New York moves to allow biological males to be housed in women's prisons

The New York State legislature has reintroduced a piece of legislation brought forth in the previous legislative session that would allow prisoners to be housed according to their self-reported "gender identity," meaning that biological males could "self-ID" their way into women's prisons.

Assembly Bill A709, also called the "gender identity respect, dignity and safety act," states that prisoners who have a gender identity that differs from their birth sex should be allowed to seek accommodations that closely match their gender identity.

These accommodations include: being addressed by staff "in a manner that most closely aligns with such person’s gender identity," have access to commissary items that match their gender identity, and "have the right to be searched by a correctional officer or staff member of the gender most closely aligned with such person’s gender identity."

The bill would also give inmates the right to "maintain the confidentiality of records or portions of records related to their incarceration that would reveal their sex characteristics or their transgender, gender nonconforming, nonbinary, or intersex status, or that would otherwise reveal that their gender identity differs from their assigned sex at birth."

Inmates would be allowed to self-declare their gender identity status, as the bill would prohibit the department of corrections from "requiring documentation to conform a person’s gender identity, sex characteristics, or intersex status."

The bill would also allow for inmates to be housed in the facility that most closely matches their gender identity, stating that inmates "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."

"Placement shall not be conditioned upon the incarcerated individual’s history of, consent to, intention to seek, or refusal to undergo any treatment or intervention regarding their sex characteristics or gender identity," the bill adds.

Inmates are allowed to opt-in and out of this placement at any time, and those who opt out can request a placement at any time.

A placement in housing that matches gender identity can be denied "by a determination in writing by the commissioner or the commissioner’s designee that there is clear and convincing evidence that such person presents a current danger of committing gender-based violence against others."

The bill states that this presumptive placement will not be denied for "discriminatory reasons," including "the past or current sex characteristics," sexual orientation of the inmate, and "the complaints of other incarcerated individuals who do not wish to be housed with a non-cisgender or intersex person."

The bill does not list that previous crime committed by the person would be factored into the "current danger" an inmate could present that would prevent a presumptive placement.

An inmate that is denied these accommodations may appeal the decision, and can initiate proceedings in court seeking injunctive relief and damages.

The bill was introduced on Wednesday, with the first iteration of the bill being introduced in April of 2021 under the previous legislation.

That previous bill, A7001B, was referred to the Committee on Correction, which discharged the bill and the bill was amended, twice. The current bill has been referred to the committee.

Both bills were sponsored by Assemblywoman Nily Rozic of the 25th District, who won her reelection in 2022 56.6 percent to Republican challenger Seth Breland’s 43.4 percent, according to Ballotpedia.

Also included in both bills as cosponsors are Assemblymembers Emily Gallagher of the 50th District, Jessica Gonzales-Rojas of the 34th District, Charles D. Lavine of the 13th District, Jo Anne Simon of the 52nd District, Harvey Epstein of the 74th District, and Harry B Bronson of the 138th District.

Included as co-sponsors on the most recent bill iteration are Assemblymembers David I. Weprin of the 24th District, Dr. Anna R. Kelles of the 125th District, Rebecca A. Seawright of the 76th District, Chantel Jackson of the 79th District, Chris Burdick of the 93rd District, Deborah J. Glick of the 66th District, Phara Souffrant Forrest of the 57th District, Donna A. Lupardo of the 123rd District, Patricia Fahy of the 109th District, Catalina Cruz of the 39th District, and Edward Gibbs of the 68th District.

In a statement regarding the bill’s introduction, Amanda Stulman, USA Director of Keep Prisons Single Sex, wrote, "The realities of biological sex… are required to be ignored under this law. The Bill forbids considering whether the incarcerated person has a penis, is taking hormone pills, or has undergone any medicalization or treatment related to 'gender identity.’"

She later added, "The law does not articulate an exclusion for males who have been incarcerated for sex crimes against women or girls, or who are registered sex offenders, or who have committed prior criminal acts of abusing women."

"Despite claims to the contrary, it is not a human rights violation for male inmates (however they self-identify) to be denied access to showering with and sharing toilets and sleeping quarters with an already traumatized population of incarcerated women. Consistent with New York’s obligation to protect the rights of incarcerated women in its custody, we ask that you reject Assembly Bill 709," she concluded.