Governor Gavin Newsom signed into law Saturday a bill to require the state to house transgender inmates in prisons based on their gender identity.
Senate Bill 132, authored by Senator Scott Wiener (D-San Francisco) would specifically have the California Department of Corrections and Rehabilitation (CDCR) ask every incoming prisoner in private if they identify themselves as transgender, nonbinary, or intersex and what gender pronouns they would prefer. The prisoner would then be searched according to the search policy of their gender identity and would allow them to request to be housed in either a men’s facility or women’s facility based on how they identify themselves. Requests cannot be denied solely because of anatomy or sexual orientation.
SB 132 will also prohibit prison staff from calling prisoners by an unwanted gender pronoun.
The bill would also prohibit any punishment for prisoners who refuse to answer the question and also prohibit prison staff from not using the correct gender pronoun for prisoners who have identified themselves as a specific gender. The CDCR could also deny the prison request over “management or security concerns,” but would have to give a statement as to why it was being denied and also have the inmate have a chance to appeal the decision.
Senator Wiener wrote SB 132 last year as a way to change the current process for incarcerating transgender prisoners. The CDCR currently incarcerates prisoners based on their gender at birth and doesn’t always separate prisoners who transitioned genders, potentially endangering those individuals who transitioned yet were not sent to a prison that reflected their current gender.
“It’s just a false narrative about transgender people and about transgender women in particular that they’re somehow not really women and are just trying to scam their way into women’s bathrooms or facilities in order to do bad things,” explained Senator Wiener earlier this month. “Overwhelmingly the people who are being victimized are trans people.”
“SB 132 is life-saving legislation that will protect trans people in prison, particularly trans women who are subject to high levels of assault and harassment in men’s facilities,” Senator Wiener added on Sunday.
“Transgender people should not be forced into isolation because they aren’t protected where they are forced to live. They should be able live by their gender, and SB 132 will allow for that outcome.”
Prisoner violence protection, stringent screening processes
While the signing was celebrated by prison reform and transgender advocates, others, such as prison experts, have said that the new law makes sense.
“Like this or not, we now live in a world with more and more people undergoing gender reassignment,” prison consultant Richard Battel told the Globe. “And we would have needed a new law at some point to help clarify things and assign people like this.”
“It’s not a matter of prisoners having their feelings hurt for being called a “he” instead of a “she.” This is about violence, real violence, happening against prisoners solely because of their gender choice. There have been cases of transitioned males into females, complete with new sexual organs, being raped in prison. That goes against safety, health, and wellness, as well as being inherently wrong to do.”
“And under this new law, there will be a screening process. It says you can’t just use existing sexual organs for a placement or transfer decision, but you can sure as hell use their prior histories and other evidence. If someone who has been charged with assault and rape before but is also now identifying as a woman to get placed in a woman’s prison, they aren’t just going to allow that. They’ll see those felonies and keep them in the men’s prison as they’ll deem them a danger to female prisoners.”
“That’s more of a heavy handed example, but you see how rigorous this decision making process will be. They want to keep violence against a prisoner, but they also don’t want to transfer that prisoner to a place where they can cause violence either. This is primarily to help non-violent prisoners without a history of violence who happen to identify as another gender go to a correct prison.”
“At the end of the day, prisoners are still being incarcerated for their crimes and justice is being served. The only difference is that a few are in another prison now.”
‘This bill is a recipe for complete chaos’
Both the Assembly and Senate votes were split based on party lines, with the Senate vote being especially close last month 29-10. Many in opposition to SB 132 said that the law would only victimize members of the opposite sex in prisons and would only lead to more problems.
“Biological sex is not arbitrary,” California Family Council President Jonathan Keller said in a statement last year. “The legislature is increasing dangers for both inmates and correctional officers by attempting to let prisoners self-determine their sex. Even in prison, males and females are guaranteed a constitutional right to privacy. The legislature should not victimize prisoners, especially biological women, by requiring them to allow members of the opposite sex into facilities that are currently female-only or male-only. This bill is a recipe for complete chaos in our state’s correctional facilities.”
California now joins Connecticut, Massachusetts, and Rhode Island, and New York City, in incarcerating prisoners based on gender identity.
SB 132 came into effect immediately after signing.
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