A bill being considered by the New York State Senate would allow inmates to be housed in facilities that match their gender identity, based solely on their self-identification. New York's unelected Governor Kathy Hochul is also on board with the plan.
The bill has been co-sponsored by 10 other state senators, all of which are Democrats.
The bill requires that inmates who have "a gender identity that differs from their assigned sex at birth, who has a diagnosis of gender dysphoria, who has a variation in their sex characteristics, or who self-identifies as transgender, gender nonconforming, nonbinary, or intersex" be referred to by their preferred pronoun and name, have access to items and programming that aligns with their identity, and have the right to be searched by a guard who is the same identity as what they align with.
Inmates will automatically be placed in a facility that lines up with their self-attested gender identity, unless the inmate opts out.
The legislation states that inmates should have access to medical care necessary and appropriate for their sex characteristics and gender dysphoria, and that they not be subjected to unwanted medical attention and procedures like surgical gender reassignment or counseling in an attempt to change their gender identity.
Incarceration facilities will be prohibited under this legislation from requiring any documentation or evidence regarding a person’s gender identity.
"The department is prohibited from requiring documentation to confirm a person's gender identity, sex characteristics, or intersex status," the legislation states.
A placement in a facility that aligns with a person’s self-attested gender identity can be changed at any time, with a person being sent to a facility that lines up with their biological sex. This process can be reversed at any time, going back to the prison that aligns with their gender identity.
This placement can be overruled if it is determined if "there is clear and convincing evidence that such person presents a current danger of committing gender-based violence against others."
The placement cannot be withheld due to past sex characteristics, sexual orientation, or "the complaints of other incarcerated individual's who do not wish to be housed with a non-cisgender or intersex person due to that person's gender identity identity or sex characteristics."
Any denial of such accommodations that counts as a violation of the legislation can be disputed by the inmate, and "Any individual aggrieved under this section may initiate proceedings in a court of competent jurisdiction or in the New York state division of human rights seeking injunctive relief and damages, including reasonable attorney fees," the legislation states.
In New Jersey, where the state implemented policies allowing biological males to be housed in female prisons, two women were revealed to have gotten pregnant while behind bars.
The prison, Edna Mahan Correctional Facility, houses 27 biological male inmates, in addition to its over 800 female inmates.
A similar piece of legislation has been passed in Washington state, where rapes have been reported within female prisons in the aftermath.