Text of NY A 709 (2024)

STATE OF NEW YORK ________________________________________________________________________ 709 2023-2024 Regular Sessions IN ASSEMBLY January 11, 2023 ___________ Introduced by M. of A. ROZIC, GALLAGHER, GONZALEZ-ROJAS, LAVINE, SIMON, EPSTEIN, BRONSON, WEPRIN, KELLES, SEAWRIGHT, JACKSON, BURDICK, GLICK, FORREST, LUPARDO, FAHY, CRUZ, GIBBS -- read once and referred to the Committee on Correction AN ACT to amend the correction law, in relation to enacting the "gender identity respect, dignity and safety act" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "gender identity respect, dignity and safety act". 3 § 2. Section 137 of the correction law is amended by adding a new 4 subdivision 7 to read as follows: 5 7. (a) Any incarcerated individual in a correctional facility who has 6 a gender identity that differs from their assigned sex at birth, who has 7 a diagnosis of gender dysphoria, who has a variation in their sex char- 8 acteristics, or who self-identifies as transgender, gender nonconform- 9 ing, nonbinary, or intersex shall: 10 (i) be addressed by correctional officers and staff in a manner that 11 most closely aligns with such person's gender identity, including the 12 name and pronouns specified by that person. If a person states that, in 13 order to most closely align with their gender identity, they use a name 14 that is different from the name listed on their government-issued iden- 15 tification, they shall be addressed and referred to by their requested 16 name; 17 (ii) have access to commissary items, clothing, personal property, 18 programming and educational materials that most closely align with such 19 person's gender identity; 20 (iii) have the right to be searched by a correctional officer or staff 21 member of the gender most closely aligned with such person's gender 22 identity, unless the incarcerated individual requests otherwise or under 23 exigent circumstances; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00512-01-3 A. 709 2 1 (iv) have the right to access all necessary and appropriate medical 2 and mental health care, including routine and preventive medical care 3 related to their sex characteristics, and affirming medical and mental 4 health care as related to gender dysphoria or gender affirmation, which 5 includes access to items that are used by individuals to affirm their 6 gender identity, including those items associated with necessary and 7 appropriate care after gender-affirming surgery; 8 (v) have the right not to be subjected to medical or mental health 9 treatments or interventions which they do not want or to which they do 10 not provide informed consent, including but not limited to surgical 11 interventions to change their sex characteristics such as genital 12 surgeries and sterilizations, and counseling that pathologizes or 13 attempts to change their sexual orientation or gender identity; and 14 (vi) have the right to maintain the confidentiality of records or 15 portions of records related to their incarceration that would reveal 16 their sex characteristics or their transgender, gender nonconforming, 17 nonbinary, or intersex status, or that would otherwise reveal that their 18 gender identity differs from their assigned sex at birth, that they have 19 a diagnosis of gender dysphoria, or that they have an intersex trait or 20 variation in their sex characteristics. This provision does not prevent 21 an incarcerated individual from consenting to the release of such mate- 22 rial nor does it prevent the release of aggregate data, reports created 23 pursuant to subdivision seven of section seventy-two-d and paragraph (e) 24 of subdivision fourteen of section five hundred-b of this chapter, or 25 records that have otherwise been de-identified and would not reveal the 26 identity of a transgender, gender nonconforming, nonbinary, or intersex 27 person without their consent. 28 (b) The department is prohibited from requiring documentation to 29 confirm a person's gender identity, sex characteristics, or intersex 30 status. 31 (c) All people shall receive notice in writing in a language and 32 manner understandable to them about the requirements of this subdivision 33 upon their admission to a correctional facility. 34 (d) The department shall provide annual training on provisions of this 35 subdivision to all personnel. 36 (e) A violation of this subdivision is a violation of section forty-c 37 of the civil rights law and section two hundred ninety-six of the execu- 38 tive law. Any individual aggrieved under this subdivision may initiate 39 proceedings in a court of competent jurisdiction or in the New York 40 state division of human rights seeking injunctive relief and damages, 41 including reasonable attorney's fees. 42 § 3. The correction law is amended by adding a new section 72-d to 43 read as follows: 44 § 72-d. Placement of incarcerated individuals based on gender identi- 45 ty. 1. An incarcerated individual who has a gender identity that differs 46 from their assigned sex at birth, who has a diagnosis of gender dyspho- 47 ria, who has a variation in their sex characteristics, or who self-iden- 48 tifies as transgender, gender nonconforming, nonbinary, or intersex 49 pursuant to subdivision seven of section one hundred thirty-seven of 50 this chapter shall be presumptively placed in a correctional facility 51 with persons of the gender that most closely aligns with such person's 52 self-attested gender identity unless the person opts out of such place- 53 ment. Placement shall not be conditioned upon the incarcerated individ- 54 ual's history of, consent to, intention to seek, or refusal to undergo 55 any treatment or intervention regarding their sex characteristics or 56 gender identity, including those interventions described in subparagraph A. 709 3 1 (v) of paragraph (a) of subdivision seven of section one hundred thir- 2 ty-seven of this chapter. 3 2. The incarcerated individual shall be permitted to leave such 4 presumptive placement and transfer to a facility housing individuals of 5 their assigned sex at birth at any time. Any such person who has opted 6 out of such presumptive placement or who leaves such placement may again 7 request placement in a correctional facility with persons of the gender 8 that most closely aligns with their self-attested gender identity at any 9 time. 10 3. Such presumptive placement may be overcome by a determination in 11 writing by the commissioner or the commissioner's designee that there is 12 clear and convincing evidence that such person presents a current danger 13 of committing gender-based violence against others. A denial of presump- 14 tive placement shall not be based on any discriminatory reasons, includ- 15 ing but not limited to (a) the past or current sex characteristics, 16 including chromosomes, genitals, gonads, other internal or external 17 reproductive anatomy, secondary sex characteristics, or hormone function 18 of the person whose housing placement is at issue, (b) the sexual orien- 19 tation of the person whose housing placement is at issue, (c) the 20 complaints of other incarcerated individuals who do not wish to be 21 housed with a non-cisgender or intersex person due to that person's 22 gender identity or sex characteristics, or (d) a factor present among 23 other people in the presumptive housing unit or facility. A denial of 24 presumptive placement shall be provided in writing to the affected 25 person within two days of the department's decision. The department 26 shall include in its written decision a description of all evidence 27 supporting the department's decision and an explanation of why the 28 evidence supports a determination that the person presents a current 29 danger of committing gender-based violence against others. The depart- 30 ment shall attach all supporting documentation to the written decision. 31 The supporting documentation may be redacted as necessary to protect any 32 person's privacy or safety. Unsubstantiated allegations are not clear 33 and convincing evidence justifying a denial of presumptive placement or 34 transfer out of presumptive placement. A person may grieve the denial. 35 4. The department is prohibited from denying a presumptive placement 36 or transferring a person out of a presumptive placement as a form of 37 discipline. 38 5. A transgender, gender nonconforming, nonbinary, or intersex incar- 39 cerated individual experiencing harassment, violence or threats of 40 violence due to their gender identity or sex characteristics shall not 41 be placed in involuntary protective custody for more than fourteen days 42 as a result of such harassment, violence or threats of violence, and 43 shall be housed in a least-restrictive setting where they will be safe 44 from such behavior. 45 6. All people shall receive notice in writing in a language and manner 46 understandable to them about the requirements of this section upon their 47 admission to a correctional facility. The department shall provide annu- 48 al training on provisions of this section to all correctional personnel 49 who are involved in the supervision or placement of incarcerated indi- 50 viduals. 51 7. The department shall report annually to the governor, the temporary 52 president of the senate, the minority leader of the senate, the speaker 53 of the assembly, the minority leader of the assembly, the chairperson of 54 the senate crime victims, crime and correction committee and the chair- 55 person of the assembly correction committee on the number of transgen- 56 der, gender nonconforming, nonbinary, or intersex incarcerated individ- A. 709 4 1 uals who (a) were denied presumptive placement in accordance with 2 subdivision three of this section; (b) voluntarily opted out of presump- 3 tive placement in accordance with subdivision one of this section; and 4 (c) were kept in involuntary protective custody for longer than fourteen 5 days. Reports required by this section shall be posted on the website 6 maintained by the department. Reports may include de-identified individ- 7 ual information in the aggregate, but shall not include personally iden- 8 tifiable information. 9 8. A violation of this section is a violation of section forty-c of 10 the civil rights law and section two hundred ninety-six of the executive 11 law. Any individual aggrieved under this section may initiate 12 proceedings in a court of competent jurisdiction or in the New York 13 state division of human rights seeking injunctive relief and damages, 14 including reasonable attorney's fees. 15 § 4. Section 500-b of the correction law is amended by adding a new 16 subdivision 14 to read as follows: 17 14. (a) Notwithstanding the provisions of this section, any incarcer- 18 ated individual determined to have a gender identity different from 19 their assigned sex at birth, who has a diagnosis of gender dysphoria, 20 who has a variation in their sex characteristics, or who self-identifies 21 as transgender, gender nonconforming, nonbinary, or intersex pursuant to 22 subdivision seven of section one hundred thirty-seven of this chapter 23 shall be presumptively placed in a facility housing unit with incarcer- 24 ated individuals of the gender most closely aligned with such person's 25 self-attested gender identity unless the person opts out of such place- 26 ment. Placement shall not be conditioned upon the incarcerated individ- 27 ual's history of, consent to, intention to seek, or refusal to undergo 28 any treatment or intervention regarding their sex characteristics or 29 gender identity, including those interventions described in subparagraph 30 (v) of paragraph (a) of subdivision seven of section one hundred thir- 31 ty-seven of this chapter. The incarcerated individual shall be permit- 32 ted to leave such placement and transfer to a unit housing individuals 33 of their assigned sex at birth at any time. Any such person who has 34 opted out of such presumptive placement or who leaves such placement may 35 again request placement in a housing unit with persons of the gender 36 that most closely aligns with their self-attested gender identity at any 37 time. Such presumptive placement may be overcome by a determination in 38 writing by the chief administrative officer or their designee that there 39 is clear and convincing evidence that such person presents a current 40 danger of committing gender-based violence against others. A denial of 41 presumptive placement shall not be based on any discriminatory reasons, 42 including but not limited to (1) the past or current sex character- 43 istics, including chromosomes, genitals, gonads, other internal or 44 external reproductive anatomy, secondary sex characteristics, or hormone 45 function of the person whose housing placement is at issue, (2) the 46 sexual orientation of the person whose housing placement is at issue, 47 (3) the complaints of other incarcerated individuals who do not wish to 48 be housed with a non-cisgender person due to that person's gender iden- 49 tity, or sex characteristics, or (4) a factor present among other people 50 in the presumptive housing unit or facility. A denial of presumptive 51 placement shall be provided in writing to the affected person within two 52 days of the decision by the chief administrative officer or their desig- 53 nee. The chief administrative officer or their designee shall include 54 in their written decision a description of all evidence supporting the 55 decision and an explanation of why the evidence supports a determination 56 that the person presents a current danger of committing gender-based A. 709 5 1 violence against others. The chief administrative officer or their 2 designee shall attach all supporting documentation to the written deci- 3 sion. The supporting documentation may be redacted as necessary to 4 protect any person's privacy or safety. Unsubstantiated allegations are 5 not clear and convincing evidence justifying a denial of presumptive 6 placement or a transfer out of presumptive placement. A person may 7 grieve the denial. 8 (b) The chief administrative officer or their designee is prohibited 9 from denying a presumptive placement or transferring a person out of a 10 presumptive placement as a form of discipline. 11 (c) A transgender, gender nonconforming, or nonbinary incarcerated 12 individual experiencing harassment, violence or threats of violence due 13 to their gender identity or sex characteristics shall not be placed in 14 involuntary protective custody for more than fourteen days as a result 15 of such harassment, violence or threats of violence, and shall be housed 16 in a least-restrictive setting where they will be safe from such behav- 17 ior. 18 (d) All people shall receive notice in writing in a language and 19 manner understandable to them about the requirements of this subdivision 20 upon their admission to a local correctional facility. The sheriff shall 21 provide annual training on provisions of this subdivision to all correc- 22 tional personnel who are involved in the supervision or placement of 23 incarcerated individuals. 24 (e) The sheriff of each county shall report, in a form and manner 25 prescribed by the commission, the number of transgender, gender noncon- 26 forming, or nonbinary incarcerated individuals who (1) were denied 27 presumptive placement in accordance with paragraph (a) of this subdivi- 28 sion; (2) voluntarily opted out of presumptive placement in accordance 29 with paragraph (a) of this subdivision; and (3) were kept in involuntary 30 protective custody for longer than fourteen days. The commission shall 31 include such information in its annual report pursuant to section 32 forty-five of this chapter, but shall exclude identifying information 33 from such report. Reports required by this provision shall be posted on 34 the website maintained by the commission. 35 (f) A violation of this subdivision is a violation of section forty-c 36 of the civil rights law and section two hundred ninety-six of the execu- 37 tive law. Any individual aggrieved under this subdivision may initiate 38 proceedings in a court of competent jurisdiction or in the New York 39 state division of human rights seeking injunctive relief and damages, 40 including reasonable attorney's fees. 41 § 5. Subdivision 1 of 500-k of the correction law, as separately 42 amended by chapters 93 and 322 of the laws of 2021, is amended to read 43 as follows: 44 1. Subdivisions five [and], six and seven of section one hundred thir- 45 ty-seven of this chapter, except paragraphs (d) and (e) of subdivision 46 six of such section, relating to the treatment of incarcerated individ- 47 uals in state correctional facilities are applicable to incarcerated 48 individuals confined in county jails; except that the report required by 49 paragraph (f) of subdivision six of such section shall be made to a 50 person designated to receive such report in the rules and regulations of 51 the state commission of correction, or in any county or city where there 52 is a department of correction, to the head of such department. 53 § 6. This act shall take effect immediately; provided, however, that 54 the amendments to section 500-b of the correction law made by section 55 four of this act shall not affect the repeal of such section and shall 56 be deemed repealed therewith.