Senate Bill 132 FAQs

Housing and Searching Incarcerated People Consistent with their Gender Identify

Background:

Senate Bill 132, The Transgender Respect, Agency and Dignity Act, became effective on January 1, 2021. It allows incarcerated transgender, non-binary and intersex people to request to be housed and searched in a manner consistent with their gender identity.

The California Department of Corrections and Rehabilitation is committed to providing a safe, humane, respectful and rehabilitative environment for all incarcerated people including the incarcerated transgender, non-binary and intersex community, and is working to implement the law.

CDCR signed a contract with The Moss Group, Inc., a Washington, D.C.-based, nationally renowned criminal justice consulting firm, in October 2021 to provide long-term policy recommendations to help ensure successful continued implementation of SB 132.

As of August 21, 2022, there are 1,628 incarcerated people identified as transgender, non-binary and intersex. (This number is based on incarcerated people who self-identify using the Gender Identity Questionnaire.)

CDCR created a report of the incarcerated population by gender identity. It can be found on CDCR’s population reports webpage.

  • State law prohibits discrimination based on gender, including gender identity.
  • Senate Bill 132, a new law which took 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, non-binary and intersex 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 a 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 institution consistent with their gender identity. If disapproved, notification is given to the incarcerated person who has up to 60 days to file a grievance of the decision. If grieved, it will be referred to the Departmental Review Board for a decision regarding housing in a male or female institution. If there is new information, the request will be reevaluated by the classification committee.

Evaluating gender-based housing requests is part of CDCR’s existing case-by-case classification process used for all incarcerated people. It includes a review of an incarcerated person’s central file, various reports, and a thorough review of their history prior to and during incarceration; their crime, arrest and criminal history; trial and sentencing documentation; medical and mental health needs; custody level; time to serve; safety concerns and other factors including security and program needs. Medical and mental health care staff members are part of this process. Findings are then presented to the Institutional Classification Committee (ICC) to assist them in determining the incarcerated person’s housing, security level, custody requirements and program needs. This process varies with each incarcerated person.

In addition, PREA standards require that all incarcerated people be assessed during intake and when they transfer to another institution, and that this screening information be used in housing assignments. Information documented includes their age, disabilities, gender identity, personal and criminal history, prior incarcerations, prior incidents of victimization either in custody or in the community, and convictions for sex offenses. Based on the information gathered in the PREA Screening Tool, an incarcerated person will be given one of three designations: at risk as a victim, at risk as an abuser, or not identified as being at risk. For example, individuals at risk as a victim cannot be housed in a cell with an individual identified as being at risk as an abuser.

CDCR 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.

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.

As of August 21, 2022, 344 people housed in male institutions have requested to be housed in a female institution.

  • 43 were approved for transfer and seven previously approved people are being reevaluated
  • 16 were denied
  • 31 changed their minds

The remaining requests are being reviewed.

As of August 21, 2022, 14 individuals housed in a female institution have requested to be housed in a male institution. The requests are under review.

CDCR’s duty is to protect everyone within its facilities and it takes that duty very seriously. Part of the review process for transgender, non-binary and intersex 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’s reporting mechanisms do not track assaults by gender identity. All staff receive training on Prison Rape Elimination Act (PREA) protocols and PREA data is reported; however, the data is tracked by institution and not by gender identity. CDCR’s COMPSTAT reports include the number of assaults and batteries.

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 and/or legal action. Housing placement will be addressed using the PREA Screening Tool and on a case-by-case basis, taking all case factors into consideration.

Penal Code 6500, which went into effect in 2015, required CDCR to expand the availability of condoms in all state prisons, including female institutions. In female institutions, condoms are made available to the population for family (overnight) visits and to women when they are released from prison after completing their sentences. Per regulations, incarcerated people are strictly forbidden – with the exception of permitted family visiting – from engaging in sexual activity, and may face disciplinary and/or legal action.

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 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 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. A decision by the classification committee can be appealed by the incarcerated person. If grieved, it will be referred to the Departmental Review Board for a final decision regarding housing in a male or female institution.

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.

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 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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Note: Numbers will be updated monthly.