Text of MD SB 761 (2023)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *sb0761* SENATE BILL 761 E5 3lr1012 SB 550/22 – JPR CF HB 426 By: Senator Carter Introduced and read first time: February 6, 2023 Assigned to: Judicial Proceedings 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 requiring the Commissioner of Correction to report certain information 4 regarding the gender identities of inmates and the housing status of transgender, 5 nonbinary, or intersex inmates; prohibiting an employee of a correctional facility 6 from discriminating against inmates on the basis of certain protected classes; 7 requiring the managing official of a correctional facility to develop a written 8 nondiscrimination policy regarding inmates; establishing certain requirements for 9 correctional facilities relating to the gender identity of inmates and inmates who are 10 transgender, nonbinary, or intersex; and generally relating to correctional facilities 11 and transgender, nonbinary, and intersex inmates. 12 BY repealing and reenacting, without amendments, 13 Article – Correctional Services 14 Section 1–101(a) and 9–614(a)(1) and (3) 15 Annotated Code of Maryland 16 (2017 Replacement Volume and 2022 Supplement) 17 BY adding to 18 Article – Correctional Services 19 Section 1–101(h–1) and 9–618 through 9–620 20 Annotated Code of Maryland 21 (2017 Replacement Volume and 2022 Supplement) 22 BY repealing and reenacting, with amendments, 23 Article – Correctional Services 24 Section 3–207 25 Annotated Code of Maryland 26 (2017 Replacement Volume and 2022 Supplement) 27 2 SENATE BILL 761 BY repealing and reenacting, without amendments, 1 Article – State Government 2 Section 20–101(a) and (e) 3 Annotated Code of Maryland 4 (2021 Replacement Volume and 2022 Supplement) 5 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 6 That the Laws of Maryland read as follows: 7 Article – Correctional Services 8 1–101. 9 (a) In this article the following words have the meanings indicated. 10 (H–1) “GENDER IDENTITY” HAS THE MEANING STATED IN § 20–101 OF THE 11 STATE GOVERNMENT ARTICLE. 12 3–207. 13 (a) On or before October 31 of each year, the Commissioner shall submit an 14 annual report to the Secretary and the Governor that states, for each correctional facility 15 in the Division: 16 (1) its expenses, receipts, disbursements, condition, and progress; 17 (2) the number of inmates and each inmate’s age, sex, GENDER IDENTITY, 18 race, place of birth and conviction, crime, and term of confinement; 19 (3) the number of inmates who escape, are pardoned, or discharged; 20 (4) the job classifications for inmate labor in each department and facility 21 under the authority of the Division; 22 (5) the daily wage scale at each prison for each job classification under the 23 authority of the Division; 24 (6) the total number of inmates currently employed at facilities under the 25 authority of the Division, disaggregated by facility; 26 (7) the annual cost of living for inmates, including the average cost of: 27 (i) telephone calls, including calls to medical providers; 28 (ii) video calls; and 29 (iii) items available for purchase at a commissary, including: 30 SENATE BILL 761 3 1. feminine hygiene products; 1 2. toiletries; and 2 3. medications; [and] 3 (8) THE HOUSING STATUS OF TRANSGENDER, NONBINARY, AND 4 INTERSEX INMATES, INCLUDING WHETHER SUCH INMATES ARE HOUSED IN 5 RESTRICTIVE HOUSING, HAVE SINGLE–CELL STATUS, OR ARE HOUSED WITH 6 ANOTHER INMATE, AND THE GENDER IDENTITY OF ANY INMATES SHARING A CELL 7 WITH A TRANSGENDER, NONBINARY, OR INTERSEX INMATE; 8 (9) THE NUMBER OF REQUESTS FOR HOUSING TRANSFERS UNDER § 9 9–620 OF THIS ARTICLE, THE OUTCOME OF EACH REQUEST, AND THE REASON FOR 10 ANY DENIALS; AND 11 [(8)] (10) any remarks and suggestions the Commissioner considers 12 necessary to advance the interests of the correctional facility. 13 (b) The Commissioner shall submit with the report required by subsection (a) of 14 this section a statement similar to the statement that is required to be submitted under § 15 3–206 of this subtitle. 16 (c) The Commissioner shall verify the report and statement required by this 17 section. 18 (d) Subject to § 2–1257 of the State Government Article, the Governor shall 19 submit to the General Assembly the report and statement required under this section and 20 any recommendations that the Governor considers expedient. 21 9–614. 22 (a) (1) In this section the following words have the meanings indicated. 23 (3) (i) “Restrictive housing” means a form of physical separation that 24 has not been requested by the inmate in which the inmate is placed in a locked room or cell 25 for approximately 22 hours or more out of a 24–hour period. 26 (ii) “Restrictive housing” includes administrative segregation and 27 disciplinary segregation. 28 9–618. 29 (A) AN EMPLOYEE OF A CORRECTIONAL FACILITY MAY NOT DISCRIMINATE 30 AGAINST AN INMATE WITH REGARD TO PROGRAMS, SERVICES, OR ACTIVITIES, 31 4 SENATE BILL 761 INCLUDING HARASSING OR RETALIATING AGAINST THE INMATE, ON THE BASIS OF 1 THE INMATE’S RACE, ETHNICITY, RELIGION, NATIONAL ORIGIN, AGE, SEX, GENDER 2 IDENTITY, SEXUAL ORIENTATION, DISABILITY, PREGNANCY STATUS, OR POLITICAL 3 BELIEFS. 4 (B) THE MANAGING OFFICIAL OF A CORRECTIONAL FACILITY SHALL 5 IMPLEMENT A WRITTEN POLICY STATING THAT AN INMATE MAY NOT BE 6 DISCRIMINATED AGAINST WITH REGARD TO PROGRAMS, SERVICES, OR ACTIVITIES, 7 INCLUDING BEING HARASSED OR RETALIATED AGAINST, ON THE BASIS OF THE 8 INMATE’S RACE, ETHNICITY, RELIGION, NATIONAL ORIGIN, AGE, SEX, GENDER 9 IDENTITY, SEXUAL ORIENTATION, DISABILITY, PREGNANCY STATUS, OR POLITICAL 10 BELIEFS. 11 9–619. 12 (A) DURING THE INITIAL INTAKE AND CLASSIFICATION PROCESS, AN 13 OFFICER SHALL, IN A PRIVATE SETTING, ASK EACH INMATE TO SPECIFY THE 14 FOLLOWING INFORMATION: 15 (1) THE INMATE’S GENDER IDENTITY, INCLUDING MAN, WOMAN, OR 16 NONBINARY; 17 (2) WHETHER THE INMATE IDENTIFIES AS TRANSGENDER, 18 NONBINARY, OR INTERSEX; AND 19 (3) THE INMATE’S GENDER PRONOUNS AND HONORIFICS. 20 (B) AN INMATE MAY NOT BE DISCIPLINED FOR REFUSING TO DISCLOSE 21 INFORMATION IN RESPONSE TO THE QUESTIONS REQUIRED UNDER SUBSECTION (A) 22 OF THIS SECTION. 23 (C) (1) THE DEPARTMENT SHALL INFORM AN INMATE, VERBALLY AND IN 24 WRITING, THAT THE INMATE WILL NOT BE DISCIPLINED FOR REFUSING TO DISCLOSE 25 INFORMATION IN RESPONSE TO THE QUESTIONS REQUIRED UNDER SUBSECTION (A) 26 OF THIS SECTION. 27 (2) THE DEPARTMENT SHALL INFORM AN INMATE, VERBALLY AND IN 28 WRITING, OF THE INMATE’S RIGHTS UNDER SUBSECTION (A) OF THIS SECTION. 29 (D) AT ANY TIME, ON THE REQUEST OF AN INMATE, CORRECTIONAL 30 FACILITY STAFF SHALL PROMPTLY PROVIDE THE INMATE AN OPPORTUNITY TO 31 UPDATE THE INFORMATION PROVIDED UNDER SUBSECTION (A) OF THIS SECTION. 32 SENATE BILL 761 5 (E) STAFF, CONTRACTORS, AND VOLUNTEERS AT A CORRECTIONAL 1 FACILITY SHALL USE THE GENDER PRONOUNS AND HONORIFICS AN INMATE HAS 2 SPECIFIED IN ALL VERBAL AND WRITTEN COMMUNICATIONS WITH OR REGARDING 3 THE INMATE. 4 9–620. 5 (A) IT IS THE INTENT OF THE GENERAL ASSEMBLY THAT THE DEPARTMENT 6 PROVIDE GENDER–APPROPRIATE HOUSING PLACEMENT AND SEARCH 7 PROCEDURES, INCLUDING FOR TRANSGENDER, NONBINARY, INTERSEX, 8 TWO–SPIRIT, AND OTHER GENDER DIVERSE INDIVIDUALS. 9 (B) STAFF, CONTRACTORS, AND VOLUNTEERS AT A CORRECTIONAL 10 FACILITY SHALL ADDRESS AN INMATE IN A MANNER CONSISTENT WITH THE 11 INMATE’S GENDER IDENTITY. 12 (C) A TRANSGENDER, NONBINARY, OR INTERSEX INMATE SHALL BE GIVEN 13 THE OPPORTUNITY TO SHOWER SEPARATELY FROM OTHER INMATES. 14 (D) SUBJECT TO SUBSECTION (H) OF THIS SECTION, AN INMATE SHALL BE 15 HOUSED AT A CORRECTIONAL FACILITY DESIGNATED FOR MEN OR WOMEN BASED 16 ON WHETHER THE INMATE PREFERS TO BE HOUSED ACCORDING TO THE 17 PLACEMENT THAT MOST CLOSELY ALIGNS WITH THE INMATE’S GENDER IDENTITY 18 OR ACCORDING TO THE INMATE’S SEX ASSIGNED AT BIRTH, INCLUDING 19 RESIDENTIAL TREATMENT FACILITIES MANAGED BY THE DEPARTMENT IF THE 20 INMATE IS ELIGIBLE. 21 (E) (1) SUBJECT TO SUBSECTION (H) OF THIS SECTION, A HOUSING 22 DECISION WITHIN A FACILITY, INCLUDING GRANTING SINGLE–CELL STATUS, 23 HOUSING AN INMATE WITH ANOTHER INMATE OF THE INMATE’S GENDER IDENTITY, 24 OR REMOVING ANOTHER INMATE WHO POSES A THREAT TO THE INMATE, SHALL BE 25 BASED ON THE INMATE’S PREFERENCE AND PERCEPTION OF HEALTH AND SAFETY. 26 (2) AN INMATE MAY NOT BE PLACED IN RESTRICTIVE HOUSING, AS 27 DEFINED IN § 9–614 OF THIS SUBTITLE, IN RESPONSE TO A REQUEST MADE UNDER 28 PARAGRAPH (1) OF THIS SUBSECTION. 29 (F) AN INMATE’S ASSIGNMENT, PLACEMENT, OR PROGRAMMING SHALL BE 30 REASSESSED ANY TIME THE INMATE RAISES CONCERNS FOR THE INMATE’S HEALTH 31 OR SAFETY. 32 (G) (1) SUBJECT TO SUBSECTION (H) OF THIS SECTION, IF AN INMATE IS 33 LAWFULLY SEARCHED, THE INMATE SHALL BE SEARCHED ACCORDING TO THE 34 6 SENATE BILL 761 INMATE’S PREFERENCE OF WHETHER TO BE SEARCHED BY AN OFFICER OF THE 1 GENDER THAT MOST CLOSELY ALIGNS TO THE INMATE’S GENDER IDENTITY OR TO 2 BE SEARCHED BY AN OFFICER OF THE INMATE’S ASSIGNED SEX AT BIRTH. 3 (2) IF THE INMATE’S SEARCH PREFERENCE OR GENDER IDENTITY 4 CANNOT BE DETERMINED, THE INMATE SHALL BE SEARCHED ACCORDING TO THE 5 GENDER DESIGNATION OF THE FACILITY IN WHICH THE INMATE IS HOUSED. 6 (H) (1) THE DEPARTMENT MAY DENY AN INMATE’S SEARCH OR HOUSING 7 PLACEMENT REQUEST DUE TO CLEAR AND CONVINCING EVIDENCE OF SPECIFIC AND 8 ARTICULABLE MANAGEMENT OR SECURITY CONCERNS, INCLUDING A PRESENT RISK 9 THAT THE INMATE WILL COMMIT ABUSE BASED ON THE INMATE’S PREVIOUS 10 BEHAVIOR. 11 (2) IF THE DEPARTMENT DENIES AN INMATE’S SEARCH OR HOUSING 12 PLACEMENT REQUEST, THE SECRETARY, OR THE SECRETARY’S DESIGNEE, SHALL 13 CERTIFY IN WRITING A SPECIFIC AND ARTICULABLE BASIS FOR THE DEPARTMENT’S 14 INABILITY TO ACCOMMODATE THE INMATE’S PREFERENCE. 15 (3) THE DEPARTMENT MAY NOT DENY AN INMATE’S SEARCH OR 16 HOUSING PLACEMENT PREFERENCE BASED ON A DISCRIMINATORY REASON, 17 INCLUDING THE INMATE’S ANATOMY, PAST OR CURRENT PHYSICAL 18 CHARACTERISTICS, HISTORY OR LACK OF GENDER–AFFIRMING MEDICAL 19 TREATMENT, OR SEXUAL ORIENTATION. 20 (4) (I) AN INMATE DENIED A SEARCH OR HOUSING PLACEMENT 21 PREFERENCE REQUEST SHALL RECEIVE A COPY OF THE WRITTEN BASIS FOR THE 22 DENIAL AND SHALL BE GIVEN A REASONABLE TIME FRAME AFTER THE RECEIPT OF 23 THE DENIAL TO VERBALLY RAISE OR SUBMIT A COMPLAINT WITH ANY OBJECTIONS 24 TO THE DENIAL. 25 (II) ANY VERBAL OBJECTIONS RAISED BY THE INMATE TO THE 26 DENIAL SHALL BE DOCUMENTED. 27 (III) THE DEPARTMENT SHALL REASSESS ANY DENIED SEARCH 28 OR HOUSING PLACEMENT REQUESTS AT LEAST TWICE A YEAR. 29 Article – State Government 30 20–101. 31 (a) In Subtitles 1 through 11 of this title the following words have the meanings 32 indicated. 33 SENATE BILL 761 7 (e) “Gender identity” means the gender–related identity, appearance, expression, 1 or behavior of a person, regardless of the person’s assigned sex at birth, which may be 2 demonstrated by: 3 (1) consistent and uniform assertion of the person’s gender identity; or 4 (2) any other evidence that the gender identity is sincerely held as part of 5 the person’s core identity. 6 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 7 October 1, 2023. 8