For far too long transgender, gender-nonconforming, and intersex people have been subjected to various forms of discrimination and victimization. This has been particularly prevalent for those who have been incarcerated. Even the United States Supreme Court has recognized that transgender people are especially vulnerable to sexual abuse and harassment.
Fortunately, in addition to being at the forefront of Criminal Justice Reform in general, by passing the historic SB 132 or the Transgender Respect, Agency, and Dignity Act, the California legislature has finally decided to act in addressing the issues that transgender, gender-nonconforming, and intersex people face while incarcerated. SB 132 was signed into law by Governor Newsom on September 26, 2020, and came into effect on January 1, 2021. The law was designed to ensure that transgender, gender-nonconforming, and intersex people are provided with a safe, humane, and dignified environment while incarcerated.
According to the findings in the bill, the rate of sexual assault in California’s prisons is 13 times higher for transgender women than for men in the same prisons. Moreover, another survey showed that, nationwide, 40 percent of incarcerated transgender individuals reported experiencing sexual victimization, compared to 4 percent for other incarcerated people. Furthermore, another survey showed that 38 percent of transgender women reported being harassed by correctional officers or staff.
Some of the key provisions of SB 132 require that during the initial intake process and in a private setting, the California Department of Corrections and Rehabilitation (CDCR) record the individual’s self-reported gender identity, whether the individual identifies as transgender, nonbinary, or intersex, and their preferred gender pronoun and honorific. The new law prohibits the CDCR from disciplining a person for refusing to answer or for not disclosing complete information in response to these questions. Some other notable provisions in the law include:
- Incarcerated individuals who are transgender, nonbinary, or intersex, have to be housed in a correctional facility designated for men or women based on the individual’s preference.
- Furthermore, if CDCR has management or security concerns with an individual’s search preference or preferred housing placement, before denying it, the CDCR Secretary, or his or her designee, must certify in writing a specific and articulable reason for why the department is unable to accommodate that search or housing preference.
- Importantly, under SB 132, CDCR cannot deny a search preference or housing placement based on any discriminatory reason, including the anatomy or sexual orientation of the incarcerated individual, or a factor present among other people incarcerated at their preferred type of institution.
There has been a lot of praise for SB 132, and the law has been an important step in providing a particularly vulnerable class of people with some dignity and protection. It is yet to be seen how successfully the CDCR implements the new law, however, SB 132 does provide a glimmer of hope for incarcerated transgender, nonbinary, and intersex people.
The law has not been without controversy and has come under fire by conservative groups and activists. On November 17, 2021, the Women’s Liberation Front filed a lawsuit on behalf of four incarcerated women asking the court to overturn SB 132 and declare it as unconstitutional. The lawsuit seems to be based on bogus rational and wild allegations, and the people behind the lawsuit do have a history of preventing transgender people from receiving basic rights. While the lawsuit is ongoing, SB 132 continues to be in effect and continues to provide a way for transgender people to feel safer and have the chance to be who they are while incarcerated.
If you believe that you or a loved one has been the subject of official misconduct, discrimination, or institutional sexual abuse or any type of sexual misconduct and would like to know more about your legal options, you can contact us today locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.
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