S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5257--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 8, 2019
                                ___________
 
 Introduced  by M. of A. ROZIC, REYES, QUART, WEPRIN, BRONSON, GOTTFRIED,
   GLICK, SEAWRIGHT, EPSTEIN,  SIMON,  HEVESI,  MOSLEY,  SIMOTAS,  ORTIZ,
   BLAKE  --  read  once  and  referred to the Committee on Correction --
   recommitted to the Committee on Correction in accordance with Assembly
   Rule  3,  sec.  2  --  committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN  ACT  to  amend  the correction law, in relation to the treatment and
   placement of incarcerated people based upon gender identity
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  137 of the correction law is amended by adding a
 new subdivision 7 to read as follows:
   7. ANY INCARCERATED PERSON IN A CORRECTIONAL FACILITY WHO HAS A GENDER
 IDENTITY THAT DIFFERS FROM HIS OR HER ASSIGNED SEX AT  BIRTH  OR  HAS  A
 DIAGNOSIS  OF  GENDER DYSPHORIA, AS SET FORTH IN THE MOST RECENT EDITION
 OF THE AMERICAN PSYCHIATRIC ASSOCIATION'S  "DIAGNOSTIC  AND  STATISTICAL
 MANUAL  OF  MENTAL  DISORDERS", OR WHO SELF-IDENTIFIES AS TRANSGENDER OR
 GENDER NONCONFORMING SHALL:
   (A) BE ADDRESSED BY CORRECTIONAL OFFICERS AND STAFF IN A  MANNER  THAT
 MOST CLOSELY ALIGNS WITH SUCH PERSON'S GENDER IDENTITY;
   (B)  HAVE  ACCESS  TO  COMMISSARY  ITEMS, CLOTHING, PERSONAL PROPERTY,
 PROGRAMMING AND EDUCATIONAL MATERIALS THAT MOST CLOSELY ALIGN WITH  SUCH
 PERSON'S GENDER IDENTITY;
   (C)  HAVE  THE RIGHT TO BE SEARCHED BY A CORRECTIONAL OFFICER OR STAFF
 MEMBER OF THE GENDER MOST CLOSELY  ALIGNED  WITH  SUCH  PERSON'S  GENDER
 IDENTITY,  UNLESS  THE  INCARCERATED  PERSON REQUESTS OTHERWISE OR UNDER
 EXIGENT CIRCUMSTANCES; AND
   (D) HAVE THE RIGHT TO MEDICAL AND MENTAL HEALTH CARE AS NEEDED AND  AS
 APPROPRIATE FOR HIS OR HER GENDER IDENTITY.
   §  2.  The  correction  law is amended by adding a new section 72-c to
 read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01372-03-0

 A. 5257--A                          2
 
   § 72-C. PLACEMENT OF INMATES BASED ON GENDER IDENTITY. 1. AN INCARCER-
 ATED PERSON WHO HAS A GENDER IDENTITY  THAT  DIFFERS  FROM  HIS  OR  HER
 ASSIGNED  SEX AT BIRTH OR WHO HAS A DIAGNOSIS OF GENDER DYSPHORIA OR WHO
 SELF-IDENTIFIES AS  TRANSGENDER  OR  GENDER  NONCONFORMING  PURSUANT  TO
 SUBDIVISION  SEVEN  OF  SECTION ONE HUNDRED THIRTY-SEVEN OF THIS CHAPTER
 SHALL BE PRESUMPTIVELY PLACED IN A CORRECTIONAL FACILITY WITH PERSONS OF
 THE GENDER THAT MOST CLOSELY ALIGNS WITH SUCH PERSON'S  GENDER  IDENTITY
 UNLESS  THE  PERSON OPTS OUT OF SUCH PLACEMENT.  THE INCARCERATED PERSON
 SHALL BE PERMITTED TO LEAVE SUCH PLACEMENT AND TRANSFER  TO  A  FACILITY
 HOUSING INDIVIDUALS OF HIS OR HER ASSIGNED SEX AT BIRTH AT ANY TIME. ANY
 SUCH  PERSON  WHO  HAS  OPTED  OUT  OF SUCH PRESUMPTIVE PLACEMENT OR WHO
 LEAVES SUCH PLACEMENT MAY AGAIN  REQUEST  PLACEMENT  IN  A  CORRECTIONAL
 FACILITY WITH PERSONS OF THE GENDER THAT MOST CLOSELY ALIGNS WITH HIS OR
 HER  GENDER  IDENTITY  AT  ANY TIME.   SUCH PRESUMPTIVE PLACEMENT MAY BE
 OVERCOME BY A DETERMINATION  IN  WRITING  BY  THE  COMMISSIONER  OR  THE
 COMMISSIONER'S DESIGNEE THAT THERE IS CLEAR AND CONVINCING EVIDENCE THAT
 SUCH  PERSON  PRESENTS  A  CURRENT  DANGER  OF  COMMITTING  GENDER-BASED
 VIOLENCE AGAINST OTHERS. IN MAKING SUCH A DETERMINATION, THE COMMISSION-
 ER OR HIS OR HER DESIGNEE SHALL FURTHER CONSIDER WHETHER SUCH PERSON CAN
 BE SAFELY HOUSED IN ANOTHER FACILITY OR HOUSING UNIT THAT  MOST  CLOSELY
 ALIGNS WITH THE PERSON'S GENDER IDENTITY.
   2. A TRANSGENDER INCARCERATED PERSON EXPERIENCING HARASSMENT, VIOLENCE
 OR  THREATS  OF  VIOLENCE DUE TO HIS OR HER GENDER IDENTITY SHALL NOT BE
 PLACED IN PROTECTIVE CUSTODY FOR MORE THAN THIRTY DAYS AS  A  RESULT  OF
 SUCH  HARASSMENT, VIOLENCE OR THREATS OF VIOLENCE, AND MUST BE HOUSED IN
 A LEAST-RESTRICTIVE SETTING WHERE HE OR  SHE  WILL  BE  SAFE  FROM  SUCH
 BEHAVIOR.
   §  3.  Section  500-b of the correction law is amended by adding a new
 subdivision 14 to read as follows:
   14. 1. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, ANY INCARCERAT-
 ED PERSON DETERMINED TO HAVE A GENDER IDENTITY DIFFERENT FROM HIS OR HER
 ASSIGNED SEX AT BIRTH OR WHO HAS A DIAGNOSIS OF GENDER DYSPHORIA OR  WHO
 IS  SELF-IDENTIFIED  AS  TRANSGENDER OR GENDER NONCONFORMING PURSUANT TO
 SUBDIVISION SEVEN OF SECTION ONE HUNDRED THIRTY-SEVEN  OF  THIS  CHAPTER
 SHALL  BE PRESUMPTIVELY PLACED IN A FACILITY HOUSING UNIT WITH INCARCER-
 ATED INDIVIDUALS OF THE GENDER MOST CLOSELY ALIGNED WITH  SUCH  PERSON'S
 GENDER IDENTITY. SUCH PRESUMPTIVE PLACEMENT MAY BE OVERCOME BY A WRITTEN
 DETERMINATION BY THE CHIEF ADMINISTRATIVE OFFICER, OR THE CHIEF ADMINIS-
 TRATIVE OFFICER'S DESIGNEE, THAT THE PLACEMENT WOULD PRESENT SIGNIFICANT
 SAFETY, MANAGEMENT OR SECURITY PROBLEMS.
   2.    A  TRANSGENDER  INCARCERATED INDIVIDUAL EXPERIENCING HARASSMENT,
 VIOLENCE OR THREATS OF VIOLENCE DUE TO HIS OR HER GENDER IDENTITY  SHALL
 NOT  BE  PLACED  IN  PROTECTIVE  CUSTODY  FOR MORE THAN THIRTY DAYS AS A
 RESULT OF SUCH HARASSMENT, VIOLENCE OR THREATS OF VIOLENCE, AND MUST  BE
 HOUSED  IN A LEAST-RESTRICTIVE SETTING WHERE HE OR SHE WILL BE SAFE FROM
 SUCH BEHAVIOR.
   § 4. Section 500-k of the correction law, as amended by chapter  2  of
 the laws of 2008, is amended to read as follows:
   §  500-k. Treatment of inmates. Subdivisions five [and], six AND SEVEN
 of section one hundred thirty-seven of this chapter,  except  paragraphs
 (d)  and  (e) of subdivision six of such section, relating to the treat-
 ment of inmates in  state  correctional  facilities  are  applicable  to
 inmates  confined  in  county  jails; except that the report required by
 paragraph (f) of subdivision six of such section  shall  be  made  to  a
 person designated to receive such report in the rules and regulations of

 A. 5257--A                          3
 
 the state commission of correction, or in any county or city where there
 is a department of correction, to the head of such department.
   §  5.  This act shall take effect immediately; provided, however, that
 the amendments to section 500-b of the correction law  made  by  section
 three  of this act shall not affect the repeal of such section and shall
 be deemed repealed therewith.