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California gender identity prison placement law discriminates against women: state consultant

SB 132 should be amended to remove preference for transgender transfers in housing, complaints against female inmates, says report commissioned by corrections department.

Published: March 10, 2023 2:49pm

Updated: March 10, 2023 11:36pm

California's gender identity law for prison placement has not only disfavored female inmates in its implementation, but inherently denies them the privileges granted to male inmates who identify as women, according to a correctional consulting firm report commissioned by the California Department of Corrections and Rehabilitation.

Those findings and recommendations are not written in plain English in the November report by The Moss Group, which was made public only last week, or acknowledged in CDCR's press release highlighting sections of the report that praise its implementation of SB 132. 

The department is already under legislative scrutiny for failing to explain why it gave "early-release credits" to inmates including Sacramento mass shooting suspect Smiley Martin. Public Safety Committee Democrats voted down an Assembly bill to open those records this week, saying it threatened inmate privacy even while complaining about CDCR's obfuscation.

SB 132 requires only self-identification as a woman — not surgical or hormonal treatments — for male inmates to receive transfers to women's prisons, a provision that worried a transgender advocacy group. The state's lawyers argued last year that coed placement was comparable to different races sharing a cell.

The gender-critical Women's Liberation Front (WoLF), which is representing female inmates challenging the law on 1st, 8th and 14th Amendment grounds, said The Moss Group report affirms the "dangerous conditions" they have repeatedly raised in legal filings, even as it tries to "gaslight incarcerated women into thinking they just have 'bias' and 'anxiety' related to being housed with violent men."

The 37-page report portrays prison staff and "cisgender women" as initially overblowing the risk despite several documented transfers of men convicted of killing and sexually assaulting children before they applied for women's prisons.

Many "shared variations on the theme that their fears prior to the implementation of gender identity based housing" — which started administratively before SB 132 codified and accelerated the process — "were much worse than the reality" of varying experiences for transgender, nonbinary and intersex (TGNBI) transfers.

"It is likely that anticipatory anxiety and the unintended impacts of associated biases, myths, and misperceptions contributed to the difference in perceived attention to concerns between cisgender and TGNBI incarcerated individuals," the report says. 

The report views "denial of identity" and "criminogenic or anti-social behavior" as equally valid threats to safety, which WoLF regards as placing male comfort on the same level as female vulnerability.

While the report refers to "sexual assault" and "sexual abuse" only six times, it refers to "pronouns" more than 20 times and recommends entering preferred pronouns for all inmates to "normalize sharing and using" them. If implemented, WoLF said in a response released Wednesday, this would strengthen its First Amendment claim that mandating this "quasi-spiritual ideology of gender" is an "establishment of a state religion."

But the report also acknowledges "reported increases in possession and manufacturing of weapons, gang activity, [Prison Rape Elimination Act] allegations, drug and alcohol use, and more sophisticated criminal behavior, such as a drone drop of drugs by a transgender woman who was transferred under SB 132." 

The law's preferential treatment of TGNBI transfers is clear, the report admits, granting them the exclusive option to have "single cells, the choice of cellmates, and ability to remove other individuals from any location, solely based on the status as an SB 132 individual."

Staff and inmates said that female inmates who raise "personal safety concerns" about a transgender woman's presence in the room would themselves be "written up and removed from the room." This has not only "evoked fear" in female inmates but led to "rejection of transgender women[,] triggering a cycle of anger, divisiveness, and loss."

The report recommends CDCR ask the Legislature to replace the law's TGNBI-specific provisions on housing and removal of other inmates with a guarantee that all inmates' housing preferences will be "taken into consideration as a part of the overall placement process."

WoLF called this a "stark admission" by experts that the law is "facially unconstitutional" by violating women's right to equal protection under the law. SB 132's sponsor, Democratic Sen. Scott Wiener, did not respond to queries about his interest in the report's suggested amendments.

Female inmates appear to be gaming the self-identification process as well to secure TGNBI perks, the report says, citing the "Transgender Access Cards" required to obtain "clothing consistent with gender-identity," including for females who identify as men. 

The Central California Women's Facility, the second largest women's prison in America, submitted a budget request for more male prison uniforms because cisgender women are apparently identifying as transgender men so they can get the more comfortable clothing, the report said. 

Leadership, staff and inmates all agreed TGNBI transfers get away with more violations because some have threatened to "engage an external resource such as an attorney or advocate" if punished, according to the report. "Cisgender and transgender women assessors" also said the transfers seem to have more leeway in "modifying clothing" than female inmates.

The Moss Group theorizes the law prompted an increase in "bad faith" PREA allegations against TGNBI transfers. Under PREA, such allegations automatically trigger "administrative segregation" of accused inmates until an investigation concludes. The authors cite a "widespread belief" among staff and inmates that allegations are used to settle scores.

WoLF denounced the report for repeatedly minimizing and delegitimizing women's reports of violence and harassment as "rumors" or on par with identity violations, even as The Moss Group admits "the scope and scale" of crimes committed by TGNBI transfers may dwarf those of female inmates.

CDCR did not respond to queries about its interest in the report's legislative recommendations, implication that SB 132 is facially unconstitutional and explanation of the early-release credits situation.

The Moss Group didn't respond to a request to answer WoLF's criticism.

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