California Transgender Law

California Transgender Law - Oakland Criminal Lawyer

California Transgender Law

In 2021, Senate Bill 132, known as the Transgender Respect, Agency and Dignity Act, went into effect in the state of California. Under this new law, the California Department of Corrections and Rehabilitation (CDCR) must ask correctional institution inmates to specify their gender identity, and in particular, if the inmate identifies as transgender, nonbinary, or intersex. Each inmate must then be housed in a correctional facility that aligns with their gender preference.

Why Did California Pass This Act?

The United States Supreme Court has recognized that transgender individuals who are incarcerated are especially vulnerable to sexual harassment and sexual abuse. Furthermore, it has determined that disregarding known risks to a transgender woman constitutes deliberate indifference, violating the federal constitution.

California has based its new law on this recognition, as well as on research that found that the rate of sexual assault of transgender women in California’s state prisons was 13 times higher than for men living in the same prisons. Furthermore, transgender men in California’s state prisons are also sexually abused and face gender-based violence, discrimination, and harassment in high numbers.

Amendments to the new law state, in part: “Gender transition is deeply personal experience that may involve some combination of social transition, legal transition, medical transition, or none of these. Some transgender, nonbinary, and intersex people experience gender dysphoria that requires medical treatment, while others do not experience gender dysphoria. Due to safety concerns, inconsistent medical and mental health care, insufficient education and resources, and other factors, incarceration often serves as a barrier to gender transition. Regardless of the ways in which a person chooses or is able to express their gender or to take medical, social, or legal transition steps, they deserve respect, agency and dignity.”

Furthermore, under the Transgender Respect, Agency and Dignity Act, all correctional officers must identify inmates according to their gender identity, using their preferred names and pronouns. Searches must be performed based upon the inmate’s search preference. If an inmate ever raises concerns about their safety or their health, the CDCR is required under this new law to reassess that inmate’s housing situation.

California’s new law is contrary to that of most states, which house inmates according to the gender they were assigned at birth. Other jurisdictions in addition to California that now house inmates based upon their own gender identity include Rhode Island, Massachusetts, New York City, and Connecticut.

Under What Conditions Can a Facility Deny an Inmate’s Request?

There are some situations in which CDCR can deny the request of a preferred prison based upon an inmate’s gender identity, however. If there are management or security concerns surrounding the inmate, such a request may be denied. If denied, the state must provide the inmate with a written statement that explains their decision. They must also give the inmate a meaningful opportunity to object to the decision.

According to a report in the Los Angeles Times, from January 1, 2021, when the act took effect, to April 5, 2021, when the article was published, the state received 261 requests for transfer from inmates.

Approximately 1129 inmates (just over one percent of California’s prison population) identify as transgender, nonbinary or intersex. CDCR officials have said that, since gender identity is self-reported, some inmates have made false claims since January 1, wishing to be transferred to a women’s prison. This has slowed the process of transferring those who truly are transgender, nonbinary or intersex to appropriate facilities. CDCR has stated, however, that they will evaluate any and all requests that they receive submitted by inmates for gender-based housing.