Bill Text: NY S02809 | 2021-2022 | General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Introduced - Dead) 2021-03-30 - RECOMMIT, ENACTING CLAUSE STRICKEN [S02809 Detail]

Download: New_York-2021-S02809-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          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.