The above-referenced bills would allow county jails to house inmates who identify as “transgender” in opposite-sex jail facilities if doing so would promote the safety of those inmates. The bills contain similar provisions regarding intersex inmates (inmates who possess both male and female biological characteristics).
New Yorkers for Constitutional Freedoms takes no position on the provisions of these bills that relate to intersex inmates. However, the provisions regarding “transgender” inmates are objectionable. First, it is difficult to conceive of any scenario in which a biological female would be safer in a jail facility for men than she would be in a jail facility for women. Second, while a biological male might well be safer in a women’s facility than he would be in a men’s facility, his presence in a women’s facility would create inherent privacy and safety concerns for female inmates. It is ironic that the sponsor memorandum in support of BillS.3261-Sepulveda/A.5108-Davila refers to federal law regarding prison rape. Housing male inmates in a women’s jail facility would open the door to exactly the same conduct that the sponsors wish to prevent.
If a given inmate has safety concerns due to that inmate’s gender identity or expression, the jail should take appropriate steps to protect the inmate; for instance, that inmate could be placed into protective custody. It is unnecessary to take the drastic step of housing an inmate who identifies as “transgender,” but retains his or her original anatomy, in an opposite-sex facility. The Legislature must not promote the safety of “transgender” inmates in a manner that places the safety of female inmates at greater risk.
The Legislature should reject this proposed piece of legislation.