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Incarceration Policies Related to Transgender, Non-Binary and Intersex Inmates

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Mark Kling, Linda-Marie Sundstrom & James Curtis
May 13, 2022

In April 2022, it was reported that two incarcerated women at a New Jersey prison were impregnated by a transgender woman housed in their same facility. This news story led people to ask questions about the policies surrounding who is being housed in women’s prisons. Since transgender, non-binary and intersex inmates may be singled out for violent attacks by other incarcerated inmates, prisons are required to make every effort to protect this population. But can we narrowly address the safety of one population, or does it need to be part of a larger discussion about equity and safety of prisons in general?

PREA

The Federal Prison Rape Elimination Act (PREA) expressly prohibits housing decisions based solely on an incarcerated person’s external genitalia. PREA standards require correctional agencies to consider (on a case-by-case basis) incarcerated people’s requests to be placed in an institution consistent with their gender identity when different from their sex assigned at birth. 

Some county jails (generally, short-term incarceration) have developed specific areas to safely house transgender inmates. However, that option is not available for state prisons (generally, longer-term incarceration). Creating a separate housing area based on gender identity is not permitted for longer-term prisons under PREA. The Act states that “The agency shall not place lesbian, gay, bisexual, transgender or intersex inmates in dedicated facilities, units or wings solely on the basis of such identification or status …” As a result, they must be assigned to either a men’s or women’s prison. Individual states have adopted additional internal policies and legislation intended to further protect their safety.

New York

In New York, inmates who have a gender identity that differs from their assigned sex at birth have the right to request placement “with persons of the gender that is consistent with such person’s gender identity.” Transgender inmates must “have access to department-issued undergarments and clothing that are consistent with the individuals’ gender identity.” Transgender inmates also have the right to obtain “gender affirming medical and mental health care.” No corrections personnel “shall misgender any individual in the care or custody of the department by intentionally referring to someone . . . using a word, pronoun or form of address that does not correctly reflect the gender with which they identify.”

California

In 2021, California enacted SB 132 which states:

  • Corrections personnel must ask each inmate:
    • To specify their gender identity (male, female, non-binary);
    • Whether they identify as transgender, non-binary or intersex; and
    • Their preferred gender pronoun.
  • Corrections personnel must house a person who identifies as transgender, non-binary or intersex in a correctional facility designated for men or women based on the preference of the inmate.
  • For safety purposes, transgender, non-binary and intersex inmates may be granted:
    • Single-cell status,
    • Housing with another incarcerated person of their choice, or
    • Removal of people who pose a safety threat.

CDCR Data

The California Department of Corrections and Rehabilitation (CDCR) does not determine an incarcerated person’s gender identity. Every incarcerated person self-identifies. They do not need to be taking hormones or considering gender reassignment procedures in order to qualify for alternate housing.

As of April 17, 2022:

  • There were 1,503 incarcerated people identified as transgender, non-binary or intersex in California prisons.  
  • Of those, 311 inmates petitioned to be moved out of male institutions and to be transferred to female institutions. Of the finalized decisions to date:
    • 54 percent of the requests were approved for transfer,
    • 14 percent were denied for unspecific reasons, and
    • 32 percent withdrew their petitions because they changed their minds. 
  • Additionally, 10 biological females (who are currently housed in female institutions) have requested to be housed in a male institution. These requests are currently pending review.

Opposition from Women’s Groups

In November of 2021, the Women’s Liberation Front, filed a lawsuit in federal court alleging that California’s Senate Bill 132 is unconstitutional and creates an unsafe environment for biological women who are incarcerated. However, the CDCR’s reporting mechanisms do not track assaults by gender identity, so the number of actual attacks remains unreported. 

Moving Forward

We need to find a way to ensure our entire prison system achieves its intended objectives of both a safe and rehabilitative environment. As we formulate and implement policy solutions to help specific groups, we also need to consider impacts (intended or unintended) on all those who are incarcerated. Developing narrow policy solutions to increase safety of one group may (inadvertently) negatively impact others. Nelson Mandela is quoted saying, “No one truly knows a nation until one has been inside its jails.” Our nation must demonstrate our ability to adapt and evolve in a manner that ensures the equity and safety of all those incarcerated in our corrections system.


Author: Dr. Mark Kling has been in law enforcement for 34 years, 13 as police chief. He has taught both Public Administration and Criminal Justice courses for the past 20 years. He is currently the Criminal Justice Program Director for California Baptist University and came out of retirement to transition the Rialto Police Department to new innovative executive leadership. Email: [email protected] / [email protected]

Author: Dr. Linda-Marie Sundstrom is a former Fulbright Scholar who taught Public Administration in Ukraine at a university under the Office of the Ukrainian President.  She worked for 20 years in local government and has taught in Master of Public Administration Programs for nearly two decades.  She is currently the MPA Program Director for California Baptist University in Southern California. Email: [email protected]

Author: James Curtis is a former California State Senate Fellowship and California Prosecutor. He has worked on local and state government policy, and worked with community based nonprofit organizations. After practicing law, he went on to host national television shows for Court TV, KingWorld CBS, and E! Entertainment.  He currently teaches in the MPA Program at California Baptist University in Southern California. Email: [email protected]

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