Senate Bill S2809

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2809
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced by Sens. SEPULVEDA, BIAGGI, HOYLMAN, JACKSON, MYRIE, RAMOS --
   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  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
 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
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03291-01-1

 S. 2809                             2
 
 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.
   §  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.