Bill Text: NY S06677 | 2021-2022 | General Assembly | Amended


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 13-0)

Status: (Introduced - Dead) 2022-04-26 - PRINT NUMBER 6677A [S06677 Detail]

Download: New_York-2021-S06677-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         6677--A

                               2021-2022 Regular Sessions

                    IN SENATE

                                      May 11, 2021
                                       ___________

        Introduced  by Sens. SALAZAR, BIAGGI, BRISPORT, HOYLMAN, JACKSON, MYRIE,
          RIVERA, SEPULVEDA -- read twice and ordered printed, and when  printed
          to  be  committed  to  the  Committee  on  Crime  Victims,  Crime  and
          Correction -- recommitted to the Committee on Crime Victims, Crime and
          Correction in accordance with Senate  Rule  6,  sec.  8  --  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 who has
     6  a gender identity that differs from their assigned sex at birth, who has
     7  a diagnosis of gender dysphoria, who has a variation in their sex  char-
     8  acteristics,  or  who self-identifies as transgender, gender nonconform-
     9  ing, 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;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03291-10-2

        S. 6677--A                          2

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

        S. 6677--A                          3

     1  such placement.  Placement shall not be conditioned upon the incarcerat-
     2  ed individual's history of, consent to, intention to seek, or refusal to
     3  undergo any treatment or intervention  regarding  their  sex  character-
     4  istics  or  gender  identity, including those interventions described in
     5  subparagraph (v) of paragraph (a) of subdivision seven  of  section  one
     6  hundred thirty-seven of this chapter.
     7    2.  The  incarcerated  individual  shall  be  permitted  to leave such
     8  presumptive placement and transfer to a facility housing individuals  of
     9  their  assigned  sex at birth at any time. Any such person who has opted
    10  out of such presumptive placement or who leaves such placement may again
    11  request placement in a correctional facility with persons of the  gender
    12  that most closely aligns with their self-attested gender identity at any
    13  time.
    14    3.  Such  presumptive  placement may be overcome by a determination in
    15  writing by the commissioner or the commissioner's designee that there is
    16  clear and convincing evidence that such person presents a current danger
    17  of committing gender-based violence against others. A denial of presump-
    18  tive placement shall not be based on any discriminatory reasons, includ-
    19  ing but not limited to (a) the  past  or  current  sex  characteristics,
    20  including  chromosomes,  genitals,  gonads,  other  internal or external
    21  reproductive anatomy, secondary sex characteristics, or hormone function
    22  of the person whose housing placement is at issue, (b) the sexual orien-
    23  tation of the person whose  housing  placement  is  at  issue,  (c)  the
    24  complaints  of  other  incarcerated  individual's  who do not wish to be
    25  housed with a non-cisgender or intersex  person  due  to  that  person's
    26  gender identity identity or sex characteristics, or (d) a factor present
    27  among other people in the presumptive housing unit or facility. A denial
    28  of  presumptive  placement  shall be provided in writing to the affected
    29  person within two days of the department's  decision.    The  department
    30  shall  include  in  its  written  decision a description of all evidence
    31  supporting the department's decision  and  an  explanation  of  why  the
    32  evidence  supports  a  determination  that the person presents a current
    33  danger of committing gender-based violence against others.  The  depart-
    34  ment  shall attach all supporting documentation to the written decision.
    35  The supporting documentation may be redacted as necessary to protect any
    36  person's privacy or safety. Unsubstantiated allegations  are  not  clear
    37  and  convincing evidence justifying a denial of presumptive placement or
    38  transfer out of presumptive placement.  A person may grieve the denial.
    39    4. The department is prohibited from denying a  presumptive  placement
    40  or  transferring  a  person  out of a presumptive placement as a form of
    41  discipline.
    42    5. A transgender, gender nonconforming, nonbinary, or intersex  incar-
    43  cerated  individual  experiencing  harassment,  violence  or  threats of
    44  violence due to their gender identity or sex characteristics  shall  not
    45  be  placed in involuntary protective custody for more than fourteen days
    46  as a result of such harassment, violence or  threats  of  violence,  and
    47  shall  be  housed in a least-restrictive setting where they will be safe
    48  from such behavior.
    49    6. All people shall receive notice in writing in a language and manner
    50  understandable to them about the requirements of this section upon their
    51  admission to a correctional facility. The department shall provide annu-
    52  al training on provisions of this section to all correctional  personnel
    53  who  are  involved in the supervision or placement of incarcerated indi-
    54  vidual's.
    55    7. The department shall report annually to the governor, the temporary
    56  president of the senate, the minority leader of the senate, the  speaker

        S. 6677--A                          4

     1  of the assembly, the minority leader of the assembly, the chairperson of
     2  the  senate crime victims, crime and correction committee and the chair-
     3  person of the assembly correction committee the number  of  transgender,
     4  gender  nonconforming,  or  nonbinary, or intersex incarcerated individ-
     5  ual's who (a) were  denied  presumptive  placement  in  accordance  with
     6  subdivision  three  of  this  section;  and (b) voluntarily opted out of
     7  presumptive  placement  in  accordance  with  subdivision  one  of  this
     8  section;  and (c) were kept in involuntary protective custody for longer
     9  than fourteen days. Reports required by this section shall be posted  on
    10  the website maintained by the department. Reports may include de-identi-
    11  fied  individual  information  in  the  aggregate, but shall not include
    12  personally identifiable information.
    13    8. A violation of this section is a violation of  section  forty-c  of
    14  the civil rights law and section two hundred ninety-six of the executive
    15  law.     Any  individual  aggrieved  under  this  section  may  initiate
    16  proceedings in a court of competent jurisdiction  or  in  the  New  York
    17  state  division  of  human rights seeking injunctive relief and damages,
    18  including reasonable attorney fees.
    19    § 4. Section 500-b of the correction law is amended by  adding  a  new
    20  subdivision 14 to read as follows:
    21    14.  (a) Notwithstanding the provisions of this section, any incarcer-
    22  ated individual determined to have  a  gender  identity  different  from
    23  their  assigned  sex  at birth, who has a diagnosis of gender dysphoria,
    24  who has a variation in their sex characteristics, or who is self-identi-
    25  fied as transgender, gender nonconforming, nonbinary, or intersex pursu-
    26  ant to subdivision seven of section one  hundred  thirty-seven  of  this
    27  chapter  shall  be  presumptively placed in a facility housing unit with
    28  incarcerated individuals of the gender most closely  aligned  with  such
    29  person's  self-attested  gender  identity  unless the person opts out of
    30  such placement.  Placement shall not be conditioned upon the incarcerat-
    31  ed individual's history of, consent to, intention to seek, or refusal to
    32  undergo any treatment or intervention  regarding  their  sex  character-
    33  istics  or  gender  identity, including those interventions described in
    34  subparagraph (v) of paragraph (a) of subdivision seven  of  section  one
    35  hundred thirty-seven of this chapter.  The incarcerated individual shall
    36  be  permitted  to  leave  such  placement and transfer to a unit housing
    37  individuals of their assigned sex at birth at any time. Any such  person
    38  who  has  opted  out  of  such  presumptive placement or who leaves such
    39  placement may again request placement in a housing unit with persons  of
    40  the  gender  that  most  closely  aligns with their self-attested gender
    41  identity at any time. Such presumptive placement may be  overcome  by  a
    42  determination  in  writing  by the chief administrative officer or their
    43  designee that there is clear and convincing evidence  that  such  person
    44  presents  a  current  danger of committing gender-based violence against
    45  others. A denial of presumptive placement shall  not  be  based  on  any
    46  discriminatory  reasons,  including  but  not limited to (1) the past or
    47  current sex characteristics, including  chromosomes,  genitals,  gonads,
    48  other  internal  or external reproductive anatomy, secondary sex charac-
    49  teristics, or hormone function of the person whose housing placement  is
    50  at  issue, (2) the sexual orientation of the person whose housing place-
    51  ment is at issue, (3) the complaints of other incarcerated  individual's
    52  who  do  not  wish  to be housed with a non-cisgender person due to that
    53  person's gender identity, or sex characteristics or (4) a factor present
    54  among other people in the presumptive housing unit or facility. A denial
    55  of presumptive placement shall be provided in writing  to  the  affected
    56  person within two days of the decision by the chief administrative offi-

        S. 6677--A                          5

     1  cer or their designee.  The chief administrative officer or their desig-
     2  nee  shall  include  in  their  written  decision  a  description of all
     3  evidence supporting the decision and an explanation of why the  evidence
     4  supports  a  determination  that the person presents a current danger of
     5  committing gender-based violence against others. The  chief  administra-
     6  tive officer or their designee shall attach all supporting documentation
     7  to the written decision. The supporting documentation may be redacted as
     8  necessary  to  protect  any  person's privacy or safety. Unsubstantiated
     9  allegations are not clear and convincing evidence justifying a denial of
    10  presumptive placement or a transfer out of  presumptive  placement.    A
    11  person may grieve the denial.
    12    (b)  The  chief administrative officer or their designee is prohibited
    13  from denying a presumptive placement or transferring a person out  of  a
    14  presumptive placement as a form of discipline.
    15    (c)  A  transgender,  gender  nonconforming, or nonbinary incarcerated
    16  individual experiencing harassment, violence or threats of violence  due
    17  to  their  gender identity or sex characteristics shall not be placed in
    18  involuntary protective custody for more than fourteen days as  a  result
    19  of such harassment, violence or threats of violence, and shall be housed
    20  in  a least-restrictive setting where they will be safe from such behav-
    21  ior.
    22    (d) All people shall receive notice  in  writing  in  a  language  and
    23  manner understandable to them about the requirements of this subdivision
    24  upon their admission to a local correctional facility. The sheriff shall
    25  provide annual training on provisions of this subdivision to all correc-
    26  tional  personnel  who  are  involved in the supervision or placement of
    27  incarcerated individual's.
    28    (e) The sheriff of each county shall report,  in  a  form  and  manner
    29  prescribed  by the commission, the number of transgender, gender noncon-
    30  forming, or nonbinary incarcerated  individual's  who  (1)  were  denied
    31  presumptive  placement in accordance with paragraph (a) of this subdivi-
    32  sion; and (2) voluntarily opted out of presumptive placement in  accord-
    33  ance with paragraph (a) of this subdivision; and (3) were kept in invol-
    34  untary  protective custody for longer than fourteen days. The commission
    35  shall include such information in its annual report pursuant to  section
    36  forty-five  of  this  chapter, but shall exclude identifying information
    37  from such report. Reports required by this provision shall be posted  on
    38  the website maintained by the commission.
    39    (f)  A violation of this subdivision is a violation of section forty-c
    40  of the civil rights law and section two hundred ninety-six of the execu-
    41  tive law. Any individual aggrieved under this subdivision  may  initiate
    42  proceedings  in  a  court  of  competent jurisdiction or in the New York
    43  state division of human rights seeking injunctive  relief  and  damages,
    44  including reasonable attorney fees.
    45    §  5.  Section  500-k  of the correction law, as separately amended by
    46  chapters 93 and 322 of the laws of 2021, is amended to read as follows:
    47    § 500-k. Treatment of incarcerated individuals. 1.  Subdivisions  five
    48  [and],  six  and seven of section one hundred thirty-seven of this chap-
    49  ter, except paragraphs (d) and (e) of subdivision six of  such  section,
    50  relating  to  the treatment of incarcerated individuals in state correc-
    51  tional facilities are applicable to incarcerated individuals confined in
    52  county jails; except that the report required by paragraph (f) of subdi-
    53  vision six of such section shall be  made  to  a  person  designated  to
    54  receive such report in the rules and regulations of the state commission
    55  of  correction,  or in any county or city where there is a department of
    56  correction, to the head of such department.

        S. 6677--A                          6

     1    2. Notwithstanding any other section of law to the contrary,  subdivi-
     2  sion  thirty-four of section two of this chapter, and subparagraphs (i),
     3  (iv) and (v) of paragraph (j) and subparagraph (ii) of paragraph (m)  of
     4  subdivision  six  of  section  one  hundred thirty-seven of this chapter
     5  shall  not  apply to local correctional facilities with a total combined
     6  capacity of five hundred [inmates] incarcerated individual's or fewer.
     7    § 6. This act shall take effect immediately; provided,  however,  that
     8  the  amendments  to  section 500-b of the correction law made by section
     9  four of this act shall not affect the repeal of such section  and  shall
    10  be  deemed  repealed therewith; provided, further, that if chapter 93 of
    11  the laws of 2021 shall not have taken effect on or before such date then
    12  section five of this act shall take effect on the same date and  in  the
    13  same manner as such chapter of the laws of 2021 takes effect.
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