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A00709 Summary:

BILL NOA00709A
 
SAME ASSAME AS S02860
 
SPONSORRozic
 
COSPNSRGallagher, Gonzalez-Rojas, Lavine, Simon, Epstein, Bronson, Weprin, Kelles, Seawright, Jackson, Burdick, Glick, Forrest, Lupardo, Fahy, Cruz, Gibbs, Bores, Rosenthal L, Ardila, Simone, Raga, Davila, Reyes, Shimsky, De Los Santos, Shrestha
 
MLTSPNSR
 
Amd §§137, 500-b & 500-k, add §72-d, Cor L
 
Enacts the "gender identity respect, dignity and safety act"; relates to the treatment and placement of incarcerated individuals based upon gender identity; requires that incarcerated individuals in state and local correctional facilities who have a gender identity different from their assigned sex at birth be addressed and have access to commissary items, clothing and other materials that are consistent with the person's gender identity; establishes that incarcerated individuals shall be presumptively placed in a correctional facility 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.
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A00709 Actions:

BILL NOA00709A
 
01/11/2023referred to correction
03/22/2023amend and recommit to correction
03/22/2023print number 709a
01/03/2024referred to correction
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A00709 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         709--A
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2023
                                       ___________
 
        Introduced  by M. of A. ROZIC, GALLAGHER, GONZALEZ-ROJAS, LAVINE, SIMON,
          EPSTEIN, BRONSON, WEPRIN, KELLES, SEAWRIGHT, JACKSON, BURDICK,  GLICK,
          FORREST,  LUPARDO,  FAHY, CRUZ, GIBBS, BORES -- read once and referred
          to the Committee on Correction -- committee discharged, bill  amended,
          ordered reprinted as amended and recommitted to said committee

        AN  ACT to amend the correction law, in relation to enacting the "gender
          identity respect, dignity and safety act"
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Short  title. This act shall be known and may be cited as
     2  the "gender identity respect, dignity and safety act".
     3    § 2. Section 137 of the correction law is  amended  by  adding  a  new
     4  subdivision 7 to read as follows:
     5    7. (a) Any incarcerated individual in a correctional facility or other
     6  institution  who  has a gender identity that differs from their assigned
     7  sex at birth, who has a diagnosis of gender dysphoria, who has  a  vari-
     8  ation  in their sex characteristics, or who self-identifies as transgen-
     9  der, gender nonconforming, nonbinary, or intersex shall:
    10    (i) be addressed by correctional officers and staff in a  manner  that
    11  most  closely  aligns  with such person's gender identity, including the
    12  name and pronouns specified by that person.  If a person states that, in
    13  order to most closely align with their gender identity, they use a  name
    14  that  is different from the name listed on their government-issued iden-
    15  tification, they shall be addressed and referred to by  their  requested
    16  name;
    17    (ii)  have  access  to  commissary items, clothing, personal property,
    18  programming and educational materials that most closely align with  such
    19  person's gender identity;
    20    (iii) have the right to be searched by a correctional officer or staff
    21  member  of  the  gender  most  closely aligned with such person's gender
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00512-03-3

        A. 709--A                           2
 
     1  identity, unless the incarcerated individual requests otherwise or under
     2  exigent circumstances;
     3    (iv)  have  the  right to access all necessary and appropriate medical
     4  and mental health care, including routine and  preventive  medical  care
     5  related  to  their sex characteristics, and affirming medical and mental
     6  health care as related to gender dysphoria or gender affirmation,  which
     7  includes  access  to  items that are used by individuals to affirm their
     8  gender identity, including those items  associated  with  necessary  and
     9  appropriate care after gender-affirming surgery;
    10    (v)  have  the  right  not to be subjected to medical or mental health
    11  treatments or interventions which they do not want or to which  they  do
    12  not  provide  informed  consent,  including  but not limited to surgical
    13  interventions to  change  their  sex  characteristics  such  as  genital
    14  surgeries  and  sterilizations,  and  counseling  that  pathologizes  or
    15  attempts to change their sexual orientation or gender identity; and
    16    (vi) have the right to maintain  the  confidentiality  of  records  or
    17  portions  of  records  related  to their incarceration that would reveal
    18  their sex characteristics or their  transgender,  gender  nonconforming,
    19  nonbinary, or intersex status, or that would otherwise reveal that their
    20  gender identity differs from their assigned sex at birth, that they have
    21  a  diagnosis of gender dysphoria, or that they have an intersex trait or
    22  variation in their sex characteristics.  This provision does not prevent
    23  an incarcerated individual from consenting to the release of such  mate-
    24  rial  nor does it prevent the release of aggregate data, reports created
    25  pursuant to subdivision seven of section seventy-two-d and paragraph (g)
    26  of subdivision fourteen of section five hundred-b of  this  chapter,  or
    27  records  that have otherwise been de-identified and would not reveal the
    28  identity of a transgender, gender nonconforming, nonbinary, or  intersex
    29  person without their consent.
    30    (b)  The  department  is  prohibited  from  requiring documentation to
    31  confirm a person's gender identity,  sex  characteristics,  or  intersex
    32  status.
    33    (c)  All  people  shall  receive  notice  in writing in a language and
    34  manner understandable to them about the requirements of this subdivision
    35  upon their admission to a correctional facility or other institution.
    36    (d) The department shall provide annual training on provisions of this
    37  subdivision to all personnel.
    38    (e) A violation of this subdivision is a violation of section  forty-c
    39  of the civil rights law and section two hundred ninety-six of the execu-
    40  tive  law.  Any individual aggrieved under this subdivision may initiate
    41  proceedings in a court of competent jurisdiction  or  in  the  New  York
    42  state  division  of  human rights seeking injunctive relief and damages,
    43  including reasonable attorney's fees.
    44    § 3. The correction law is amended by adding a  new  section  72-d  to
    45  read as follows:
    46    §  72-d. Placement of incarcerated individuals based on gender identi-
    47  ty. 1. An incarcerated individual who has a gender identity that differs
    48  from their assigned sex at birth, who has a diagnosis of gender  dyspho-
    49  ria, who has a variation in their sex characteristics, or who self-iden-
    50  tifies  as  transgender,  gender  nonconforming,  nonbinary, or intersex
    51  pursuant to subdivision seven of section  one  hundred  thirty-seven  of
    52  this chapter shall be presumptively placed in a correctional facility or
    53  other  institution  with  persons of the gender that most closely aligns
    54  with such person's self-attested gender identity unless the person  opts
    55  out  of  such  placement.    Placement shall not be conditioned upon the
    56  incarcerated individual's history of, consent to, intention to seek,  or

        A. 709--A                           3
 
     1  refusal  to  undergo  any  treatment or intervention regarding their sex
     2  characteristics  or  gender  identity,  including  those   interventions
     3  described  in  subparagraph (v) of paragraph (a) of subdivision seven of
     4  section one hundred thirty-seven of this chapter.
     5    2.  The  incarcerated  individual  shall  be  permitted  to leave such
     6  presumptive placement and transfer to a facility housing individuals  of
     7  their  assigned  sex at birth at any time. Any such person who has opted
     8  out of such presumptive placement or who leaves such placement may again
     9  request placement in a correctional facility with persons of the  gender
    10  that most closely aligns with their self-attested gender identity at any
    11  time.
    12    3.  Such  presumptive  placement may be overcome by a determination in
    13  writing by the commissioner or the commissioner's designee that there is
    14  clear and convincing evidence that such person presents a current danger
    15  of committing gender-based violence against others. A denial of presump-
    16  tive placement shall not be based on any discriminatory reasons, includ-
    17  ing but not limited to (a) the  past  or  current  sex  characteristics,
    18  including  chromosomes,  genitals,  gonads,  other  internal or external
    19  reproductive anatomy, secondary sex characteristics, or hormone function
    20  of the person whose housing placement is at issue, (b) the sexual orien-
    21  tation of the person whose  housing  placement  is  at  issue,  (c)  the
    22  complaints  of  other  incarcerated  individuals  who  do not wish to be
    23  housed with a non-cisgender or intersex  person  due  to  that  person's
    24  gender  identity  or  sex characteristics, or (d) a factor present among
    25  other people in the presumptive housing unit or facility.   After  being
    26  notified  that a transgender, gender nonconforming, nonbinary, or inter-
    27  sex person is seeking presumptive placement, the department  shall  have
    28  two days to make a determination pursuant to this subdivision.  A denial
    29  of  presumptive  placement  shall be provided in writing to the affected
    30  person within two days of the department's  decision.    The  department
    31  shall  include  in  its  written  decision a description of all evidence
    32  supporting the department's decision  and  an  explanation  of  why  the
    33  evidence  supports  a  determination  that the person presents a current
    34  danger of committing gender-based violence against others.  The  depart-
    35  ment  shall attach all supporting documentation to the written decision.
    36  The supporting documentation may be redacted as necessary to protect any
    37  person's privacy or safety. Unsubstantiated allegations  are  not  clear
    38  and  convincing evidence justifying a denial of presumptive placement or
    39  transfer out of presumptive placement.
    40    4. The department's decision pursuant to  subdivision  three  of  this
    41  section is final and shall not be grievable.
    42    5. An incarcerated individual denied presumptive placement pursuant to
    43  subdivision  three  of this section may re-apply for presumptive housing
    44  at any time when there is information that was not previously  submitted
    45  to  the  commissioner  or  the  commissioner's designee or when previous
    46  information was improperly weighed by the commissioner  or  the  commis-
    47  sioner's  designee.  Such  application  shall  be subject to subdivision
    48  three of this section.
    49    6. The department is prohibited from denying a  presumptive  placement
    50  or  transferring  a  person  out of a presumptive placement as a form of
    51  discipline.
    52    7. A transgender, gender nonconforming, nonbinary, or intersex  incar-
    53  cerated  individual  experiencing  harassment,  violence  or  threats of
    54  violence due to their gender identity or sex characteristics  shall  not
    55  be  placed in involuntary protective custody for more than fourteen days
    56  as a result of such harassment, violence or  threats  of  violence,  and

        A. 709--A                           4
 
     1  shall  be  housed in a least-restrictive setting where they will be safe
     2  from such behavior.
     3    8. All people shall receive notice in writing in a language and manner
     4  understandable to them about the requirements of this section upon their
     5  admission  to a correctional facility or other institution.  The depart-
     6  ment shall provide annual training on provisions of this section to  all
     7  correctional  personnel who are involved in the supervision or placement
     8  of incarcerated individuals.
     9    9. The department shall report annually to the governor, the temporary
    10  president of the senate, the minority leader of the senate, the  speaker
    11  of the assembly, the minority leader of the assembly, the chairperson of
    12  the  senate crime victims, crime and correction committee and the chair-
    13  person of the assembly correction committee on the number  of  transgen-
    14  der,  gender nonconforming, nonbinary, or intersex incarcerated individ-
    15  uals who (a)  were  denied  presumptive  placement  in  accordance  with
    16  subdivision three of this section; (b) voluntarily opted out of presump-
    17  tive  placement  in accordance with subdivision one of this section; and
    18  (c) were kept in involuntary protective custody for longer than fourteen
    19  days. Reports required by this section shall be posted  on  the  website
    20  maintained by the department. Reports may include de-identified individ-
    21  ual information in the aggregate, but shall not include personally iden-
    22  tifiable information.
    23    10.  A  violation of this section is a violation of section forty-c of
    24  the civil rights law and section two hundred ninety-six of the executive
    25  law.    Any  individual  aggrieved  under  this  section  may   initiate
    26  proceedings  in  a  court  of  competent jurisdiction or in the New York
    27  state division of human rights seeking injunctive  relief  and  damages,
    28  including reasonable attorney's fees.
    29    §  4.  Section  500-b of the correction law is amended by adding a new
    30  subdivision 14 to read as follows:
    31    14. (a) Notwithstanding the provisions of this section, any  incarcer-
    32  ated  individual  determined  to  have  a gender identity different from
    33  their assigned sex at birth, who has a diagnosis  of  gender  dysphoria,
    34  who has a variation in their sex characteristics, or who self-identifies
    35  as transgender, gender nonconforming, nonbinary, or intersex pursuant to
    36  subdivision  seven  of  section one hundred thirty-seven of this chapter
    37  shall be presumptively placed in a facility housing unit with  incarcer-
    38  ated  individuals  of the gender most closely aligned with such person's
    39  self-attested gender identity unless the person opts out of such  place-
    40  ment.  Placement shall not be conditioned upon the incarcerated individ-
    41  ual's  history  of, consent to, intention to seek, or refusal to undergo
    42  any treatment or intervention regarding  their  sex  characteristics  or
    43  gender identity, including those interventions described in subparagraph
    44  (v)  of  paragraph (a) of subdivision seven of section one hundred thir-
    45  ty-seven of this chapter.  The incarcerated individual shall be  permit-
    46  ted  to  leave such placement and transfer to a unit housing individuals
    47  of their assigned sex at birth at any time.  Any  such  person  who  has
    48  opted out of such presumptive placement or who leaves such placement may
    49  again  request  placement  in  a housing unit with persons of the gender
    50  that most closely aligns with their self-attested gender identity at any
    51  time. Such presumptive placement may be overcome by a  determination  in
    52  writing by the chief administrative officer or their designee that there
    53  is  clear  and  convincing  evidence that such person presents a current
    54  danger of committing gender-based violence against others. A  denial  of
    55  presumptive  placement shall not be based on any discriminatory reasons,
    56  including but not limited to (1) the  past  or  current  sex  character-

        A. 709--A                           5
 
     1  istics,  including  chromosomes,  genitals,  gonads,  other  internal or
     2  external reproductive anatomy, secondary sex characteristics, or hormone
     3  function of the person whose housing placement  is  at  issue,  (2)  the
     4  sexual  orientation  of  the person whose housing placement is at issue,
     5  (3) the complaints of other incarcerated individuals who do not wish  to
     6  be  housed  with a non-cisgender or intersex person due to that person's
     7  gender identity, or sex characteristics, or (4) a factor  present  among
     8  other  people  in the presumptive housing unit or facility.  After being
     9  notified that a transgender, gender nonconforming, nonbinary, or  inter-
    10  sex  person  is  seeking presumptive placement, the chief administrative
    11  officer or their designee shall have two days to  make  a  determination
    12  pursuant  to  this subdivision.  A denial of presumptive placement shall
    13  be provided in writing to the affected person within  two  days  of  the
    14  decision  by  the  chief  administrative officer or their designee.  The
    15  chief administrative officer or their designee shall  include  in  their
    16  written  decision  a description of all evidence supporting the decision
    17  and an explanation of why the evidence supports a determination that the
    18  person presents a current danger  of  committing  gender-based  violence
    19  against others. The chief administrative officer or their designee shall
    20  attach  all  supporting  documentation  to  the  written  decision.  The
    21  supporting documentation may be redacted as  necessary  to  protect  any
    22  person's  privacy  or  safety. Unsubstantiated allegations are not clear
    23  and convincing evidence justifying a denial of presumptive placement  or
    24  a transfer out of presumptive placement.
    25    (b)  The  chief  administrative officer's or their designee's decision
    26  pursuant to paragraph (a) of this subdivision is final and  not  grieva-
    27  ble.
    28    (c)  An  incarcerated individual denied presumptive placement pursuant
    29  to paragraph (a) of this subdivision may re-apply for presumptive  hous-
    30  ing  at  any  time  when  there  is  information that was not previously
    31  submitted to the chief administrative officer or their designee or  when
    32  previous  information was improperly weighed by the chief administrative
    33  officer or their designee. Such application is subject to paragraph  (a)
    34  of this subdivision.
    35    (d)  The  chief administrative officer or their designee is prohibited
    36  from denying a presumptive placement or transferring a person out  of  a
    37  presumptive placement as a form of discipline.
    38    (e)  A  transgender,  gender  nonconforming, or nonbinary incarcerated
    39  individual experiencing harassment, violence or threats of violence  due
    40  to  their  gender identity or sex characteristics shall not be placed in
    41  involuntary protective custody for more than fourteen days as  a  result
    42  of such harassment, violence or threats of violence, and shall be housed
    43  in  a least-restrictive setting where they will be safe from such behav-
    44  ior.
    45    (f) All people shall receive notice  in  writing  in  a  language  and
    46  manner understandable to them about the requirements of this subdivision
    47  upon their admission to a local correctional facility. The sheriff shall
    48  provide annual training on provisions of this subdivision to all correc-
    49  tional  personnel  who  are  involved in the supervision or placement of
    50  incarcerated individuals.
    51    (g) The sheriff of each county shall report,  in  a  form  and  manner
    52  prescribed  by the commission, the number of transgender, gender noncon-
    53  forming, nonbinary, or intersex incarcerated individuals  who  (1)  were
    54  denied  presumptive  placement  in accordance with paragraph (a) of this
    55  subdivision; (2) voluntarily  opted  out  of  presumptive  placement  in
    56  accordance  with paragraph (a) of this subdivision; and (3) were kept in

        A. 709--A                           6

     1  involuntary protective  custody  for  longer  than  fourteen  days.  The
     2  commission  shall include such information in its annual report pursuant
     3  to section forty-five of this chapter,  but  shall  exclude  identifying
     4  information  from  such report. Reports required by this provision shall
     5  be posted on the website maintained by the commission.
     6    (h) A violation of this subdivision is a violation of section  forty-c
     7  of the civil rights law and section two hundred ninety-six of the execu-
     8  tive  law.  Any individual aggrieved under this subdivision may initiate
     9  proceedings in a court of competent jurisdiction  or  in  the  New  York
    10  state  division  of  human rights seeking injunctive relief and damages,
    11  including reasonable attorney's fees.
    12    § 5. Section 500-b of the correction law is amended by  adding  a  new
    13  subdivision 15 to read as follows:
    14    15.  Pursuant  to its authority under section forty-five of this chap-
    15  ter, the commission in collaboration with the department  shall  promul-
    16  gate rules and regulations to ensure that local correctional authorities
    17  timely  notify  the department when a transgender, gender nonconforming,
    18  nonbinary, or intersex person is being transferred into the  custody  of
    19  the  department.  The  rules and regulations shall ensure the department
    20  makes necessary arrangements to ensure  gender-aligned  housing,  unless
    21  the  impacted  individual  opts  out  of  such housing, immediately upon
    22  transfer to department custody.
    23    § 6. Subdivision 1 of 500-k  of  the  correction  law,  as  separately
    24  amended  by  chapters 93 and 322 of the laws of 2021, is amended to read
    25  as follows:
    26    1. Subdivisions five [and], six and seven of section one hundred thir-
    27  ty-seven of this chapter, except paragraphs (d) and (e)  of  subdivision
    28  six  of such section, relating to the treatment of incarcerated individ-
    29  uals in state correctional facilities  are  applicable  to  incarcerated
    30  individuals confined in county jails; except that the report required by
    31  paragraph  (f)  of  subdivision  six  of such section shall be made to a
    32  person designated to receive such report in the rules and regulations of
    33  the state commission of correction, or in any county or city where there
    34  is a department of correction, to the head of such department.
    35    § 7. This act shall take effect immediately; provided,  however,  that
    36  the  amendments  to section 500-b of the correction law made by sections
    37  four and five of this act shall not affect the repeal  of  such  section
    38  and shall be deemed repealed therewith.
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