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Texas Is Jailing Migrant Women Based On Obstruction Barrier

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.”

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