S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    691
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (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:
 
   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:
   § 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD03291-01-1

 A. 691                              2
 
 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
 the state commission of correction, or in any county or city where there
 is a department of correction, to the head of such department.

 A. 691                              3
 
   § 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.