Over the last three legislative sessions in New York, some version of the bill “Gender Identity Respect Dignity and Safety Act” has been sponsored by State Senator Julia Salazar, as seen here, here and here.
This week (approximately one year into a two year session), the bill was amended and reintroduced again to the Senate Committee on Crime Victims, Crime and Correction.
In its current incarnation, the bill provides that inmates “shall be placed in a correctional facility or other institution with persons of the gender that most closely aligns with such person’s self-attested gender identity unless the person opts out of such placement.” In an earlier version, this provision in the bill included that prison housing placement would be “presumptively” based on gender identity or trans-identifying status or other self-identifying categories. The deletion of the word “presumptive” does not render this version of the bill any more reasonable or protective of female inmates. Rather, it appears likely it simply reflects that if housing is not made on the objective basis of sex, but on subjective internal feelings (including those who declare themselves “gender nonconforming” or “nonbinary”), it would be impossible for prison authorities to intuit where an inmate should be housed to comply with the law.
Other egregious elements remain in the bill, including that denials cannot be based on the realities of biological sex (including “past or current … chromosomes, genitals, gonads … or hormone function”), or based on sexual orientation, or the “complaints of other incarcerated individuals” (a/k/a women). Additionally, it is prohibited to transfer an inmate out of a “gender-aligned placement as a form of discipline.” This means that a male inmate who verbally harasses female inmates, or engages in voyeurism or exhibitionism directed towards them, cannot be transferred out of the women’s facility in response to this conduct, unless the conduct rises to the level of “current danger of … violence” as described below.
The procedures to deny cross-sex housing permit only two days to make a determination and only two days following that to provide the decision in writing to the inmate, including “an explanation of why the evidence supports a determination that the person presents a current danger of committing gender-based violence against others.” Further, the department is required to “attach all supporting documentation” and notes that “[u]nsubstantiated allegations are not clear and convincing evidence justifying a denial of gender-aligned placement.”
In any legitimate investigation, it would be reasonable to review the criminal history and prior incarceration records and to conduct interviews with former cellmates, law enforcement, and jail or prison officials, including those who have made psychological assessments. After gathering this information (including investigating any allegations not already substantiated), a review and assessment would be made, recommendations would be provided and then a final determination reached. The authorities would then draft the written decision, gather the supporting documentation, potentially redacting names of cooperating individuals, and – given the potential financial liability – obtain legal review. Obviously, all this activity cannot be done in four days, and it appears the intent of the law is to make it impossible to deny cross-sex housing placement.
Internal legal review of decisions to deny cross-sex housing would be necessary before finalizing a determination because the bill incentivizes legal challenges. It provides an avenue to appeal, which includes the availability of “injunctive relief and damages, including reasonable attorney fees.” Again, the bill appears designed to make denials near impossible and costly.
A marked-up version of the bill includes a “Justification” narrative which enthuses that “[s]imilar measures have passed in California and have been implemented as a result of litigation around the country.” The Justification ignores the many horror stories which have resulted from housing men in women’s prisons and jails, including a male inmate in California charged with sexually assaulting multiple women in prison and female inmates in New Jersey who were impregnated following an influx of men into the women’s prison there.
Immediately following his second inauguration, President Trump issued multiple Executive Orders (EO’s) including one on Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. This EO includes a section to “ensure that males are not detained in women’s prisons or housed in women’s detention centers.” Implementation of this EO in federal prisons has been thwarted at the district court level and remains on appeal. (Although there was a reprieve for two female federal inmates who secured a Temporary Restraining Order requiring a federal facility to keep male inmates away from them.)
Despite this EO and despite the Trump victory on the heels of the impactful “Kamala’s Agenda is They/Them – Not you!” ad, New York State pushes ahead to enshrine transgender ideology in the law.
Amanda Stulman is a Senior Researcher and Attorney at the Legal Insurrection Foundation
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