Text of NY S 6677 (2022)

STATE OF NEW YORK ________________________________________________________________________ 6677 2021-2022 Regular Sessions IN SENATE May 11, 2021 ___________ Introduced by Sen. SALAZAR -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and 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 person in a correctional facility who has a 6 gender identity that differs from their assigned sex at birth or who has 7 a diagnosis of gender dysphoria, or who self-identifies as transgender 8 or gender nonconforming or nonbinary shall: 9 (i) be addressed by correctional officers and staff in a manner that 10 most closely aligns with such person's gender identity. If a person 11 states that, in order to most closely align with their gender identity, 12 they use a name that is different from the name listed on their govern- 13 ment-issued identification, they shall be addressed and referred to by 14 their requested name; 15 (ii) have access to commissary items, clothing, personal property, 16 programming and educational materials that most closely align with such 17 person's gender identity; 18 (iii) have the right to be searched by a correctional officer or staff 19 member of the gender most closely aligned with such person's gender 20 identity, unless the incarcerated person requests otherwise or under 21 exigent circumstances; and 22 (iv) have the right to medical and mental health care as needed and as 23 appropriate for their gender identity and to items that are used by EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03291-06-1 S. 6677 2 1 individuals to affirm their gender identity, including those associated 2 with necessary and appropriate care after gender-affirming surgery. 3 (b) The department is prohibited from requiring documentation to 4 confirm a person's gender identity. All people shall receive notice in 5 writing in a language and manner understandable to them about the 6 requirements of this subdivision upon their admission to a correctional 7 facility. The department shall provide annual training on provisions of 8 this subdivision to all personnel. A violation of this subdivision is a 9 violation of section forty-c of the civil rights law and section two 10 hundred ninety-six of the executive law. Any individual aggrieved under 11 this subdivision may initiate proceedings in a court of competent juris- 12 diction or in the New York state division of human rights seeking 13 injunctive relief and damages, including reasonable attorney fees. 14 § 3. The correction law is amended by adding a new section 72-d to 15 read as follows: 16 § 72-d. Placement of inmates based on gender identity. 1. An incarcer- 17 ated person who has a gender identity that differs from their assigned 18 sex at birth or who has a diagnosis of gender dysphoria or who self-i- 19 dentifies as transgender or gender nonconforming or nonbinary pursuant 20 to subdivision seven of section one hundred thirty-seven of this chapter 21 shall be presumptively placed in a correctional facility with persons of 22 the gender that most closely aligns with such person's gender identity 23 unless the person opts out of such placement. The incarcerated person 24 shall be permitted to leave such placement and transfer to a facility 25 housing individuals of their assigned sex at birth at any time. Any such 26 person who has opted out of such presumptive placement or who leaves 27 such placement may again request placement in a correctional facility 28 with persons of the gender that most closely aligns with their gender 29 identity at any time. Such presumptive placement may be overcome by a 30 determination in writing by the commissioner or the commissioner's 31 designee that there is clear and convincing evidence that such person 32 presents a current danger of committing gender-based violence against 33 others. A denial of presumptive placement shall not be based on any 34 discriminatory reasons, including but not limited to (a) the anatomy or 35 genitalia of the person whose housing placement is at issue, (b) the 36 sexual orientation of the person whose housing placement is at issue, 37 (c) the complaints of cisgender people who do not wish to be housed with 38 a non-cisgender person due to that person's gender identity, or (d) a 39 factor present among other people in the presumptive housing unit or 40 facility. A denial of presumptive placement and detailed reasoning for 41 the denial shall be provided in writing to the affected person within 42 two days of the department's decision. A person may grieve the denial. 43 2. A transgender or gender nonconforming or nonbinary incarcerated 44 person experiencing harassment, violence or threats of violence due to 45 their gender identity shall not be placed in involuntary protective 46 custody for more than thirty days as a result of such harassment, 47 violence or threats of violence, and shall be housed in a least-restric- 48 tive setting where they will be safe from such behavior. 49 3. All people shall receive notice in writing in a language and manner 50 understandable to them about the requirements of this section upon their 51 admission to a correctional facility. The department shall provide annu- 52 al training on provisions of this section to all correctional personnel 53 who are involved in the supervision or placement of incarcerated 54 persons. 55 4. The department shall report annually to the governor, the temporary 56 president of the senate, the minority leader of the senate, the speaker S. 6677 3 1 of the assembly, the minority leader of the assembly, the chairperson of 2 the senate crime victims, crime and correction committee and the chair- 3 person of the assembly correction committee the number of transgender, 4 gender nonconforming, or nonbinary incarcerated people who (a) were 5 denied presumptive placement in accordance with subdivision one of this 6 section; and (b) voluntarily opted out of presumptive placement in 7 accordance with subdivision one of this section; and (c) were kept in 8 involuntary protective custody for longer than thirty days. Reports 9 required by this section shall be posted on the website maintained by 10 the department. Reports may include de-identified individual information 11 in the aggregate, but shall not include personally identifiable informa- 12 tion. 13 5. A violation of this section is a violation of section forty-c of 14 the civil rights law and section two hundred ninety-six of the executive 15 law. Any individual aggrieved under this section may initiate 16 proceedings in a court of competent jurisdiction or in the New York 17 state division of human rights seeking injunctive relief and damages, 18 including reasonable attorney fees. 19 § 4. Section 500-b of the correction law is amended by adding a new 20 subdivision 14 to read as follows: 21 14. (a) Notwithstanding the provisions of this section, any incarcer- 22 ated person determined to have a gender identity different from their 23 assigned sex at birth or who has a diagnosis of gender dysphoria or who 24 is self-identified as transgender or gender nonconforming or nonbinary 25 pursuant to subdivision seven of section one hundred thirty-seven of 26 this chapter shall be presumptively placed in a facility housing unit 27 with incarcerated individuals of the gender most closely aligned with 28 such person's gender identity unless the person opts out of such place- 29 ment. The incarcerated person shall be permitted to leave such placement 30 and transfer to a unit housing individuals of their assigned sex at 31 birth at any time. Any such person who has opted out of such presumptive 32 placement or who leaves such placement may again request placement in a 33 housing unit with persons of the gender that most closely aligns with 34 their gender identity at any time. Such presumptive placement may be 35 overcome by a determination in writing by the chief administrative offi- 36 cer or their designee that there is clear and convincing evidence that 37 such person presents a current danger of committing gender-based 38 violence against others. A denial of presumptive placement shall not be 39 based on any discriminatory reasons, including but not limited to (1) 40 the anatomy or genitalia of the person whose housing placement is at 41 issue, (2) the sexual orientation of the person whose housing placement 42 is at issue, (3) the complaints of cisgender people who do not wish to 43 be housed with a non-cisgender person due to that person's gender iden- 44 tity, or (4) a factor present among other people in the presumptive 45 housing unit or facility. A denial of presumptive placement and detailed 46 reasoning for the denial shall be provided in writing to the affected 47 person within two days of the decision by the chief administrative offi- 48 cer or his designee. A person may grieve the denial. 49 (b) A transgender, gender nonconforming, or nonbinary incarcerated 50 individual experiencing harassment, violence or threats of violence due 51 to their gender identity shall not be placed in involuntary protective 52 custody for more than thirty days as a result of such harassment, 53 violence or threats of violence, and shall be housed in a least-restric- 54 tive setting where they will be safe from such behavior. 55 (c) All people shall receive notice in writing in a language and 56 manner understandable to them about the requirements of this subdivision S. 6677 4 1 upon their admission to a local correctional facility. The sheriff shall 2 provide annual training on provisions of this subdivision to all correc- 3 tional personnel who are involved in the supervision or placement of 4 incarcerated persons. 5 (d) The sheriff of each county shall report, in a form and manner 6 prescribed by the commission, the number of transgender, gender noncon- 7 forming, or nonbinary incarcerated people who (1) were denied presump- 8 tive placement in accordance with paragraph (a) of this subdivision; and 9 (2) voluntarily opted out of presumptive placement in accordance with 10 paragraph (a) of this subdivision; and (3) were kept in involuntary 11 protective custody for longer than thirty days. The commission shall 12 include such information in its annual report pursuant to section 13 forty-five of this chapter, but shall exclude identifying information 14 from such report. Reports required by this provision shall be posted on 15 the website maintained by the commission. 16 (e) A violation of this subdivision is a violation of section forty-c 17 of the civil rights law and section two hundred ninety-six of the execu- 18 tive law. Any individual aggrieved under this subdivision may initiate 19 proceedings in a court of competent jurisdiction or in the New York 20 state division of human rights seeking injunctive relief and damages, 21 including reasonable attorney fees. 22 § 5. Section 500-k of the correction law, as amended by chapter 2 of 23 the laws of 2008, is amended to read as follows: 24 § 500-k. Treatment of inmates. Subdivisions five [and], six and seven 25 of section one hundred thirty-seven of this chapter, except paragraphs 26 (d) and (e) of subdivision six of such section, relating to the treat- 27 ment of inmates in state correctional facilities are applicable to 28 inmates confined in county jails; except that the report required by 29 paragraph (f) of subdivision six of such section shall be made to a 30 person designated to receive such report in the rules and regulations of 31 the state commission of correction, or in any county or city where there 32 is a department of correction, to the head of such department. 33 § 6. Subdivision 1 of section 500-k of the correction law, as amended 34 by chapter 93 of the laws of 2021, is amended to read as follows: 35 1. Subdivisions five [and], six and seven of section one hundred thir- 36 ty-seven of this chapter, except paragraphs (d) and (e) of subdivision 37 six of such section, relating to the treatment of inmates in state 38 correctional facilities are applicable to inmates confined in county 39 jails; except that the report required by paragraph (f) of subdivision 40 six of such section shall be made to a person designated to receive such 41 report in the rules and regulations of the state commission of 42 correction, or in any county or city where there is a department of 43 correction, to the head of such department. 44 § 7. This act shall take effect immediately; provided, however, that 45 the amendments to section 500-b of the correction law made by section 46 four of this act shall not affect the repeal of such section and shall 47 be deemed repealed therewith; provided, further, that section six of 48 this act shall take effect on the same date and in the same manner as 49 chapter 93 of the laws of 2021, takes effect.