DOES STATE LAW PERMIT MALE INMATES IN WOMEN’S PRISON?
Several States have passed their own laws expressly permitting a lower standard for cross sex housing in prison than the PREA Standards.
Generally, this means that there is a presumption of housing according to “gender identity” and the burden is on the prison system to articulate the reason for denial.
Other States have laws which are not prison-specific, but generally prohibit “gender identity” discrimination in public facilities and accommodations. Several of these States have, either on their own initiative or through litigation settlements, established policies with a default to housing according to “gender identity.”
Additionally, several municipalities have instituted similar rules. Because of the PREA Standards, however, many states other than the examples provided here house male inmates in the women’s prison based on “gender identity.”
Examples of state laws which explicitly provide for cross sex prison housing
An individual incarcerated by the Department of Corrections and Rehabilitation who is transgender, nonbinary, or intersex, regardless of anatomy, shall: …
Be housed at a correctional facility designated for men or women based on the individual’s preference …
If the Department … has management or security concerns with an incarcerated individual’s … preferred housing placement … the Secretary of the Department … shall … certify in writing a specific and articulable basis why the department is unable to accommodate that … housing preference.
Bill Text – SB-132 Corrections (ca.gov)
An inmate who has a birth certificate, passport or driver’s license that reflects his or her gender identity or who can meet established standards for obtaining such a document to confirm the inmate’s gender identity shall presumptively be placed in a correctional institution with inmates of the gender consistent with the inmate’s gender identity. Such presumptive placement may be overcome by a demonstration by the Commissioner of Correction, or the commissioner’s designee, that the placement would present significant safety, management or security problems. In making determinations pursuant to this section, the inmate’s views with respect to his or her safety shall be given serious consideration by the Commissioner of Correction, or the commissioner’s designee.
Gender affirmation. Have the person’s consistently held gender identity respected and acknowledged, irrespective of anatomy or physique. Housing placements and search practices must be consistent with the person’s consistently held gender identity except when such placement or search would present significant management or security problems to the correctional or detention facility or threaten the health and safety of the person.
A prisoner of a correctional institution, jail or house of correction that has a gender identity, as defined in section 7 of chapter 4, that differs from the prisoner’s sex assigned at birth, with or without a diagnosis of gender dysphoria or any other physical or mental health diagnosis, shall be: … housed in a correctional facility with inmates with the same gender identity; provided further, that the placement shall be consistent with the prisoner’s request, unless the commissioner, the sheriff or a designee of the commissioner or sheriff certifies in writing that the particular placement would not ensure the prisoner’s health or safety or that the placement would present management or security problems.
General Law – Part I, Title XVIII, Chapter 127, Section 32A (malegislature.gov)
Examples of states with policies/directives expressly permitting males to be housed in women’s prison
Each Plaintiff class member who has requested transfer to a facility matching his or her expressed gender (female facility for transgender women, male facility for transgender men) shall be evaluated for transfer within 120 days of the date of this Order, with inmates being evaluated in chronological order of the date of the inmate’s original request for transfer. Each class member so evaluated and denied transfer shall be promptly provided with a written explanation of each reason for the denial and allowed to request another evaluation for transfer within 180 days thereafter.
New Jersey’s implementation of a free-for-all 2021 policy pursuant to a settlement agreement was a (predictable) disaster. After the transfer to the sole women’s prison of approximately two dozen men (some of whom had committed extraordinarily violent crimes against women and girls and remained a danger to others even while incarcerated at the men’s prison) and reports of multiple pregnancies, the policy was modified several months ahead of the planned review schedule. While the new policy does allow for more discretion in housing placement determinations by the NJDOC, for example, taking into account whether cross-sex placement would “significantly impact the safety of others in the potential receiving facility” (which was not a permitted factor for consideration in the earlier policy), it still provides for “presumptive placement” based on “gender identity.”
Washington State has a series of policy documents and intake forms that circle back to one another, but the most basic statement of their policy is:
The Department has established procedures to ensure equitable treatment of transgender, intersex, and/or gender non-conforming individuals when determining housing, classification, programming, and supervision.
These policies have been interpreted to permit multiple male murderers (including a serial killer of prostitutes) and at least one sexual abuser to be housed in the women’s prison. Upon transfer, one of these male inmates is reported to have raped a female inmate. DOC employee reports men are claiming to be women to transfer prisons (mynorthwest.com)
Example of a municipality permitting males to be housed in women’s prisons
New York City
[Department of Corrections] must provide housing to inmates consistent with their gender identity unless the outcome of an individualized safety assessment as required by The Prison Rape Elimination Act (PREA) or the expressed preferences and safety concerns of the inmate require alternate housing.
Mayor de Blasio Announces DOC Will House Incarcerated Individuals According to Gender Identity | City of New York (nyc.gov); eo_16.pdf (nyc.gov)