MEMORANDUM AND ORDER RESERVING RULING ON DEFENDANTS' MOTION TO DISMISS AND GRANTING IN PART PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

RICHARD G. STEARNS, District Judge.

Plaintiff Jane Doe is a transgender woman, currently housed in a men's prison operated by the defendants, Massachusetts Department of Correction (DOC), and various state officials named in their official capacity.1 Doe brought this action alleging that the defendants have discriminated against her pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (ADA), and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (RA), and have failed to make reasonable accommodations to her disability, principally by refusing to transfer her to the state women's prison. She also alleges violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The defendants have moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Doe has countered with a Motion for a Preliminary Injunction, seeking various forms of injunctive relief, including transfer to MCI-Framingham.

The court heard oral argument on both motions on February 28, 2018. During those proceedings, the court specifically asked both parties to address two distinct aspects of Doe's ADA claim; first, whether Doe's diagnosis of Gender Dysphoria places her condition within the ADA's exclusion of "transvestism, transsexualism, pedophilia, gender identity disorders not resulting from physical impairments, or other sexual behavioral disorders" from the statute's definition of "disability," 42 U.S.C. § 12211(b)(1); and second, assuming that it does, whether the statutory exclusion can withstand constitutional scrutiny. The DOC, for understandable reasons, declined to expressly advocate for the statute's constitutionality, deferring to the Attorney General of the United States. The court, agreeing with the parties that the constitutional question is substantial, on February 28, 2018, certified the question to the Attorney General pursuant to Fed. R. Civ. P. 5.1(b) and 28 U.S.C. § 2403. See Dkt # 57. Under the statute, the Attorney General has 60 days to decide whether he wishes to intervene. Given the overlapping constitutional issues inherent in the plaintiff's ADA, RA, and Fourteenth Amendment claims — and the DOC's Motion to Dismiss those counts — the court will defer a ruling on the Motion to Dismiss until the Attorney General makes the decision whether or not to intervene. For that reason, the court RESERVES its ruling on DOC's Motion to Dismiss.

Pending an adjudication on the merits, and mindful of Doe's claim that "irreparable injury will be likely absent an injunction," Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010), the court turns to Doe's Motion for a Preliminary Injunction.2 The court concludes that Doe's Complaint contains sufficient factual allegations that, taken as true, support the granting of provisional relief, pursuant to the equitable powers of the court, prior to a full adjudication on the merits and the possible exercise by the Attorney General of his right to be heard. The court believes that until the case is fully ripe it is in the interests of all parties to preserve the status quo and to insure that Doe has the continuing benefit of the accommodations DOC has already provided. The court is also mindful that, particularly when exercising jurisdiction over a claim for constitutional violations in a state prison system, the traditional discretion accorded to state prison administrators and principles of federalism caution that "[p]reliminary injunctive relief must be narrowly drawn, [and] extend no further than necessary to correct the harm the court finds requires preliminary relief," 18 U.S.C. § 3626(a)(2), and, moreover, courts must give "substantial weight to any adverse impact on public safety or the operation of the criminal justice system." Id.

For these reasons, the court ALLOWS IN PART Doe's Motion for a Preliminary Injunction, without prejudice to renew her motion for additional injunctive relief, including those forms of relief not secured by this Order, as conditions warrant. Specifically, the court orders the following:

The court concludes that consideration of further relief — in particular a transfer to MCI-Framingham — is premature and should await the resolution of the constitutional issue. The court also declines Jane Doe's request to impose new training requirements on DOC personnel as both exceeding its authority and as unduly burdensome on DOC. However, DOC is encouraged to take further reasonable steps to meet Jane Doe's requests for safe accommodations, consistent with DOC's other obligations under internal department policies and applicable state and federal law.

SO ORDERED.