During a confirmation hearing on Wednesday, Senator Ted Cruz grilled a Biden judicial nominee who approved the transfer of a 6’2″ transgender-identifying male child rapist to a women’s prison.

The Biden administration nominated Judge Sarah Netburn to join the bench on the Southern District of New York. In August 2022, Netburn allowed male sex offender July Justine Shelby to be sent to FMC Carswell, a female federal correctional facility in Fort Worth, Texas. Her order overturned the federal Bureau of Prisons’ rejection of his request for female housing.

Born William McClain, Shelby pleaded guilty in 1994 to child molestation of a nine-year-old boy and to rape of a seventeen-year-old girl. After his release 18 years later, Shelby violated parole by using the internet in his apartment, landing himself in prison for another six years until 2015. After being released again, Shelby underwent hormone therapy to begin transitioning to a female.

In 2017, however, the male felon pleaded guilty to distribution of child pornography, receiving a mandatory minimum term of incarceration of 180 months, followed by a ten-year term of supervised release that included participation in sex offender treatment. Shelby served time between a few men’s facilities, where he said he was groped and harassed repeatedly. He asked to be relocated to a women’s facility.

Given Shelby’s record of abuse, the BOP claimed “that permitting Petitioner to live among women will be traumatizing and possibly dangerous to them,” Netburn wrote in her opinion.

“This concern is overblown,” she said.

Netburn argued that the defendant’s gender dysphoria and the BOP’s refusal to move her to a women’s facility caused him mental and physical distress and violated his Eighth Amendment rights. The court concluded that the BOP acted with “deliberate indifference” to Shelby’s “serious medical needs” in denying his transfer requests to a women’s facility. Shelby for years was eager to begin genital reassignment surgery, specifically penis removal, according to court documents.

The risk of Shelby sexually assaulting a vulnerable female prisoner had also been mitigated, Netburn said, because he had not been violent or sexually assaulted anyone while in custody for nearly 30 years. Netburn dismissed the BOP’s “hypothetical” concern that Shelby could reoffend in a female facility, noting that BOP had other measures to discipline inappropriate conduct short of excluding him from female housing.

Using Shelby’s preferred pronouns, Netburn wrote in her order: “Probably most significantly, Petitioner is a different person than she was in 1993. She is sober, under consistent mental health counseling and medication management, and has maximized and stabilized her hormones within the target ranges for transgender women. A theoretical risk of sexual assault by Petitioner, without more, cannot support the BOP’s position.”

“The other women in that prison,” Cruz angrily asked Netburn on Wednesday, “do they have any rights?”

“Of course,” Netburn replied.

“Do they have the right not to have a 6’2″ man who is a repeat serial rapist put in as their cell mate?” Cruz asked.

Netburn assured she had reviewed the specific facts of the case before reaching her decision, adding that “every incarcerated person has the right to be safe in their space.”

National Review has previously reported multiple cases of transgender-identifying male inmates sexually assaulting female residents at Washington state’s formerly only women’s prison.