Text of NY A 691 (2022)

STATE OF NEW YORK ________________________________________________________________________ 691 2021-2022 Regular Sessions IN ASSEMBLY (Prefiled) January 6, 2021 ___________ Introduced by M. of A. ROZIC, REYES, QUART, WEPRIN, BRONSON, GOTTFRIED, GLICK, SEAWRIGHT, EPSTEIN, SIMON, HEVESI, DE LA ROSA -- read once and referred to the Committee on Correction AN ACT to amend the correction law, in relation to the treatment and placement of incarcerated people based upon gender identity The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 137 of the correction law is amended by adding a 2 new subdivision 7 to read as follows: 3 7. Any incarcerated person in a correctional facility who has a gender 4 identity that differs from his or her assigned sex at birth or has a 5 diagnosis of gender dysphoria, as set forth in the most recent edition 6 of the American Psychiatric Association's "Diagnostic and Statistical 7 Manual of Mental Disorders", or who self-identifies as transgender or 8 gender nonconforming shall: 9 (a) be addressed by correctional officers and staff in a manner that 10 most closely aligns with such person's gender identity; 11 (b) have access to commissary items, clothing, personal property, 12 programming and educational materials that most closely align with such 13 person's gender identity; 14 (c) have the right to be searched by a correctional officer or staff 15 member of the gender most closely aligned with such person's gender 16 identity, unless the incarcerated person requests otherwise or under 17 exigent circumstances; and 18 (d) have the right to medical and mental health care as needed and as 19 appropriate for his or her gender identity. 20 § 2. The correction law is amended by adding a new section 72-c to 21 read as follows: 22 § 72-c. Placement of inmates based on gender identity. 1. An incarcer- 23 ated person who has a gender identity that differs from his or her EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03291-01-1 A. 691 2 1 assigned sex at birth or who has a diagnosis of gender dysphoria or who 2 self-identifies as transgender or gender nonconforming pursuant to 3 subdivision seven of section one hundred thirty-seven of this chapter 4 shall be presumptively placed in a correctional facility with persons of 5 the gender that most closely aligns with such person's gender identity 6 unless the person opts out of such placement. The incarcerated person 7 shall be permitted to leave such placement and transfer to a facility 8 housing individuals of his or her assigned sex at birth at any time. Any 9 such person who has opted out of such presumptive placement or who 10 leaves such placement may again request placement in a correctional 11 facility with persons of the gender that most closely aligns with his or 12 her gender identity at any time. Such presumptive placement may be 13 overcome by a determination in writing by the commissioner or the 14 commissioner's designee that there is clear and convincing evidence that 15 such person presents a current danger of committing gender-based 16 violence against others. In making such a determination, the commission- 17 er or his or her designee shall further consider whether such person can 18 be safely housed in another facility or housing unit that most closely 19 aligns with the person's gender identity. 20 2. A transgender incarcerated person experiencing harassment, violence 21 or threats of violence due to his or her gender identity shall not be 22 placed in protective custody for more than thirty days as a result of 23 such harassment, violence or threats of violence, and must be housed in 24 a least-restrictive setting where he or she will be safe from such 25 behavior. 26 § 3. Section 500-b of the correction law is amended by adding a new 27 subdivision 14 to read as follows: 28 14. 1. Notwithstanding the provisions of this section, any incarcerat- 29 ed person determined to have a gender identity different from his or her 30 assigned sex at birth or who has a diagnosis of gender dysphoria or who 31 is self-identified as transgender or gender nonconforming pursuant to 32 subdivision seven of section one hundred thirty-seven of this chapter 33 shall be presumptively placed in a facility housing unit with incarcer- 34 ated individuals of the gender most closely aligned with such person's 35 gender identity. Such presumptive placement may be overcome by a written 36 determination by the chief administrative officer, or the chief adminis- 37 trative officer's designee, that the placement would present significant 38 safety, management or security problems. 39 2. A transgender incarcerated individual experiencing harassment, 40 violence or threats of violence due to his or her gender identity shall 41 not be placed in protective custody for more than thirty days as a 42 result of such harassment, violence or threats of violence, and must be 43 housed in a least-restrictive setting where he or she will be safe from 44 such behavior. 45 § 4. Section 500-k of the correction law, as amended by chapter 2 of 46 the laws of 2008, is amended to read as follows: 47 § 500-k. Treatment of inmates. Subdivisions five [and], six and seven 48 of section one hundred thirty-seven of this chapter, except paragraphs 49 (d) and (e) of subdivision six of such section, relating to the treat- 50 ment of inmates in state correctional facilities are applicable to 51 inmates confined in county jails; except that the report required by 52 paragraph (f) of subdivision six of such section shall be made to a 53 person designated to receive such report in the rules and regulations of 54 the state commission of correction, or in any county or city where there 55 is a department of correction, to the head of such department. A. 691 3 1 § 5. This act shall take effect immediately; provided, however, that 2 the amendments to section 500-b of the correction law made by section 3 three of this act shall not affect the repeal of such section and shall 4 be deemed repealed therewith.