California Bill to Allow Prison Inmates To Decide Their Own Sex

A bill by San Francisco Senator Scott Wiener would allow prison inmates to decide their own sex, how they want to be addressed (Mr. Miss, Mrs. Ms.), and would require California Department of Corrections and Rehabilitation officials to refer to them by that chosen sex and, and house them with other inmates of the same sex.

LGBT Caucus Chairman Senator Scott Wiener (D-San Francisco), says SB 132 is necessary to protect transgender identified people from “physical assaults,” and to preserve their “basic dignity,” and “respect.”

This is a slippery slope as Wiener’s bill does not address the privacy rights, respect and dignity concerns of biological female inmates who would have to share living space with any male inmate identifying as a woman. Additionally, the threat of physical assaults against biological females is real.

“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,” California Family Council President Jonathan Keller said. “This bill is a recipe for complete chaos in our state’s correctional facilities.”

“Existing law requires CDCR to consider certain factors in determining housing assignments in order to prevent violence and promote inmate safety. Additionally, the Prison Rape Elimination Act establishes a zero-tolerance standard for the incidence of prison rape in prisons in the United States, provides for the development and implementation of national standards for the detection, prevention, reduction, and punishment of prison rape and mandates the review and analysis of the incidence and effects of prison rape,” bill analysis states.

SB 132 may have a First Amendment issue when it comes to the rights of correction officers and corrections contractors, by requiring them to use certain language regarding an inmate’s perceived identity. “Require staff and contractors to consistently use the gender pronoun and honorific an individual has specified in all verbal and written communications with or regarding that individual that involve the use of a pronoun or honorific,” the bill analysis states.

SB 132 failed to get out of the Senate Appropriations Committee initially because of the significant fiscal impact:

 Staff training: One-time, potentially-major costs ranging from the high hundreds of thousands of dollars to the low millions of dollars to develop and implement staff training consistent with this measure on a statewide basis. (General Fund)

 Information system update: Unknown one-time costs, potentially in the low-to-mid hundreds of thousands of dollars, to update the Strategic Offender Management System and/or the Electronic Record Management System to capture inmates’ gender identity, preferred gender pronoun, honorific, preferred gender identity of the officer who may conduct a lawful search of the person’s body, and any other data point required by SB 132. (General Fund)

 Identification cards: Costs in the low hundreds of thousands of dollars for procuring and issuing new identification cards for the inmate population that include gender markers consistent with a person’s gender identity. Currently, CDCR does not include a gender marker on identification issued to inmates. (General Fund)

 Transfer committee and process: Unknown, potentially-significant one-time costs in the hundreds of thousands of dollars to establish a new housing placement committee and process for safely housing inmates in facilities consistent with their gender identity. (General Fund)

 Regulation and manual revision: One-time costs of around $150,000 to update relevant regulations (Title 15) and the Department Operations Manual to reflect the changes that would be made by this measure, such as the requirement that staff and contractors address inmates with their preferred gender pronoun and honorifics. (General Fund)

Yet only 10 days later, sailed out of Appropriations with virtually no changes. A Capitol insider suggested this was in exchange for killing Wiener’s SB 50 housing bill which would have ordered more affordable housing and apartment construction around train stations and public transit, and conversion of single-family homes into apartments in suburbs.

Support for SB 132 comes from:

ACLU of California (co-source), Equality California (co-source), Lambda Legal (co-source), TGI Justice Project (co-source), Transgender Law Center (co-source), TransLatin@ (co-source), ACCESS Women’s Health Justice, API Equality-LA, API Equality-Northern California, California Civil Liberties Advocacy, Californians United for a Responsible Budget, Conference of California Bar Associations, Ella Baker Center for Human Rights, Empowering Pacific Islander Communities, Initiate Justice Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Services for Prisoners with Children, Medina Orthwein LLP, National Center for Lesbian Rights, Root & Rebound, St. James Infirmary, Tides Advocacy, Women’s Foundation of California.