S T A T E O F N E W Y O R K
________________________________________________________________________
5257--A
2019-2020 Regular Sessions
I N A S S E M B L Y
February 8, 2019
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Introduced by M. of A. ROZIC, REYES, QUART, WEPRIN, BRONSON, GOTTFRIED,
GLICK, SEAWRIGHT, EPSTEIN, SIMON, HEVESI, MOSLEY, SIMOTAS, ORTIZ,
BLAKE -- read once and referred to the Committee on Correction --
recommitted to the Committee on Correction in accordance with Assembly
Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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:
Section 1. Section 137 of the correction law is amended by adding a
new subdivision 7 to read as follows:
7. ANY INCARCERATED PERSON IN A CORRECTIONAL FACILITY WHO HAS A GENDER
IDENTITY THAT DIFFERS FROM HIS OR HER ASSIGNED SEX AT BIRTH OR HAS A
DIAGNOSIS OF GENDER DYSPHORIA, AS SET FORTH IN THE MOST RECENT EDITION
OF THE AMERICAN PSYCHIATRIC ASSOCIATION'S "DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS", OR WHO SELF-IDENTIFIES AS TRANSGENDER OR
GENDER NONCONFORMING SHALL:
(A) BE ADDRESSED BY CORRECTIONAL OFFICERS AND STAFF IN A MANNER THAT
MOST CLOSELY ALIGNS WITH SUCH PERSON'S GENDER IDENTITY;
(B) HAVE ACCESS TO COMMISSARY ITEMS, CLOTHING, PERSONAL PROPERTY,
PROGRAMMING AND EDUCATIONAL MATERIALS THAT MOST CLOSELY ALIGN WITH SUCH
PERSON'S GENDER IDENTITY;
(C) HAVE 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 PERSON REQUESTS OTHERWISE OR UNDER
EXIGENT CIRCUMSTANCES; AND
(D) HAVE THE RIGHT TO MEDICAL AND MENTAL HEALTH CARE AS NEEDED AND AS
APPROPRIATE FOR HIS OR HER GENDER IDENTITY.
§ 2. The correction law is amended by adding a new section 72-c to
read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01372-03-0
A. 5257--A 2
§ 72-C. PLACEMENT OF INMATES BASED ON GENDER IDENTITY. 1. AN INCARCER-
ATED PERSON WHO HAS A GENDER IDENTITY THAT DIFFERS FROM HIS OR HER
ASSIGNED SEX AT BIRTH OR WHO HAS A DIAGNOSIS OF GENDER DYSPHORIA OR WHO
SELF-IDENTIFIES AS TRANSGENDER OR GENDER NONCONFORMING PURSUANT TO
SUBDIVISION SEVEN OF SECTION ONE HUNDRED THIRTY-SEVEN OF THIS CHAPTER
SHALL BE PRESUMPTIVELY PLACED IN A CORRECTIONAL FACILITY WITH PERSONS OF
THE GENDER THAT MOST CLOSELY ALIGNS WITH SUCH PERSON'S GENDER IDENTITY
UNLESS THE PERSON OPTS OUT OF SUCH PLACEMENT. THE INCARCERATED PERSON
SHALL BE PERMITTED TO LEAVE SUCH PLACEMENT AND TRANSFER TO A FACILITY
HOUSING INDIVIDUALS OF HIS OR HER ASSIGNED SEX AT BIRTH AT ANY TIME. ANY
SUCH PERSON WHO HAS OPTED OUT OF SUCH PRESUMPTIVE PLACEMENT OR WHO
LEAVES SUCH PLACEMENT MAY AGAIN REQUEST PLACEMENT IN A CORRECTIONAL
FACILITY WITH PERSONS OF THE GENDER THAT MOST CLOSELY ALIGNS WITH HIS OR
HER GENDER IDENTITY AT ANY TIME. SUCH PRESUMPTIVE PLACEMENT MAY BE
OVERCOME BY A DETERMINATION IN WRITING BY THE COMMISSIONER OR THE
COMMISSIONER'S DESIGNEE THAT THERE IS CLEAR AND CONVINCING EVIDENCE THAT
SUCH PERSON PRESENTS A CURRENT DANGER OF COMMITTING GENDER-BASED
VIOLENCE AGAINST OTHERS. IN MAKING SUCH A DETERMINATION, THE COMMISSION-
ER OR HIS OR HER DESIGNEE SHALL FURTHER CONSIDER WHETHER SUCH PERSON CAN
BE SAFELY HOUSED IN ANOTHER FACILITY OR HOUSING UNIT THAT MOST CLOSELY
ALIGNS WITH THE PERSON'S GENDER IDENTITY.
2. A TRANSGENDER INCARCERATED PERSON EXPERIENCING HARASSMENT, VIOLENCE
OR THREATS OF VIOLENCE DUE TO HIS OR HER GENDER IDENTITY SHALL NOT BE
PLACED IN PROTECTIVE CUSTODY FOR MORE THAN THIRTY DAYS AS A RESULT OF
SUCH HARASSMENT, VIOLENCE OR THREATS OF VIOLENCE, AND MUST BE HOUSED IN
A LEAST-RESTRICTIVE SETTING WHERE HE OR SHE WILL BE SAFE FROM SUCH
BEHAVIOR.
§ 3. Section 500-b of the correction law is amended by adding a new
subdivision 14 to read as follows:
14. 1. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, ANY INCARCERAT-
ED PERSON DETERMINED TO HAVE A GENDER IDENTITY DIFFERENT FROM HIS OR HER
ASSIGNED SEX AT BIRTH OR WHO HAS A DIAGNOSIS OF GENDER DYSPHORIA OR WHO
IS SELF-IDENTIFIED AS TRANSGENDER OR GENDER NONCONFORMING PURSUANT TO
SUBDIVISION SEVEN OF SECTION ONE HUNDRED THIRTY-SEVEN OF THIS CHAPTER
SHALL BE PRESUMPTIVELY PLACED IN A FACILITY HOUSING UNIT WITH INCARCER-
ATED INDIVIDUALS OF THE GENDER MOST CLOSELY ALIGNED WITH SUCH PERSON'S
GENDER IDENTITY. SUCH PRESUMPTIVE PLACEMENT MAY BE OVERCOME BY A WRITTEN
DETERMINATION BY THE CHIEF ADMINISTRATIVE OFFICER, OR THE CHIEF ADMINIS-
TRATIVE OFFICER'S DESIGNEE, THAT THE PLACEMENT WOULD PRESENT SIGNIFICANT
SAFETY, MANAGEMENT OR SECURITY PROBLEMS.
2. A TRANSGENDER INCARCERATED INDIVIDUAL EXPERIENCING HARASSMENT,
VIOLENCE OR THREATS OF VIOLENCE DUE TO HIS OR HER GENDER IDENTITY SHALL
NOT BE PLACED IN PROTECTIVE CUSTODY FOR MORE THAN THIRTY DAYS AS A
RESULT OF SUCH HARASSMENT, VIOLENCE OR THREATS OF VIOLENCE, AND MUST BE
HOUSED IN A LEAST-RESTRICTIVE SETTING WHERE HE OR SHE WILL BE SAFE FROM
SUCH BEHAVIOR.
§ 4. Section 500-k of the correction law, as amended by chapter 2 of
the laws of 2008, is amended to read as follows:
§ 500-k. Treatment of inmates. Subdivisions five [and], six AND SEVEN
of section one hundred thirty-seven of this chapter, except paragraphs
(d) and (e) of subdivision six of such section, relating to the treat-
ment of inmates in state correctional facilities are applicable to
inmates confined in county jails; except that the report required by
paragraph (f) of subdivision six of such section shall be made to a
person designated to receive such report in the rules and regulations of
A. 5257--A 3
the state commission of correction, or in any county or city where there
is a department of correction, to the head of such department.
§ 5. This act shall take effect immediately; provided, however, that
the amendments to section 500-b of the correction law made by section
three of this act shall not affect the repeal of such section and shall
be deemed repealed therewith.