Reporting on inmates' gender identity to be disallowed under new Washington state bill

A new bill that passed the Washington state House of Representatives changes the guidelines for reporting of information about prison inmates, while they are incarcerated and after their release. The bill adds exemptions from disclosure requirements to information held by the Department of Corrections. It prohibits the disclosure of records that would expose a person's gender identity, specifically in service to transgender inmates.

The bill states that any "sensitive records" that "would disclose information about an incarcerated individual's transgender, intersex, nonbinary, or gender nonconforming status; sexual orientation; genital anatomy; or gender-affirming care or accommodations other than that person's preferred name and pronouns" are "exempt from disclosure."

The bill further states that in the event that records that would disclose gender identity were requested, the Department of Corrections can refuse to release them without providing a reason why. "If the DOC refuses the disclosure of sensitive records that would disclose the identity of a confidential informant or information about an incarcerated individual's gender nonconforming status, sexual orientation, genital anatomy, or gender-affirming care, it is not required to provide a statement of the specific exemption authorizing the withholding or a brief explanation of how the exemption applies to the record or information withheld.

"Instead, in response to all public record requests, the DOC must notify requestors that this category of sensitive information is not subject to the statutory requirement and that the DOC neither confirms nor denies the existence or withholding of such records."

This exemption is specifically in regards to information tagged to individuals, and not in the aggregate. "This exemption does not prevent 13 the disclosure of information relating to sensitive records in 14 aggregate form if the data does not alone or in combination with any 15 other records reveal the identity of an incarcerated individual."

The Women's Liberation Front urges caution with the passing of this bill, which still has to clear the Washington state Senate. WoLF said that "This bill would cover up how many men are housed in women's prisons in the state."

"If this bill passes," they go on to say, "the public will no longer be able to access information about how many men are housed in women's prisons in Washington, how many of them still retain their male genitalia, and whether they are committing violent acts against the women they are locked up with."

The bill is backed by the ACLU, which also protested against the release of data that would show how many biological males who claim to identify as transgender are housed in women's facilities. In 2021, a woman filed a Freedom on Information Act request to get this information from the Washington Department of Corrections. Instead of getting the information she requested, she got sued by the ACLU.

The Washington Public Records Act guarantees that citizens have the right to access public records, and requires the government to respond to requests within five days. Only personal student or patient information, employee files, and some investigative records are exempt. HB 1956 would amend the Public Records Act so that the information requested in the FOIA, which was disputed by the ACLU, would be exempt from release to the public.

If data and statistics on transgender inmates are not separately reported, it will become impossible to distinguish women inmates from biological males housed in women's prison. In the event that crimes are committed by the transgender inmates against the women inmates, the crimes will be recorded as crimes committed by women. Any reported rapes against women would be recorded as rapes by women against other women; any ensuing pregnancies would be recorded as a woman impregnating another woman with "her" penis.

However, while the bill states that aggregated data that did not disclose identity would be permissible, this FOIA was asking for that kind of data, and it was still protested and not given.

Her ask was for "A complete and accurate count of inmates who identify as transgender," noting that this means a person who does not identify according to their biological sex, and she asked the Department of Correction to "break this information down by location."

She wanted data on the "number of inmates that have been transferred from a men's facility to a women's facility since January 01, 2021," as well as the "Total number of male persons who identify as female, non-binary, or any other gender identity that are currently housed in a women's facility."

Washington state women's prison facilities have been the site of assaults by transgender identified biological males against the females with whom they are housed.

A former inmate at the Washington Corrections Center for Women in Gig Harbor described numerous allegations of sexual assault carried out by convicted biological male inmates in women's prisons.

After it was reported that six biological male inmates who identify as transgender were transferred to another Washington state women's prison, reports of assaults emerged from that prison. An employee at the Washington Corrections Center for Women in Pierce County reported that upon arrival to that facility, a biological male inmate who claims a female identity raped a female inmate.

Additional accounts of assaults, rapes, and ensuing pregnancies have emerged in other states and nations where the transfer of biological males to women's prisons has been enacted in law.

These changes are likely coming to other states as well in the wake of President Joe Biden's executive orders that equated gender identity with biological sex, eliminating sex-based protections for women as described in the Civil Rights Act of 1964, and granted those protections to anyone who claims to be a woman in addition to women. Gender-segregated jails, and not sex-segregated jails, are one of the many outcomes of this conflation, per presidential decree.