Text of MD HB 453 (2022)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb0453* HOUSE BILL 453 E5 2lr1325 CF 2lr2041 By: Delegate Lopez Introduced and read first time: January 20, 2022 Assigned to: Judiciary A BILL ENTITLED AN ACT concerning 1 Correctional Facilities – Transgender, Nonbinary, and Intersex Inmates 2 (Transgender Respect, Agency, and Dignity Act) 3 FOR the purpose of prohibiting an employee of a correctional facility from discriminating 4 against inmates on the basis of certain protected classes; requiring the managing 5 official of a correctional facility to develop a written nondiscrimination policy 6 regarding inmates; establishing certain requirements for correctional facilities 7 relating to the gender identity of inmates and inmates who are transgender, 8 nonbinary, or intersex; and generally relating to correctional facilities and 9 transgender, nonbinary, and intersex inmates. 10 BY adding to 11 Article – Correctional Services 12 Section 9–618 through 9–620 13 Annotated Code of Maryland 14 (2017 Replacement Volume and 2021 Supplement) 15 Preamble 16 WHEREAS, The term “transgender” is broad and inclusive of all gender identities 17 different from the gender a person was assigned at birth, including transsexual, two–spirit, 18 and māhū. “Nonbinary” is an inclusive term used to describe individuals who may 19 experience a gender identity that is neither exclusively male nor female or is in between or 20 beyond both of those genders, including gender fluid, agender or without gender, third 21 gender, genderqueer, gender variant, and gender nonconforming. The term “intersex” is a 22 broad and inclusive term referring to people whose anatomy, hormones, or chromosomes 23 fall outside the strict male and female binary; and 24 WHEREAS, The United States Supreme Court recognized that incarcerated 25 transgender individuals are particularly vulnerable to sexual abuse and sexual harassment 26 and that disregarding the known risks to a transgender woman constitutes deliberate 27 2 HOUSE BILL 453 indifference in violation of the federal Constitution; and 1 WHEREAS, Official data collected by the U.S. Bureau of Justice Statistics confirms 2 that nationwide, incarcerated transgender individuals experience exceptionally high rates 3 of sexual victimization. In a 2011–2012 survey, almost 40% of incarcerated transgender 4 individuals reported experiencing sexual victimization while incarcerated compared to 4% 5 of all incarcerated individuals; and 6 WHEREAS, A congressional study found that instances of prison rape often go 7 unreported, and that “most prison staff are not adequately trained or prepared to prevent, 8 report or treat inmate sexual assaults”. 40% of transgender women respondents reported 9 harassment from other incarcerated individuals, and 38% reported being harassed by 10 correctional officers or staff; and 11 WHEREAS, Correctional officers and other incarcerated people predominantly refer 12 to transgender women as men, using masculine pronouns, and transgender men as women, 13 using feminine pronouns; and 14 WHEREAS, Gender transition is a deeply personal experience that may involve 15 some combination of social transition, legal transition, medical transition, or none of these. 16 Some transgender, nonbinary, and intersex people experience gender dysphoria that 17 requires medical treatment, while others do not experience gender dysphoria. Due to safety 18 concerns, inconsistent medical and mental health care, insufficient education and 19 resources, and other factors, incarceration often serves as a barrier to gender transition. 20 Regardless of the ways in which a person chooses or is able to express the person’s gender 21 or to take medical, social, or legal transition steps, the person deserves respect, agency, and 22 dignity; now, therefore, 23 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 24 That the Laws of Maryland read as follows: 25 Article – Correctional Services 26 9–618. 27 (A) AN EMPLOYEE OF A CORRECTIONAL FACILITY MAY NOT DISCRIMINATE 28 AGAINST AN INMATE WITH REGARD TO PROGRAMS, SERVICES, OR ACTIVITIES ON 29 THE BASIS OF THE INMATE’S RACE, ETHNICITY, RELIGION, NATIONAL ORIGIN, AGE, 30 SEX, GENDER IDENTITY, SEXUAL ORIENTATION, DISABILITY, PREGNANCY STATUS, 31 OR POLITICAL BELIEFS. 32 (B) THE MANAGING OFFICIAL OF A CORRECTIONAL FACILITY SHALL 33 IMPLEMENT A WRITTEN POLICY STATING THAT AN INMATE MAY NOT BE 34 DISCRIMINATED AGAINST WITH REGARD TO PROGRAMS, SERVICES, OR ACTIVITIES 35 ON THE BASIS OF THE INMATE’S RACE, ETHNICITY, RELIGION, NATIONAL ORIGIN, 36 AGE, SEX, GENDER IDENTITY, SEXUAL ORIENTATION, DISABILITY, PREGNANCY 37 HOUSE BILL 453 3 STATUS, OR POLITICAL BELIEFS. 1 9–619. 2 (A) DURING THE INITIAL INTAKE AND CLASSIFICATION PROCESS, AN 3 OFFICER SHALL, IN A PRIVATE SETTING, ASK EACH INMATE TO SPECIFY THE 4 FOLLOWING INFORMATION: 5 (1) THE INMATE’S GENDER IDENTITY, INCLUDING MALE, FEMALE, OR 6 NONBINARY; 7 (2) WHETHER THE INMATE IDENTIFIES AS TRANSGENDER, 8 NONBINARY, OR INTERSEX; AND 9 (3) THE INMATE’S GENDER PRONOUNS AND HONORIFICS. 10 (B) AN INMATE MAY NOT BE DISCIPLINED FOR REFUSING TO DISCLOSE 11 INFORMATION IN RESPONSE TO THE QUESTIONS REQUIRED UNDER SUBSECTION (A) 12 OF THIS SECTION. 13 (C) AT ANY TIME, ON THE REQUEST OF AN INMATE, CORRECTIONAL 14 FACILITY STAFF SHALL PROMPTLY PROVIDE THE INMATE AN OPPORTUNITY TO 15 UPDATE THE INFORMATION PROVIDED UNDER SUBSECTION (A) OF THIS SECTION. 16 (D) STAFF, CONTRACTORS, AND VOLUNTEERS AT A CORRECTIONAL 17 FACILITY SHALL USE THE GENDER PRONOUNS AND HONORIFICS AN INMATE HAS 18 SPECIFIED IN ALL VERBAL AND WRITTEN COMMUNICATIONS WITH OR REGARDING 19 THE INMATE THAT INVOLVE THE USE OF A PRONOUN OR HONORIFIC. 20 9–620. 21 (A) THIS SECTION APPLIES TO AN INMATE WHO IS TRANSGENDER, 22 NONBINARY, OR INTERSEX, REGARDLESS OF ANATOMY. 23 (B) STAFF, CONTRACTORS, AND VOLUNTEERS AT A CORRECTIONAL 24 FACILITY SHALL ADDRESS AN INMATE IN A MANNER CONSISTENT WITH THE 25 INMATE’S GENDER IDENTITY. 26 (C) SUBJECT TO SUBSECTION (F) OF THIS SECTION, AN INMATE SHALL BE 27 HOUSED AT A CORRECTIONAL FACILITY DESIGNATED FOR MEN OR WOMEN BASED 28 ON THE INMATE’S PREFERENCE, INCLUDING RESIDENTIAL TREATMENT FACILITIES 29 MANAGED BY THE DEPARTMENT IF THE INMATE IS ELIGIBLE. 30 4 HOUSE BILL 453 (D) (1) WHEN CONSIDERING A HOUSING DECISION WITHIN A FACILITY, 1 INCLUDING GRANTING SINGLE CELL STATUS, HOUSING AN INMATE WITH ANOTHER 2 INMATE OF THE INMATE’S CHOICE, OR REMOVING ANOTHER INMATE WHO POSES A 3 THREAT TO THE INMATE, STAFF SHALL CONSIDER THE INMATE’S PERCEPTION OF 4 HEALTH AND SAFETY. 5 (2) AN INMATE’S ASSIGNMENT, PLACEMENT, OR PROGRAMMING 6 SHALL BE REASSESSED ANY TIME AN INMATE RAISES CONCERNS FOR THE INMATE’S 7 HEALTH OR SAFETY. 8 (E) (1) IF AN INMATE IS LAWFULLY SEARCHED, THE INMATE SHALL BE 9 SEARCHED ACCORDING TO THE SEARCH POLICY FOR THE INMATE’S GENDER 10 IDENTITY OR ACCORDING TO THE GENDER DESIGNATION OF THE FACILITY IN WHICH 11 THE INMATE IS HOUSED, BASED ON THE INMATE’S PREFERENCE. 12 (2) IF THE INMATE’S SEARCH PREFERENCE OR GENDER IDENTITY 13 CANNOT BE DETERMINED, THE INMATE SHALL BE SEARCHED ACCORDING TO THE 14 GENDER DESIGNATION OF THE FACILITY IN WHICH THE INMATE IS HOUSED. 15 (F) (1) THE DEPARTMENT MAY DENY AN INMATE’S SEARCH OR HOUSING 16 PLACEMENT PREFERENCE DUE TO SPECIFIC AND ARTICULABLE MANAGEMENT OR 17 SECURITY CONCERNS. 18 (2) IF THE DEPARTMENT DENIES AN INMATE’S SEARCH OR HOUSING 19 PLACEMENT PREFERENCE, THE SECRETARY, OR THE SECRETARY’S DESIGNEE, 20 SHALL CERTIFY IN WRITING A SPECIFIC AND ARTICULABLE BASIS FOR THE 21 DEPARTMENT’S INABILITY TO ACCOMMODATE THE INMATE’S PREFERENCE. 22 (3) THE DEPARTMENT MAY NOT DENY AN INMATE’S SEARCH OR 23 HOUSING PLACEMENT PREFERENCE BASED ON A DISCRIMINATORY REASON, 24 INCLUDING THE INMATE’S ANATOMY OR SEXUAL ORIENTATION. 25 (4) (I) AN INMATE DENIED A SEARCH OR HOUSING PLACEMENT 26 PREFERENCE REQUEST SHALL RECEIVE A COPY OF THE WRITTEN BASIS FOR THE 27 DENIAL AND SHALL BE GIVEN A REASONABLE TIME FRAME FROM THE RECEIPT OF 28 THE DENIAL TO VERBALLY RAISE ANY OBJECTIONS TO THE DENIAL. 29 (II) ANY VERBAL OBJECTIONS RAISED BY THE INMATE TO THE 30 DENIAL SHALL BE DOCUMENTED. 31 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 32 October 1, 2022. 33