advise people to file motions on it — both the rules of professional responsibility and canons of judicial conduct prevent discrimination and bias from influencing the course of justice," Meerkamper said.

Individual clients may be more or less open to discussing their identity openly in court, Meerkamper said. Some, like Sophie Roske, wait until sentencing before having their attorneys raise the issue. They may be grappling with fear over the reaction of family members and others who learn about their identity. Other people are fully transparent about their identity from the time of the arrest.

Meerkamper and Lolai cautioned that attorneys should have conversations with trans clients at every stage of the court process, regularly checking in to determine whether a particular issue should be raised in court.

"Number one thing is talk to the client about it," Meerkamper said. "People are sometimes too scared of being impolite to ask direct questions about people's gender identity, and of course when it's potentially going to affect their representation, it's something you have to talk about."

Federal appellate courts have also begun weighing in on trans issues in the courtroom, with Fifth Circuit case law now explicitly allowing the misgendering of trans individuals, highlighting the inherent risks of bringing up a client's gender identity.

A divided Fifth Circuit panel held in 2020's U.S. v. Varner that federal judges, court staff and other litigants cannot be made to refer to litigants using pronouns matching their identity. U.S. Circuit Judge Stuart Kyle Duncan wrote in the majority opinion that allowing litigants to use their chosen name could lead to attorneys being held in contempt for failing to observe a litigant's gender identity.

"When local governments have sought to enforce pronoun usage, they have had to make refined distinctions based on matters such as the types of allowable pronouns and the intent of the 'misgendering' offender," Judge Duncan said in the opinion. "Courts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking."

Prosecutors also should be interested in learning how to effectively work with trans populations, as they are often the victims of crimes that go underreported or are not taken seriously by law enforcement, Meerkamper said.

The Transgender Law Center provides a series of training sessions to attorneys who are interested in strategies for working with transgender clients, including how to screen for whether clients have been a victim of sex trafficking, which Meerkamper says is common for trans people.

One of the trainings, which was shared with Law360, outlines how federal laws like 2000's Trafficking Victims Protection Act helped broaden the scope of trafficking so attorneys are better able to recognize potential signs in vulnerable communities.

"Given its recent addition to penal law, many survivors do not know that they have experiences that fit within the legal definition of human trafficking," the training document said. "This failure to identify signs of trafficking extends to law enforcement officials, social workers and attorneys who often do not properly screen for trafficking victimization, particularly within marginalized groups such as LGBTQ people."

The training found that one of the most important things attorneys can do is be vigilant about trans-related issues and to think through how victims of crimes, as well as defendants, are impacted by the gaps in how trans people are treated by the criminal justice system.

Allen, who has tried cases involving trans defendants, agreed, saying that despite working in a traditionally conservative state like South Carolina, he still managed to handle prosecuting a trans person respectfully by relying on work from investigators with the South Carolina Law Enforcement Division — known as SLED — who filed the police report and deliberately removed any reference to the defendant's gender identity.

"My bosses had absolutely no idea what I was doing," Allen said joking about the experience. "I'll give the SLED agent some credit, there isn't a single pronoun in its 250-page report."

--Editing by Orlando Lorenzo and Lakshna Mehta.