New York Bill Would Allow Male Convicts to Self-ID into Women’s Prisons

A New York state bill introduced into the assembly would allow biological males to be incarcerated in facilities that accord with their “self-attested gender identity” regardless of their “sex assigned at birth.” The bill follows a trend of similar legislation introduced in other states including California, Washington, and Maryland.

New York Assembly Bill 7001, which enacts the “gender identity respect, dignity and safety act,” does not require an incarcerated male to undergo surgery or be on hormone treatment to qualify for placement in a women’s prison, even if he has been convicted of rape or other acts of violence against women: “Placement shall not be conditioned upon the incarcerated individual's history of, consent to, intention to seek, or refusal to undergo any treatment or intervention regarding their sex characteristics or gender identity.”

The bill also grants incarcerated persons the right to be “addressed by correctional officers and staff in a manner that most closely aligns with such person's gender identity, including the name and pronouns specified by that person.”

A male who identifies as a woman may “transfer to a facility housing individuals of their assigned sex at birth at any time” but a female inmate does not have the right to refuse housing with a male.

Incarcerated individuals are also granted the right to be “searched by a correctional officer or staff member of the gender most closely aligned with such person's gender identity, unless the incarcerated individual requests otherwise.” It seems that the only way out for a woman who does not want to search a male body is to declare herself a man.

While the bill allows for transfer to a women’s prison to be denied if there is “clear and convincing evidence” that an incarcerated person “presents a current danger of committing gender-based violence against others,” the presence of intact male genitalia is forbidden as a reason to deny transfer. Among the “discriminatory reasons” for denial of transfer are “past or current sex characteristics, including chromosomes, genitals, gonads, other internal or external reproductive anatomy, secondary sex characteristics, or hormone function of the person whose housing placement is at issue…”

A female inmate’s fear for her safety is also not a valid reason to deny transfer. A typo-laden statement in the bill asserts that any denial of housing based on “complaints of other incarcerated individual's who do not wish to be housed with a non-cisgender or intersex person due to that person's gender identity identity or sex characteristics” constitutes a “discriminatory” reason to reject a request.

Furthermore, safety provisions have failed to protect vulnerable female inmates who are housed with males. Washington’s Department of Corrections insists that it “does not place individuals into the female or male facilities, simply because they have stated they are one gender or the other” and that “multidisciplinary teams must review all requests, with the Headquarters Multidisciplinary team making a final placement determination.” Nonetheless, there have been multiple allegations of sexual assault by male inmates against females in Washington women’s facilities.

While Washington was already housing male inmates with women before it introduced a bill to conceal information about an individual’s sex, gender, or genital status, New York’s bill combines both those goals in a single piece of legislation by stating that records are to be concealed which would reveal an incarcerated individual’s “sex characteristics or their transgender, gender nonconforming, nonbinary, or intersex status, or that would otherwise reveal that their gender identity differs from their assigned sex at birth.” However, aggregate data would still be available, as in the Washington bill.

The New York bill also prevents the department of corrections from “requiring documentation to confirm a person’s gender identity, sex characteristics, or intersex status.”

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