Facing sex discrimination claims, Texas begins jailing migrant women under border crackdown

“Facing sex discrimination claims, Texas begins jailing migrant women under border crackdown” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Facing sex discrimination lawsuits for targeting men under the state's border security crackdown, Texas has begun putting migrant women in state prisons, too.

Since last week, women arrested under Gov. Greg Abbott's yearslong Operation Lone Star have been sent to a state prison facility in Edinburg, prison and state police officials confirmed. By Tuesday, 25 women, most accused only of trespassing, were being held at the Lopez State Jail, which typically houses men convicted of low-level crimes.

Texas Department of Criminal Justice spokesperson Amanda Hernandez said officials had cleared out one building in the facility to house up to 200 females.

It's been two years since state troopers began arresting migrants en masse in response to record-high levels of Texas-Mexico border crossings. Texas can't enforce federal immigration laws, but Abbott skirted the restriction by ordering state police to jail people suspected of illegally crossing the border on misdemeanor trespassing charges.

The state cleared out two prisons, which house convicted felons, to instead detain these misdemeanor defendants, not yet convicted of any crime. Soon, thousands of migrants caught on private ranchland or at railyards had been swept into Texas' new criminal justice system specifically erected for them.

But troopers were instructed to arrest only single men they encountered, turning women and families over to the U.S. Border Patrol. Then the lawsuits came.

Under both the U.S. and Texas constitutions, equal protection laws require governments to treat people alike, regardless of race, national origin or sex.

Last September, a state district judge tossed out trespassing charges against six migrant men in Zapata County, siding with defense attorneys who argued the state was unconstitutionally discriminating against men by not arresting women or children. A flurry of other legal challenges followed, with varying results.

In one case, a judge decided a man's May 2022 arrest in Maverick County wasn't discriminatory because the women in his group, who were referred to immigration authorities, could be charged later, even though troopers had not collected any identifying information. An intermediate appeals court overturned that ruling last month, finding the man's arrest “expressly discriminated on the basis of sex.”

As the legal filings began mounting, the Texas Department of Public Safety changed course, telling troopers in December to begin arresting single, female migrants, a department spokesperson said last week. Troopers are still told not to arrest minors, adults over 65 or families.

Defense lawyers say the change appears to be a direct response to sex discrimination lawsuits.

“Since we started making equal protection challenges, we've seen a few token arrests of females here and there,” said Kristin Etter, Texas RioGrande Legal Aid's lead attorney for Operation Lone Star cases. “But the practice of releasing females to Border Patrol for processing is still widespread.”

As of Saturday, DPS said more than 105 women have been arrested for allegedly trespassing in five border counties. Women accused of more serious crimes, like smuggling, have been arrested under Operation Lone Star since its inception.

The low number of trespassing arrests may in part be because the state had set up booking centers and two prisons to process and hold men accused of immigration-related crimes, while women were being held at local county jails with little space.

“The significant influx of criminal activity along the border regions strained the ability of impacted counties to incarcerate those charged with state offenses,” Hernandez, with TDCJ, said last week.

Hernandez said the Lopez facility was brought into the Operation Lone Star fold to help incarcerate women, mostly those arrested for trespassing.

Since it is acting as an alternative to a county jail, not a state prison, there are different, often better, minimum standards of care required. Most notably, this means the building housing female defendants must be air conditioned, something notoriously lacking in the majority of Texas prisons.

Court challenges are continuing, however. Defense attorneys have filed repeated challenges to criminal charges based on the discrimination claims, and appeals are pending. The practice of arresting women is still far less common than arresting men, defense attorneys said.

But even when discrimination based on sex is obvious, the appeals court said in June, it doesn't necessarily mean the arrest was unconstitutional. Instead, the 4th Court of Appeals told the Maverick County court to weigh whether the discrimination is justified based on a “narrowly tailored … compelling governmental interest.”

Prosecutors had argued that discrimination against migrant men is justified because of the “emergency situation on Texas' southern border.” The court of appeal's ruling is being appealed to Texas' highest criminal court, the Court of Criminal Appeals.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/07/26/women-arrests-texas-border-operation-lone-star/.

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