Senate Bill 132 FAQs

Housing and Searching Incarcerated People Consistent with their Gender Identify

Background:

Governor Gavin Newsom signed Senate Bill 132, The Transgender Respect, Agency and Dignity Act, legislation that allows incarcerated transgender, non-binary and intersex people to request to be housed and searched in a manner consistent with their gender identity. The new law became effective Jan. 1, 2021. Authored by Senator Scott Wiener, SB 132 supports the California Department of Corrections and Rehabilitation’s efforts to provide a safe, humane, respectful and rehabilitative environment for the incarcerated transgender, non-binary and intersex community.

As of August 6, 2021, there are 1,274 incarcerated people identified as transgender or have symptoms of gender dysphoria; this number also includes intersex people as well as those who identify as gender non-conforming or non-binary. (This number is based on incarcerated people who self-identify resulting in the transgender box being checked on their Medical Classification Chrono.)

  • State law prohibits discrimination based on gender, including gender identity.
  • Senate Bill 132, a new law to take effect Jan. 1, 2021, allows incarcerated transgender, non-binary and intersex people to request to be housed and searched in a manner consistent with their gender identity.
  • The federal Prison Rape Elimination Act (PREA) expressly prohibits housing decisions based solely on an incarcerated person’s external genitalia.
  • PREA standards require correctional agencies to consider on a case-by-case basis incarcerated people’s requests to be placed in an institution consistent with their gender identity when different from their sex assigned at birth.
  • PREA data from 2015 shows transgender people experience the highest rates of sexual victimization inside prisons and jails. All correctional agencies have a legal obligation to protect the people they incarcerate.

Since transgender people may be singled out for violent attacks by other incarcerated people and are at a higher risk for victimization, CDCR must make every effort to protect this vulnerable population. Housing transgender people according to their gender identity, when safe to do so, increases safety in prisons, upholds CDCR’s duty to protect all incarcerated people and promotes successful rehabilitation.

All requests for housing based on gender identity will be reviewed by a multi-disciplinary classification committee chaired by the Warden and made up of custody, medical and mental health care staff, and a PREA Compliance Manager. This committee will review all case factors and the individual’s history to make a recommendation for approval or disapproval of the request. If approved, the incarcerated person will be transferred to a male or female Reception Center consistent with their gender identity. If disapproved, notification is given to the incarcerated person who has up to 30 days to grieve the decision. If grieved, it will be referred to the Departmental Review Board for a decision regarding housing in a male or female prison.

No. All placement requests will go through an in-depth review prior to approval or denial. The department may deny a housing request based on management or security concerns. However, CDCR must give serious consideration to the perceptions of health and safety of the person making the request, and under no circumstances can the denial be based on any discriminatory reason, including anatomy, physical characteristics, and sexual orientation.

The possibility of pregnancy was considered in the development of this policy. CDCR has existing policies and procedures related to pregnancy. Sexual acts are prohibited in prison and will result in disciplinary action. Housing placement will be addressed using the PREA Screening Tool and on a case-by-case basis, taking all case factors into consideration.

CDCR has a multi-disciplinary team of staff in place to review all gender-based housing preference requests. Custody, medical and mental health staff as well as a PREA Compliance Manager will be involved in every assessment of a request to be housed in a facility that matches a person’s gender identity. CDCR has the ability to deny a request based on management or security concerns.

CDCR’s duty is to protect everyone within its facilities and takes that duty very seriously. Part of the review process for transgender people requesting housing based on their gender identity will include an evaluation of the safety of the person making the request as well as the safety of the people at the facility where the person has asked to be housed. Moreover, any incarcerated person can communicate their safety concerns at any time to staff.

CDCR does not determine an incarcerated person’s gender identity. Every incarcerated person self-identifies. When a person first arrives to a CDCR institution or upon transfer, pursuant to SB 132, the individual will be asked if they identify as transgender, non-binary or intersex. This self-identification will guide the process of requesting to be searched and/or housed according to gender identity.

No. All housing for incarcerated people is evaluated on a case-by-case basis, which includes their criminal history, behavior, rehabilitation opportunities, medical and psychiatric needs, program needs as well as their safety and security. If an incarcerated person requests housing different from their current assignment (e.g. a transgender woman requesting housing in a female institution), they can make that request to their assigned correctional counselor. That request will be considered as part of CDCR’s classification process.

No. The decision whether or not to take hormones does not impact eligibility to be housed according to one’s gender identity.

Establishing a facility solely for housing transgender people would be a violation of the national Prison Rape Elimination Act (PREA) Standard, 28 Code of Federal Regulations (CFR), Section 115.42(g), which states in part, “The agency shall not place lesbian, gay, bisexual, transgender, or intersex inmates in dedicated facilities, units, or wings solely on the basis of such identification or status …”

Transgender and cisgender people are currently being housed together and will continue to be housed together when appropriate. Housing decisions are always made on a case-by-case basis, using screening criteria and taking into consideration all case factors.

Incarcerated non-binary people shall receive the same accommodations as transgender people.

Yes, like any other housing decision, an incarcerated person who was previously approved for housing based on gender identity can have that approval rescinded if staff believe management or security concerns require a different housing placement. Any recommendation to rescind an approval for housing based on gender identity is reviewed by a classification committee.

After an incarcerated person has been assigned permanent housing at an institution consistent with their gender identity, they may find this change is not what they expected or is creating other concerns for them. If that person no longer wants to be housed based on their gender identity, they will submit their request according to policy and their case will be reviewed by a classification committee.

Yes. All incarcerated people who are transgender, non-binary or intersex can request to be searched in a manner consistent with their gender identity or according to the existing search policies of the gender designation of the facility where they are housed. In exigent circumstances, any staff member may conduct a clothed search of any incarcerated person consistent with the gender designation of the facility. However, based on the transgender person’s approved search preference, CDCR will accommodate the request. If the incarcerated individual’s preference or gender identity cannot be determined, the search is to be conducted according to the gender designation of the facility where they are housed.

CDCR and advocates conducted a survey of more than 600 incarcerated transgender, non-binary, intersex and gender non-conforming people between Nov. 26, 2019, and Dec. 28, 2019.

  • 9.5 percent of respondents housed in a women’s prison said they would prefer being housed in a male prison, 14.3 percent were undecided, 70.2 percent preferred to stay in a women’s prison, 5.4 percent had no preference and 0.6 percent had no response.
  • 48.6 percent of respondents housed in a men’s prison said they would prefer to be housed in a female prison, 19.1 percent were undecided, 23.9 percent preferred to stay in a men’s prison, 8.1 percent had no preference and 0.3 percent had no response.

The participants were also surveyed about the gender identities they most often use to describe themselves, their search preferences, their potential future housing preferences and if they believed they can safely report discrimination, harassment or violence.

No, California is not the first prison system to house incarcerated people based on their gender identity. There are federal, state, and local correctional agencies who are housing individuals based on their gender identity. CDCR consulted with other agencies and reviewed their policies and procedures in the development of its policy.

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