Relates to the treatment and placement of incarcerated people based upon gender identity; requires that incarcerated people in state and local correctional facilities who have a gender identity different from the person's 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; and establishes that incarcerated people shall be presumptively placed in a correctional facility with persons of the gender that most closely aligns with such person's gender identity unless the person opts out of such placement, such person is free to change their mind and switch at any time.
STATE OF NEW YORK
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2809
2021-2022 Regular Sessions
IN SENATE
January 25, 2021
___________
Introduced by Sens. SEPULVEDA, BIAGGI, HOYLMAN, JACKSON, MYRIE, RAMOS --
read twice and ordered printed, and when printed to be committed to
the Committee on Crime Victims, Crime and Correction
AN ACT to amend the correction law, in relation to the treatment and
placement of incarcerated people based upon gender identity
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 137 of the correction law is amended by adding a
2 new subdivision 7 to read as follows:
3 7. Any incarcerated person in a correctional facility who has a gender
4 identity that differs from his or her assigned sex at birth or has a
5 diagnosis of gender dysphoria, as set forth in the most recent edition
6 of the American Psychiatric Association's "Diagnostic and Statistical
7 Manual of Mental Disorders", or who self-identifies as transgender or
8 gender nonconforming shall:
9 (a) be addressed by correctional officers and staff in a manner that
10 most closely aligns with such person's gender identity;
11 (b) have access to commissary items, clothing, personal property,
12 programming and educational materials that most closely align with such
13 person's gender identity;
14 (c) have the right to be searched by a correctional officer or staff
15 member of the gender most closely aligned with such person's gender
16 identity, unless the incarcerated person requests otherwise or under
17 exigent circumstances; and
18 (d) have the right to medical and mental health care as needed and as
19 appropriate for his or her gender identity.
20 § 2. The correction law is amended by adding a new section 72-c to
21 read as follows:
22 § 72-c. Placement of inmates based on gender identity. 1. An incarcer-
23 ated person who has a gender identity that differs from his or her
24 assigned sex at birth or who has a diagnosis of gender dysphoria or who
25 self-identifies as transgender or gender nonconforming pursuant to
26 subdivision seven of section one hundred thirty-seven of this chapter
27 shall be presumptively placed in a correctional facility with persons of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03291-01-1
S. 2809 2
1 the gender that most closely aligns with such person's gender identity
2 unless the person opts out of such placement. The incarcerated person
3 shall be permitted to leave such placement and transfer to a facility
4 housing individuals of his or her assigned sex at birth at any time. Any
5 such person who has opted out of such presumptive placement or who
6 leaves such placement may again request placement in a correctional
7 facility with persons of the gender that most closely aligns with his or
8 her gender identity at any time. Such presumptive placement may be
9 overcome by a determination in writing by the commissioner or the
10 commissioner's designee that there is clear and convincing evidence that
11 such person presents a current danger of committing gender-based
12 violence against others. In making such a determination, the commission-
13 er or his or her designee shall further consider whether such person can
14 be safely housed in another facility or housing unit that most closely
15 aligns with the person's gender identity.
16 2. A transgender incarcerated person experiencing harassment, violence
17 or threats of violence due to his or her gender identity shall not be
18 placed in protective custody for more than thirty days as a result of
19 such harassment, violence or threats of violence, and must be housed in
20 a least-restrictive setting where he or she will be safe from such
21 behavior.
22 § 3. Section 500-b of the correction law is amended by adding a new
23 subdivision 14 to read as follows:
24 14. 1. Notwithstanding the provisions of this section, any incarcerat-
25 ed person determined to have a gender identity different from his or her
26 assigned sex at birth or who has a diagnosis of gender dysphoria or who
27 is self-identified as transgender or gender nonconforming pursuant to
28 subdivision seven of section one hundred thirty-seven of this chapter
29 shall be presumptively placed in a facility housing unit with incarcer-
30 ated individuals of the gender most closely aligned with such person's
31 gender identity. Such presumptive placement may be overcome by a written
32 determination by the chief administrative officer, or the chief adminis-
33 trative officer's designee, that the placement would present significant
34 safety, management or security problems.
35 2. A transgender incarcerated individual experiencing harassment,
36 violence or threats of violence due to his or her gender identity shall
37 not be placed in protective custody for more than thirty days as a
38 result of such harassment, violence or threats of violence, and must be
39 housed in a least-restrictive setting where he or she will be safe from
40 such behavior.
41 § 4. Section 500-k of the correction law, as amended by chapter 2 of
42 the laws of 2008, is amended to read as follows:
43 § 500-k. Treatment of inmates. Subdivisions five [and], six and seven
44 of section one hundred thirty-seven of this chapter, except paragraphs
45 (d) and (e) of subdivision six of such section, relating to the treat-
46 ment of inmates in state correctional facilities are applicable to
47 inmates confined in county jails; except that the report required by
48 paragraph (f) of subdivision six of such section shall be made to a
49 person designated to receive such report in the rules and regulations of
50 the state commission of correction, or in any county or city where there
51 is a department of correction, to the head of such department.
52 § 5. This act shall take effect immediately; provided, however, that
53 the amendments to section 500-b of the correction law made by section
54 three of this act shall not affect the repeal of such section and shall
55 be deemed repealed therewith.