Bill Text: NY S02860 | 2023-2024 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 19-0)
Status: (Introduced) 2024-01-03 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S02860 Detail]
Download: New_York-2023-S02860-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2860 2023-2024 Regular Sessions IN SENATE January 25, 2023 ___________ Introduced by Sens. SALAZAR, BRISPORT, BROUK, HOYLMAN-SIGAL, JACKSON, MYRIE, RIVERA, SEPULVEDA, SKOUFIS -- 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 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 22 identity, unless the incarcerated individual requests otherwise or under 23 exigent circumstances; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00512-02-3S. 2860 2 1 (iv) have the right to access all necessary and appropriate medical 2 and mental health care, including routine and preventive medical care 3 related to their sex characteristics, and affirming medical and mental 4 health care as related to gender dysphoria or gender affirmation, which 5 includes access to items that are used by individuals to affirm their 6 gender identity, including those items associated with necessary and 7 appropriate care after gender-affirming surgery; 8 (v) have the right not to be subjected to medical or mental health 9 treatments or interventions which they do not want or to which they do 10 not provide informed consent, including but not limited to surgical 11 interventions to change their sex characteristics such as genital 12 surgeries and sterilizations, and counseling that pathologizes or 13 attempts to change their sexual orientation or gender identity; and 14 (vi) have the right to maintain the confidentiality of records or 15 portions of records related to their incarceration that would reveal 16 their sex characteristics or their transgender, gender nonconforming, 17 nonbinary, or intersex status, or that would otherwise reveal that their 18 gender identity differs from their assigned sex at birth, that they have 19 a diagnosis of gender dysphoria, or that they have an intersex trait or 20 variation in their sex characteristics. This provision does not prevent 21 an incarcerated individual from consenting to the release of such mate- 22 rial nor does it prevent the release of aggregate data, reports created 23 pursuant to subdivision seven of section seventy-two-d and paragraph (g) 24 of subdivision fourteen of section five hundred-b of this chapter, or 25 records that have otherwise been de-identified and would not reveal the 26 identity of a transgender, gender nonconforming, nonbinary, or intersex 27 person without their consent. 28 (b) The department is prohibited from requiring documentation to 29 confirm a person's gender identity, sex characteristics, or intersex 30 status. 31 (c) All people shall receive notice in writing in a language and 32 manner understandable to them about the requirements of this subdivision 33 upon their admission to a correctional facility or other institution. 34 (d) The department shall provide annual training on provisions of this 35 subdivision to all personnel. 36 (e) A violation of this subdivision is a violation of section forty-c 37 of the civil rights law and section two hundred ninety-six of the execu- 38 tive law. Any individual aggrieved under this subdivision may initiate 39 proceedings in a court of competent jurisdiction or in the New York 40 state division of human rights seeking injunctive relief and damages, 41 including reasonable attorney's fees. 42 § 3. The correction law is amended by adding a new section 72-d to 43 read as follows: 44 § 72-d. Placement of incarcerated individuals based on gender identi- 45 ty. 1. An incarcerated individual who has a gender identity that differs 46 from their assigned sex at birth, who has a diagnosis of gender dyspho- 47 ria, who has a variation in their sex characteristics, or who self-iden- 48 tifies as transgender, gender nonconforming, nonbinary, or intersex 49 pursuant to subdivision seven of section one hundred thirty-seven of 50 this chapter shall be presumptively placed in a correctional facility or 51 other institution with persons of the gender that most closely aligns 52 with such person's self-attested gender identity unless the person opts 53 out of such placement. Placement shall not be conditioned upon the 54 incarcerated individual's history of, consent to, intention to seek, or 55 refusal to undergo any treatment or intervention regarding their sex 56 characteristics or gender identity, including those interventionsS. 2860 3 1 described in subparagraph (v) of paragraph (a) of subdivision seven of 2 section one hundred thirty-seven of this chapter. 3 2. The incarcerated individual shall be permitted to leave such 4 presumptive placement and transfer to a facility housing individuals of 5 their assigned sex at birth at any time. Any such person who has opted 6 out of such presumptive placement or who leaves such placement may again 7 request placement in a correctional facility with persons of the gender 8 that most closely aligns with their self-attested gender identity at any 9 time. 10 3. Such presumptive placement may be overcome by a determination in 11 writing by the commissioner or the commissioner's designee that there is 12 clear and convincing evidence that such person presents a current danger 13 of committing gender-based violence against others. A denial of presump- 14 tive placement shall not be based on any discriminatory reasons, includ- 15 ing but not limited to (a) the past or current sex characteristics, 16 including chromosomes, genitals, gonads, other internal or external 17 reproductive anatomy, secondary sex characteristics, or hormone function 18 of the person whose housing placement is at issue, (b) the sexual orien- 19 tation of the person whose housing placement is at issue, (c) the 20 complaints of other incarcerated individuals who do not wish to be 21 housed with a non-cisgender or intersex person due to that person's 22 gender identity or sex characteristics, or (d) a factor present among 23 other people in the presumptive housing unit or facility. After being 24 notified that a transgender, gender nonconforming, nonbinary, or inter- 25 sex person is seeking presumptive placement, the department shall have 26 two days to make a determination pursuant to this subdivision. A denial 27 of presumptive placement shall be provided in writing to the affected 28 person within two days of the department's decision. The department 29 shall include in its written decision a description of all evidence 30 supporting the department's decision and an explanation of why the 31 evidence supports a determination that the person presents a current 32 danger of committing gender-based violence against others. The depart- 33 ment shall attach all supporting documentation to the written decision. 34 The supporting documentation may be redacted as necessary to protect any 35 person's privacy or safety. Unsubstantiated allegations are not clear 36 and convincing evidence justifying a denial of presumptive placement or 37 transfer out of presumptive placement. 38 4. The department's decision pursuant to subdivision three of this 39 section is final and shall not be grievable. 40 5. An incarcerated individual denied presumptive placement pursuant to 41 subdivision three of this section may re-apply for presumptive housing 42 at any time when there is information that was not previously submitted 43 to the commissioner or the commissioner's designee or when previous 44 information was improperly weighed by the commissioner or the commis- 45 sioner's designee. Such application shall be subject to subdivision 46 three of this section. 47 6. The department is prohibited from denying a presumptive placement 48 or transferring a person out of a presumptive placement as a form of 49 discipline. 50 7. A transgender, gender nonconforming, nonbinary, or intersex incar- 51 cerated individual experiencing harassment, violence or threats of 52 violence due to their gender identity or sex characteristics shall not 53 be placed in involuntary protective custody for more than fourteen days 54 as a result of such harassment, violence or threats of violence, and 55 shall be housed in a least-restrictive setting where they will be safe 56 from such behavior.S. 2860 4 1 8. All people shall receive notice in writing in a language and manner 2 understandable to them about the requirements of this section upon their 3 admission to a correctional facility or other institution. The depart- 4 ment shall provide annual training on provisions of this section to all 5 correctional personnel who are involved in the supervision or placement 6 of incarcerated individuals. 7 9. The department shall report annually to the governor, the temporary 8 president of the senate, the minority leader of the senate, the speaker 9 of the assembly, the minority leader of the assembly, the chairperson of 10 the senate crime victims, crime and correction committee and the chair- 11 person of the assembly correction committee on the number of transgen- 12 der, gender nonconforming, nonbinary, or intersex incarcerated individ- 13 uals who (a) were denied presumptive placement in accordance with 14 subdivision three of this section; (b) voluntarily opted out of presump- 15 tive placement in accordance with subdivision one of this section; and 16 (c) were kept in involuntary protective custody for longer than fourteen 17 days. Reports required by this section shall be posted on the website 18 maintained by the department. Reports may include de-identified individ- 19 ual information in the aggregate, but shall not include personally iden- 20 tifiable information. 21 10. A violation of this section is a violation of section forty-c of 22 the civil rights law and section two hundred ninety-six of the executive 23 law. Any individual aggrieved under this section may initiate 24 proceedings in a court of competent jurisdiction or in the New York 25 state division of human rights seeking injunctive relief and damages, 26 including reasonable attorney's fees. 27 § 4. Section 500-b of the correction law is amended by adding a new 28 subdivision 14 to read as follows: 29 14. (a) Notwithstanding the provisions of this section, any incarcer- 30 ated individual determined to have a gender identity different from 31 their assigned sex at birth, who has a diagnosis of gender dysphoria, 32 who has a variation in their sex characteristics, or who self-identifies 33 as transgender, gender nonconforming, nonbinary, or intersex pursuant to 34 subdivision seven of section one hundred thirty-seven of this chapter 35 shall be presumptively placed in a facility housing unit with incarcer- 36 ated individuals of the gender most closely aligned with such person's 37 self-attested gender identity unless the person opts out of such place- 38 ment. Placement shall not be conditioned upon the incarcerated individ- 39 ual's history of, consent to, intention to seek, or refusal to undergo 40 any treatment or intervention regarding their sex characteristics or 41 gender identity, including those interventions described in subparagraph 42 (v) of paragraph (a) of subdivision seven of section one hundred thir- 43 ty-seven of this chapter. The incarcerated individual shall be permit- 44 ted to leave such placement and transfer to a unit housing individuals 45 of their assigned sex at birth at any time. Any such person who has 46 opted out of such presumptive placement or who leaves such placement may 47 again request placement in a housing unit with persons of the gender 48 that most closely aligns with their self-attested gender identity at any 49 time. Such presumptive placement may be overcome by a determination in 50 writing by the chief administrative officer or their designee that there 51 is clear and convincing evidence that such person presents a current 52 danger of committing gender-based violence against others. A denial of 53 presumptive placement shall not be based on any discriminatory reasons, 54 including but not limited to (1) the past or current sex character- 55 istics, including chromosomes, genitals, gonads, other internal or 56 external reproductive anatomy, secondary sex characteristics, or hormoneS. 2860 5 1 function of the person whose housing placement is at issue, (2) the 2 sexual orientation of the person whose housing placement is at issue, 3 (3) the complaints of other incarcerated individuals who do not wish to 4 be housed with a non-cisgender or intersex person due to that person's 5 gender identity, or sex characteristics, or (4) a factor present among 6 other people in the presumptive housing unit or facility. After being 7 notified that a transgender, gender nonconforming, nonbinary, or inter- 8 sex person is seeking presumptive placement, the chief administrative 9 officer or their designee shall have two days to make a determination 10 pursuant to this subdivision. A denial of presumptive placement shall 11 be provided in writing to the affected person within two days of the 12 decision by the chief administrative officer or their designee. The 13 chief administrative officer or their designee shall include in their 14 written decision a description of all evidence supporting the decision 15 and an explanation of why the evidence supports a determination that the 16 person presents a current danger of committing gender-based violence 17 against others. The chief administrative officer or their designee shall 18 attach all supporting documentation to the written decision. The 19 supporting documentation may be redacted as necessary to protect any 20 person's privacy or safety. Unsubstantiated allegations are not clear 21 and convincing evidence justifying a denial of presumptive placement or 22 a transfer out of presumptive placement. 23 (b) The chief administrative officer's or their designee's decision 24 pursuant to paragraph (a) of this subdivision is final and not grieva- 25 ble. 26 (c) An incarcerated individual denied presumptive placement pursuant 27 to paragraph (a) of this subdivision may re-apply for presumptive hous- 28 ing at any time when there is information that was not previously 29 submitted to the chief administrative officer or their designee or when 30 previous information was improperly weighed by the chief administrative 31 officer or their designee. Such application is subject to paragraph (a) 32 of this subdivision. 33 (d) The chief administrative officer or their designee is prohibited 34 from denying a presumptive placement or transferring a person out of a 35 presumptive placement as a form of discipline. 36 (e) A transgender, gender nonconforming, or nonbinary incarcerated 37 individual experiencing harassment, violence or threats of violence due 38 to their gender identity or sex characteristics shall not be placed in 39 involuntary protective custody for more than fourteen days as a result 40 of such harassment, violence or threats of violence, and shall be housed 41 in a least-restrictive setting where they will be safe from such behav- 42 ior. 43 (f) All people shall receive notice in writing in a language and 44 manner understandable to them about the requirements of this subdivision 45 upon their admission to a local correctional facility. The sheriff shall 46 provide annual training on provisions of this subdivision to all correc- 47 tional personnel who are involved in the supervision or placement of 48 incarcerated individuals. 49 (g) The sheriff of each county shall report, in a form and manner 50 prescribed by the commission, the number of transgender, gender noncon- 51 forming, nonbinary, or intersex incarcerated individuals who (1) were 52 denied presumptive placement in accordance with paragraph (a) of this 53 subdivision; (2) voluntarily opted out of presumptive placement in 54 accordance with paragraph (a) of this subdivision; and (3) were kept in 55 involuntary protective custody for longer than fourteen days. The 56 commission shall include such information in its annual report pursuantS. 2860 6 1 to section forty-five of this chapter, but shall exclude identifying 2 information from such report. Reports required by this provision shall 3 be posted on the website maintained by the commission. 4 (h) A violation of this subdivision is a violation of section forty-c 5 of the civil rights law and section two hundred ninety-six of the execu- 6 tive law. Any individual aggrieved under this subdivision may initiate 7 proceedings in a court of competent jurisdiction or in the New York 8 state division of human rights seeking injunctive relief and damages, 9 including reasonable attorney's fees. 10 § 5. Section 500-b of the correction law is amended by adding a new 11 subdivision 15 to read as follows: 12 15. Pursuant to its authority under section forty-five of this chap- 13 ter, the commission in collaboration with the department shall promul- 14 gate rules and regulations to ensure that local correctional authorities 15 timely notify the department when a transgender, gender nonconforming, 16 nonbinary, or intersex person is being transferred into the custody of 17 the department. The rules and regulations shall ensure the department 18 makes necessary arrangements to ensure gender-aligned housing, unless 19 the impacted individual opts out of such housing, immediately upon 20 transfer to department custody. 21 § 6. Subdivision 1 of 500-k of the correction law, as separately 22 amended by chapters 93 and 322 of the laws of 2021, is amended to read 23 as follows: 24 1. Subdivisions five [and], six and seven of section one hundred thir- 25 ty-seven of this chapter, except paragraphs (d) and (e) of subdivision 26 six of such section, relating to the treatment of incarcerated individ- 27 uals in state correctional facilities are applicable to incarcerated 28 individuals confined in county jails; except that the report required by 29 paragraph (f) of subdivision six of such section shall be made to a 30 person designated to receive such report in the rules and regulations of 31 the state commission of correction, or in any county or city where there 32 is a department of correction, to the head of such department. 33 § 7. This act shall take effect immediately; provided, however, that 34 the amendments to section 500-b of the correction law made by sections 35 four and five of this act shall not affect the repeal of such section 36 and shall be deemed repealed therewith.